Pascoe v Minister of Land Information
[2024] NZHC 2537
•5 September 2024
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2021-443-048 CIV-2024-443-008 CIV-2024-484-036 CIV-2024-485-048
[2024] NZHC 2537
UNDER The High Court Fees Regulations 2013 AND
The Review of Decisions of the Deputy Registrar, High Court
BETWEEN
TONY JAMES SOFUS PASCOE and DEBBIE ANN PASCOE
Applicants
AND
MINISTER OF LAND INFORMATION, and THE ENVIRONMENT COURT,
Interested Parties
Hearing: On the Papers Judgment:
5 September 2024
JUDGMENT OF CULL J
[Application for Review of Deputy Registrar’s Decisions]
[1] This is an application for review of the Deputy Registrar’s decisions, declining a request for Court fee refunds.
[2] Mr and Mrs Pascoe, the applicants, have commenced four proceedings in the High Court, challenging the Minister for Land Information’s (the Minister’s) decision to issue a notice of intention to acquire freehold and leasehold interests in their land under s 23 of the Public Works Act 1981, together with associated decisions and procedures of the Environment Court (the Proceedings). The Minister’s decision
Pascoes v Deputy Registrar [2024] NZHC 2537 [5 September 2024]
relates to taking part of the Pascoe’s farmland for the construction of the Te Ara o Te Ata (Mt Messenger Bypass) Project.
[3] In June 2024, the Pascoes applied to the Court for refund of fees in respect of the Proceedings. The Proceedings have been “grouped” to be dealt with together, notwithstanding the four distinct matters contained within the group. The Proceedings have been treated therefore as requiring only one payment of the relevant hearing fee, scheduling fee, and filing fee. This means only three applications were needed (and duly made) seeking repayment of the three fees, namely $3,200 in respect of the hearing fee, $640 in respect of the scheduling fee, and $540 in respect of the filing fee (the Refund Applications).
[4] The Refund Applications were declined by a Deputy Registrar of the Wellington High Court on 21 June 2024 (the Decisions). First, it was not clear whether the Proceedings concerned a matter of genuine public interest. Further, the Deputy Registrar was not satisfied the Pascoes were unable to pay the fees. The Pascoes have now applied to review the Deputy Registrar’s Decisions (the Review Applications).
[5] Currently, the Proceedings are at various stages. It is not necessary to go into any great detail about their particulars but, relevantly, I note that the “original” judicial review proceeding issued against the Minister challenging (amongst other things) delegation of his powers to negotiate under s 18 of the Act were determined in part by Grice J in 2022.1 Her Honour determined preliminary issues in the Minister’s favour, but the balance of the proceeding was stayed pending the Environment Court’s forthcoming decision regarding the Pascoes’ objection to the notice of intention to take land. The Court of Appeal is currently considering the Pascoes’ appeal of Grice J’s decision.
Waiving and refunding fees
[6] Section 157 of the Senior Courts Act 2016 allows regulations to be made authorising a Registrar or Deputy Registrar to waive, reduce, or postpone the payment of a fee required in connection with a proceeding, or refund a fee wholly or in part that
1 Pascoe v Minister of Land Information [2022] NZHC 3173.
has already been paid. The stated purpose for this in subs (1) is “In order to promote access to justice …”. Subsections (2) and (3) provide:
(2)Regulations made under subsection (1) must provide that a Registrar or Deputy Registrar may only exercise a power under the regulations if he or she is satisfied on the basis of prescribed criteria that—
(a)the person responsible for payment of the fee is unable to pay or absorb the fee in whole or in part; or
(b)unless 1 or more of those powers are exercised in respect of a proceeding that concerns a matter of genuine public interest, the proceeding is unlikely to be commenced or continued.
(3)For the purposes of subsection (2), regulations may prescribe criteria—
(a)for assessing a person’s ability to pay a fee; and
(b)for identifying proceedings that concern matters of genuine public interest.
[7] The relevant regulations regarding the payment of fees to the Court are the High Court Fees Regulations 2013 (the Regulations). A person may apply to a Registrar (including a Deputy Registrar) for waiver of a fee connected with a proceeding under reg 18(1). Regulation 18(2) provides that the Registrar may waive the fee payable if satisfied:
(a)on the basis of one of the criteria specified in regulation 19, that the person is unable to pay the fee; or
(b)that the proceeding,—
(i)on the basis of one of the criteria specified in regulation 20, concerns a matter of genuine public interest; and
(ii)is unlikely to be commenced or continued unless the fee is waived.
