Orlov v National Standards Committee no 1

IN THE COURT OF APPEAL OF NEW ZEALAND

CA127/2014
[2014] NZCA 195

BETWEEN	EVGENY ORLOV Appellant
AND	THE NATIONAL STANDARDS COMMITTEE NO 1 Respondent

Counsel:

Appellant in person
W C Pyke for Respondent

Judgment:

(On the papers)

22 May 2014 at 11.00 am

JUDGMENT OF STEVENS J

The applications to reduce the amount of security and for an extension of time to pay security are dismissed.

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REASONS

Mr Orlov’s appeal is set down for hearing in the Permanent Court on 27 May 2014. Neither the hearing fee nor the security for costs sum has been paid. The respondent has applied to strike the appeal out for non-payment of security.[1] That application will be heard on 27 May 2014.
[1]Minute of Ellen France J dated 20 May 2014.
The background is as follows. On 6 May 2014 Mr Orlov sought a review of a decision made by the Registrar on 2 May 2014 declining to dispense with security for costs of the appeal.
In a judgment given on 14 May 2014 Wild J dismissed the application to review the Registrar’s decision.[2] In that judgment the Judge gave the following direction:
[14] Given r 37, and the fact that Mr Orlov’s appeal is to be heard on 27 May, I direct that Mr Orlov is to provide the security [of $5,880] by 5 pm on Monday 19 May 2014 latest.
[2]Orlov v The National Standards Committee No 1 [2014] NZCA 182.
The judgment of Wild J made it clear that the Registrar had been correct not to entertain the application to dispense with security because it was out of time and there was no power to accept or consider a late application.[3] Even if the application were considered on the merits, there was no basis to dispense with security.[4]
[3]At [7]–[8].
[4]At [9]–[12].
Instead of paying the security as directed Mr Orlov filed an application to reduce security for costs or alternatively an application for extension of time to pay security for costs. The application relied on r 5 of the Court of Appeal (Civil) Rules 2005 (the Rules) and s 27 of the New Zealand Bill of Rights Act 1990.
The application is opposed by the respondent on the basis that the Registrar has already declined to make orders relating to security and an application for review of that decision has been dismissed by a Judge. Further, the application discloses no basis on which the orders sought might be made.
In the application, which is dated 16 May 2014, Mr Orlov says that the application would be supported by an affidavit “to be signed in due course”. He also says that he has filed an application for legal aid and that application “is currently being processed”.
The current position appears to be as follows:
(a)The security amount of $5,880 has still not be paid.
(b)Mr Orlov has not filed an affidavit in support.
(c)Mr Orlov has not provided any written advice to the Registrar that the application for legal aid has been determined.[5]
[5]Court of Appeal (Civil) Rules 2005, r 36(4).
I agree with the respondent’s contention that Mr Orlov has disclosed no basis upon which the orders sought may be made.
First the powers in r 5 do not assist Mr Orlov. Given the proximity of the hearing and the consequences of failure to comply with the requirement to pay security for costs (r 37 of the Rules), Wild J was correct to set a tight timeframe for compliance. A respondent should not be required to face an appeal hearing unless the appellant has provided protection for any possible costs award. No basis for extending that time to pay security has been advanced.
So far as a reduction of the amount of security is concerned, the position remains the same as when Wild J gave his judgment. No sufficient particulars have been provided by Mr Orlov to warrant a reduction in the amount of security.
With respect to the legal aid application, the case officer has received advice that the legal aid application has been returned to Mr Orlov. This was because it was not completed in the manner prescribed under s 14(1)(a) of the Legal Services Act 2011.
Accordingly there is no basis on which the orders sought should be made. The applications are dismissed. The direction of Wild J given in the judgment of 14 May 2014 stands and Mr Orlov is required to comply with it.

Solicitors:
New Zealand Law Society, Wellington for Respondent

The Court of Appeal of New Zealand heard an appeal by Mr Orlov against the National Standards Committee No 1. Mr Orlov sought a review of a decision by the Registrar, who declined to waive the requirement for security for costs for an appeal that was scheduled for 27 May 2014. The Registrar's decision was upheld by Wild J in a judgment delivered on 14 May 2014. Mr Orlov subsequently filed an application to reduce the amount of security or for an extension of time to pay security, arguing that the requirement was inconsistent with his rights under the New Zealand Bill of Rights Act 1990. The respondent opposed the application on the basis that it was without merit.

The court had to determine whether Mr Orlov's application for a reduction in security or extension of time had any legal basis. The court considered whether Mr Orlov had provided any new information or arguments that might justify a departure from the usual requirements. The court also examined whether the application was consistent with the rules and statutes that governed the matter. The court concluded that Mr Orlov had not demonstrated any grounds for the orders he sought. The court was of the view that the Registrar had correctly declined to waive the requirement for security, and that Wild J's judgment had properly applied the relevant rules. The court also found that Mr Orlov had not provided any new evidence or arguments that might warrant a reduction in the security amount.

The court dismissed Mr Orlov's application. The court found that there was no basis for reducing the amount of security or for extending the time to pay it. The court also found that Mr Orlov's legal aid application was not relevant to the matter before it. The court confirmed that the Registrar's direction for Mr Orlov to pay the security by 5 pm on 19 May 2014 remained in force. The court ordered that the application to reduce the amount of security and for an extension of time to pay security be dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established