Prescott v Thompson - [2021] NZCA 186

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA478/2020
[2021] NZCA 186

BETWEEN	PETER RICHARD PRESCOTT Appellant
AND	VIOLET GEORGINA THOMPSON First Respondent AUCKLAND DISTRICT COURT Second Respondent

Counsel:	Appellant in person R E Harrison QC for First Respondent
Judgment: (On the papers)	14 May 2021 at 10.30 am

JUDGMENT OF COLLINS J
(Review of Deputy Registrar’s decision)

The application to review the Deputy Registrar’s decision is declined.

____________________________________________________________________

REASONS

Introduction

Mr Prescott applies for review of a Deputy Registrar’s decision. The Deputy Registrar had declined Mr Prescott’s application to dispense with security for costs in his appeal against a High Court costs decision.

Background

Mr Prescott applied for judicial review against a District Court decision. The District Court had refused to adjourn proceedings when Mr Prescott claimed he was unfit to attend. Mr Prescott argued this breached his right to natural justice under the New Zealand Bill of Rights Act 1990 (NZBORA).
The High Court gave two decisions:
(a)It dismissed Mr Prescott’s judicial review (Judicial Review decision).[1]
(b)It ordered costs against Mr Prescott (Costs decision).[2]
[1]Prescott v Thompson (No 2) [2020] NZHC 1004 [Judicial Review decision].
[2]Prescott v Thompson (No 3) [2020] NZHC 1858 [Costs decision].
Mr Prescott appeals against both decisions.
For both appeals, Mr Prescott was required to pay security for costs of $7,060. Mr Prescott applied for the Deputy Registrar to dispense with security for costs.
At the time of this judgment:
(a)The Deputy Registrar has not yet given a decision on security for costs in Mr Prescott’s appeal against the Judicial Review decision.
(b)The Deputy Registrar has declined to dispense with security for costs in Mr Prescott’s appeal against the Costs decision.
Mr Prescott now applies for a review of the Deputy Registrar’s decision to not dispense with security for costs in his appeal against the Costs decision.

Principles

Under the Court of Appeal (Civil) Rules 2005, r 35(2), the general rule is that an appellant must pay security for costs.
However, there are two exceptions:
(a)Under r 36, an appellant does not need to pay security for costs if, at the time the appeal is brought:
(i)they have applied for legal aid; and
(ii)the legal aid application has been granted or is still pending.
(b)Under r 35(6)(c), the Registrar can dispense with security for costs if satisfied that the circumstances warrant it.
Rule 35(6)(c) was considered in Reekie v Attorney-General, in which the Supreme Court said there are two categories of cases where security for costs should be dispensed with:[3]
(a)Where, if the appellant loses, it is unlikely that a costs order would be made against them.[4]
(b)Where, if the appellant loses, it is likely that a costs order would be made against them, but it is right to make the respondent defend the appeal without security for costs.
[3]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [19] and [21]. At the time, the second Reekie category only included impecuniosity,…

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.

Continue reading Prescott v Thompson

Details

AGLC: Prescott v Thompson [2021] NZCA 186
Case: [2021] NZCA 186
Decision Date: 14 May 2021 at 10.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application by Peter Richard Prescott for a review of a decision by the Deputy Registrar regarding security for costs in his appeal against a High Court costs decision. Prescott’s appeal concerned a District Court decision that had refused his application for an adjournment on the grounds of unfitness to attend, which he argued constituted a breach of his right to natural justice under the New Zealand Bill of Rights Act 1990. The High Court dismissed his judicial review and ordered costs against him. Prescott appealed both decisions but was required to pay security for costs in his appeals. He applied to the Deputy Registrar to be dispensed from this requirement but was refused in his appeal against the costs decision. The Court of Appeal considered whether the Deputy Registrar had correctly exercised his discretion in declining Prescott’s application.

The legal issues before the Court of Appeal were primarily whether the Deputy Registrar had correctly interpreted and applied the relevant rules and principles concerning the dispensing of security for costs in appeals. Specifically, the Court examined whether Prescott had genuinely applied for legal aid, whether it was unlikely that a costs order would be made if he lost, and whether there was sufficient public interest or impecuniosity to warrant dispensing with security for costs. The Court also had to determine if Prescott’s application for review contained any valid grounds that would justify setting aside the Deputy Registrar’s decision.

The Court of Appeal found that the Deputy Registrar had correctly declined Prescott’s application to dispense with security for costs. The Court held that Prescott’s claim of having applied for legal aid was unfounded, as the records did not show any application had been made on his behalf. Additionally, the Court agreed with the Deputy Registrar’s assessment that Prescott’s appeal lacked merit, which meant that even if he were impecunious, a solvent appellant would not reasonably pursue it. The Court also found no public interest in the appeal that would warrant dispensing with security for costs. Therefore, the Deputy Registrar’s decision was affirmed, and the application for review was declined.

Orders