[8] Regulation 19 explains that a person is considered “unable to pay the fee” where they have been granted legal aid, are dependent on a specified benefit or superannuation, or “would otherwise suffer undue financial hardship if he or she paid the fee”. Regulation 20 relevantly states:
20 Criteria for determining when proceeding concerns matter of genuine public interest
For the purposes of these regulations, a proceeding that concerns a matter of genuine public interest is—
(a)a proceeding that has been or is intended to be commenced to determine a question of law that is of significant interest to the public or to a substantial section of the public; or
(b)a proceeding that—
(i)raises issues of significant interest to the public or to a substantial section of the public; and
(ii)has been or is intended to be commenced by an organisation that, by its governing enactment, constitution, or rules, is expressly or by necessary implication required to promote matters in the public interest.
[9] Where a person has already paid the fees, they are able to later seek a refund under reg 23. A Registrar may refund a fee if satisfied that:2
(a)no application, under regulation 18, for a waiver of the fee was made; and
(b)the fee would have been waived, in accordance with regulation 18, had that application been made; and
(c)the criteria that would have justified that waiver still apply at the date of the application for the refund.
[10] The drafting of reg 23 suggests that the refund application is to be assessed on the basis of the circumstances as they would have been if a fee waiver was made under reg 18 at the commencement of proceedings. As set out in reg 23(1)(c), these circumstances must still be present at the time the refund application is made.
The applications
The Refund Applications
[11] The three Refund Applications all gave the same reasons for requesting a fee refund. I deal with them together.
[12] The Pascoes gave details of their financial hardship stating that they have invoices in excess of $70,000 due to be paid from their bank accounts, which contain
2 High Court Fees Regulations 2013, reg 23(1).
their farming, business, and personal funds, including superannuation. One farming account is $18,362.51 in overdraft, another has $8,500 deposited, and the Pascoes’ personal account has a balance of $20,596.77. The assets listed included their house and ancestral land, farm vehicles, and livestock.
[13]As to liabilities, the Pascoes have a mortgage over their house and land for
$243,000. Interest on the land only is at $2063.84 per month at 10 per cent per annum. The Refund Applications also note a number of other debts due, including the following:
(a)Gordon Advisory — $4,322.85;
(b)Quay Chambers — $61,049.70;
(c)Farm Source — $362.69;
(d)Northcott Contracting Haulage — $1,270.75;
(e)New Plymouth District Council Dog Registration — $304.00.
(f)NZTA Registration — $211.10.
[14] The Pascoes’ weekly living expenses are stated as being $455. The Pascoes received a total of $12,000 for the tax year ending 31 March 2022 in income and they had a farming loss of $17,794 for the tax year ending 31 March 2023.
[15] In response to the question on the application form stating “Is there anything else you’d like to tell us about your inability to pay?”, the Pascoes responded:
We have incurred a personal loss to carry forward [$]134,000 as at 31 March 2022
This has occurred as a result of impacts on us since 2016 from the Mt Messenger bypass project
There is further unresolved damage to us and our land that is relevant to this application which has amounted to economic duress. The Court of Appeal has found that we are impecunious.
We have a personal loss of $161446.90 as at 31 March 2023.
[16] The Pascoes claim that their proceedings are of public interest because “These issues affect all Land owners in NZ” and the Minister needed to negotiate with them
under s 18 of the Public Works Act. The Pascoes indicated that they would continue with the Proceedings even if a fee waiver was declined, stating that they wanted the Proceedings to continue while the waiver was being processed because they would suffer significant prejudice as it relates “to the Minister of Land taking our Home + Land from us”.
The Deputy Registrar’s Decisions
[17] The Deputy Registrar declined the three applications and notified his decisions by letters dated 21 June 2024. As with the three Refund Applications, three letters were sent providing the same reasons for refusal.
[18] The Deputy Registrar’s letters identify the requirements under the Regulations for waiving the fees being public interest or financial hardship grounds. As to the public interest ground for waiver, the letters state that the Refund Applications did not deal with the requirements in reg 20, the Refund Applications neither addresses the issue or question of law, nor do they explain the significant interest to the public. The Deputy Registrar was therefore not satisfied the Proceedings were a matter of genuine public interest.
[19] As to the financial hardship ground, the letter explains that the Pascoes have disclosed they have $20,596.77 available to them in their personal bank account. Although the Pascoes assert in their applications that there are invoices payable of more than $70,000, such invoices were not provided. The Deputy Registrar was not satisfied therefore that the Pascoes were unable to pay the fees.
