Orlov v National Standards Committee no 1 - [2014] NZCA 195

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.

____________________________________________________________________

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…

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.

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Details

Case: [2014] NZCA 195
Decision Date: 22 May 2014 at 11.00 am

CaseChat Overview and Summary

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.

Orders