O'Neill v Bridgman - [2019] NZCA 685

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA229/2019
[2019] NZCA 685

BETWEEN	CHRISTOPHER JOSEPH O’NEILL Appellant
AND	ANDREW BRIDGMAN First Respondent
AND	TANIA OTT Second Respondent
AND	CARL CRAFAR Third Respondent

Counsel:	Appellant in Person A F Todd and J B Watson for Respondents
Judgment: (On the papers)	20 December 2019 at 11.30 am

JUDGMENT OF COURTNEY J
[Review of Registrar’s decision]

A The application for review of the Deputy Registrar’s decision refusing to dispense with security for costs is declined.
B Security for costs in the sum of $6,600 must be paid by 13 January 2020.

__________________________________________________________________

REASONS

Introduction

On 13 May 2019 Mr O’Neill filed a notice of appeal (CA229/2019) against the judgment of Thomas J, striking out Mr O’Neill’s application for judicial review against the respondents, who are the former Secretary for Justice and two senior employees at the Ministry of Justice.[1]
[1]O’Neill v Bridgman [2019] NZHC 944.
Pursuant to r 35 of the Court of Appeal (Civil) Rules 2005, security for costs was set at $6,600. Mr O’Neill applied for dispensation from security for costs under r 35(6) on the ground of his inability to pay it. In a decision dated 13 August 2019, the Deputy Registrar declined the application and directed that security be paid by 3 September 2019.
Mr O’Neill seeks review of that decision.[2]

Relevant principles

[2]Court of Appeal (Civil) Rules 2005, r 5A(3).

The principles applicable to dispensation from security for costs were reviewed by the Supreme Court in Reekie v Attorney-General.[3] The Court stated that the Registrar should dispense with security if of the view that it is right to require the respondent to defend the judgment under challenge without the usual protection as to costs provided by security.[4] The Court explained:
[35] …we consider that the discretion to dispense with security should be exercised so as to:
(a) preserve access to the Court of Appeal by an impecunious appellant in the case of an appeal which a solvent appellant would reasonably wish to prosecute; and
(b)prevent the use of impecuniosity to secure the advantage of being able to prosecute an appeal which would not be sensibly pursued by a solvent litigant.
A reasonable and solvent litigant would not proceed with an appeal which is hopeless. Nor would a reasonable and solvent litigant proceed with an appeal where the benefits (economic or otherwise) to be obtained are outweighed by the costs (economic and otherwise) of the exercise (including the potential liability to contribute to the respondent's costs if unsuccessful). As should be apparent from what we have just said, analysis of costs and benefits should not be confined to those which can be measured in money.
[3]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.
[4]At [31].
The Court also ruled that the review function of the judge in relation to security for costs is to be exercised de novo.[5]

Deputy Registrar’s decision

[5]At [23].

After citing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read O'Neill v Bridgman and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NZCA 685
Decision Date: 20 December 2019 at 11.30 am

CaseChat Overview and Summary

In the case of O'Neill v Bridgman, the Court of Appeal of New Zealand was asked to review a decision made by the Deputy Registrar, who had declined an application by Mr O'Neill to be excused from paying security for costs in an appeal. Mr O'Neill sought to appeal against a judgment that had dismissed his application for judicial review of decisions made by the respondents, who were former Secretary for Justice and two senior employees at the Ministry of Justice. The Court of Appeal was asked to determine whether the Deputy Registrar had correctly exercised her discretion in requiring Mr O'Neill to pay security for costs.

The legal issue that the Court of Appeal had to decide was whether the Deputy Registrar had erred in her assessment of Mr O'Neill's application for dispensation from paying security for costs. The Court considered the principles that applied to the exercise of discretion to dispense with security for costs, as set out in Reekie v Attorney-General. The Court noted that the Deputy Registrar had considered the evidence submitted by Mr O'Neill and had come to the conclusion that he was not impecunious, as he had funds available in his bank accounts that he could use to pay the security for costs. The Court also noted that the Deputy Registrar had considered the merits of Mr O'Neill's appeal and had concluded that it appeared to lack merit.

The Court of Appeal upheld the Deputy Registrar's decision and declined Mr O'Neill's application for review. The Court found that the Deputy Registrar had correctly exercised her discretion in requiring Mr O'Neill to pay security for costs. The Court noted that Mr O'Neill had not provided any new information to challenge the Deputy Registrar's findings and that a reasonable and solvent appellant would not choose to pursue an appeal that appeared to lack merit. The Court therefore directed that security for costs in the sum of $6,600 must be paid by 13 January 2020, if the appeal was to be pursued.

Orders