[20] The Deputy Registrar concluded by advising the Pascoes that they had 20 working days till 22 July 2024 to review the Decisions.
[21] In response to this, on 14 August 2024, the Pascoes emailed the Deputy Registrar attaching the relevant invoices. The Pascoes were informed that the time for filing an appeal from the Decisions had passed, but they could apply to a Judge for special consideration by memorandum with the material attached to it.
The Review Applications
[22] The Review Applications provide the same information and I deal with them together. The Pascoes advanced their grounds for seeking a review of the Decisions on the review application form and in an appended typed document. They can be summarised as follows:
(a)The purpose of the Regulations is to promote access to justice as per s 157(1) of the Senior Courts Act.
(b)The Pascoes do not have a computer or internet access at home. They do not have the capability of using such equipment and Mr Pascoe has “limited literacy capabilities”. They rely on the assistance of the Courts and others.
(c)The Court of Appeal granted a waiver for payment of security for costs on the basis that the Pascoes were impecunious.3
(d)The issues and values at stake are important to the Pascoes and directly affect their home and farm, their wellbeing, income, identity, and connection with the land. Mr Pascoe’s health has deteriorated since the Proceedings started. The “proposed taking depriving [the Pascoes] of somewhere tenable to live and the ability to make a living is barbaric and an abomination”.
(e)The Deputy Registrar could have just requested the invoices be sent, instead of refusing the Refund Applications altogether. The Pascoes have previously applied for and been granted waivers without the need for invoices.
(f)It is also unclear why the invoices were not accepted when they were attached by email and a memorandum was required. The application forms used for the Review Applications are more appropriate than a
3 Pascoe v Minister for Land Information CA87/2023, 31 May 2023 (Letter of Deputy Registrar McGrath).
memorandum in any event, as they are available online, as their litigation assistant found.
Discussion
[23] It is relevant to my consideration on review that the Court of Appeal waived the need for security for costs in respect of the Pascoes’ appeal because of their impecuniosity. This conclusion was reached for the same reasons as advanced here, namely, that the Pascoes are suffering net losses, have limited funds, an over-drafted account, and loans over $243,000.
[24] The Court of Appeal’s grant of waiver for security of costs was made in May 2023. In June 2024, the Pascoes’ filed their refund applications in this Court. I can find no material change in the Pascoes’ financial circumstances such that a conclusion of impecuniosity should not apply here also. I accept therefore that, had a fee waiver application been made when these Proceedings were commenced, the fees would likely have been waived on the grounds that requiring the Pascoes to pay Court fees would result in financial hardship for them. It appears the Pascoes have had a limited income for some time. There is no indication that their circumstances have changed since the waiver from the Court of Appeal.
[25] I also consider that these Proceedings concern a matter of genuine public interest as reg 20 stipulates. The Proceedings concern a large public infrastructure project and a challenge to the delegation of the Minister’s powers under the Public Works Act to Land Information New Zealand (LINZ). Given the extensive and significant powers of the Minister under the Public Works Act, and its application to all public works and all land in New Zealand, the Proceedings clearly raise issues of law and policy that is of significant interest to the public.
[26] Indeed, the scheme of the Public Works Act exists in order to enable projects in the public interest.4 It is also relevant that O’Gorman J recently declined a stay application filed by the Pascoes because of the “public interest” implications of
4 Dromgool v Minister for Land Information [2022] NZSC 157, [2022] 1 NZLR 716 at [157].
continuing to delay construction of the Mt Messenger bypass.5 Justice Grice’s 2022 decision is the current authority on the Minister’s power to delegate negotiating powers under s 18 of the Public Works Act. It is therefore not the case that the substantive issues of law raised in the Proceedings are settled ones, which also weighs in favour of finding that the Proceedings concern a question of law that is of significant and genuine public interest. As noted above, the Proceedings are currently before the Court of Appeal.
[27] Given my conclusion above, that the Pascoes have limited funds, and notwithstanding the Pascoes’ own declaration that they will continue pursuing their claims if fee waivers/refunds are refused, I consider that the Pascoes have met the threshold of undue financial hardship and their application should be granted.
Conclusion
[28] The application for the review of the Deputy Registrar’s decisions is granted and the Court fees are to be refunded as sought.
Cull J
5 Pascoe v Environment Court [2024] NZHC 876 at [19(e)].
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