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

1. 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

1. 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).

2. 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].

3. Mr Prescott appeals against both decisions.

4. 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. 

5. 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.

6. 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

1. Under the Court of Appeal (Civil) Rules 2005, r 35(2), the general rule is that an appellant must pay security for costs.

2. 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.

3. 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, but this was later expanded.  See McGuire v New Zealand Law Society [2020] NZCA 271 at [18].

   [4]For a recent example, see Better Public Media Trust v Attorney-General [2020] NZCA 290.

4. The second Reekie category, which is not closed, has two recognised subcategories:

   (a)If the appellant is excused by impecuniosity.[5]  This requires the appellant to establish he or she is impecunious and, that a solvent appellant would reasonably pursue the appeal.  This in turn requires establishing, amongst other matters, that the appeal has merit.

   (b)If there is public interest in the appeal.[6] 

Application to Deputy Registrar

[5]Reekie, above n 3, at [35] and [41].

[6]Banks v Ports of Auckland Ltd [2015] NZCA 150, (2015) 22 PRNZ 461; and Siemer v Complete Construction Ltd [2020] NZCA 350. This is a newer subcategory that does not require impecuniosity.

1. Mr Prescott relied upon two grounds when he applied for the Deputy Registrar to dispense with security for costs:

   (a)He had applied for legal aid.

   (b)If he lost, it was unlikely that a costs order would be made.

Deputy Registrar’s decision

1. The Deputy Registrar considered the two grounds that Mr Prescott raised and two further grounds that Mr Prescott had not raised.  The Deputy Registrar asked:

   (a)Had Mr Prescott applied for legal aid?

   (b)If Mr Prescott lost, was it unlikely that a costs order would be made?

   (c)Was Mr Prescott excused by impecuniosity?

   (d)Was there sufficient public interest to not require security for costs?

Had Mr Prescott applied for legal aid?

1. Mr Prescott claimed that, at the time his appeal was brought, he had applied for legal aid and his application was still pending.

2. The Deputy Registrar contacted Legal Aid Services, who confirmed that Mr Prescott had not applied for legal aid in his appeal against the Costs decision.  The Deputy Registrar therefore decided that s 36 did not apply.

If Mr Prescott lost, was it unlikely that a costs order would be made?

1. Mr Prescott claimed that there was a rule against ordering costs in NZBORA cases.  Mr Prescott further claimed that his appeal was an NZBORA case.

2. The Deputy Registrar concluded there was no such rule and therefore decided that, if Mr Prescott lost, it was likely that a costs order would be made.

Was Mr Prescott excused by impecuniosity?

1. The Deputy Registrar concluded there was not enough information to determine that Mr Prescott was impecunious.  The Deputy Registrar also decided that a solvent appellant would not pursue the appeal because it was meritless.

Was there sufficient public interest to not require security for costs?

1. The Deputy Registrar found that Mr Prescott’s appeal did not raise any novel points of law or affect anyone other than the parties.  The Deputy Registrar therefore decided that Mr Prescott’s appeal did not have any public interest.

Application for review

1. Mr Prescott applies for a review of the Deputy Registrar’s decision on two slightly different grounds:

   (a)He had applied for legal aid.

   (b)He was excused by impecuniosity.

Analysis

Had Mr Prescott applied for legal aid?

1. Mr Prescott admits that, at the time the appeal was brought, he had not made an application to Legal Aid Services.

2. However, Mr Prescott claims that he had contacted a legal aid lawyer and was waiting for her to make an application to Legal Aid Services.  Mr Prescott claims that this means he had applied for legal aid, and his application was pending.

3. Mr Prescott’s interpretation of s 36 is incorrect.  For an appellant in civil proceedings to have applied for legal aid, a legal aid lawyer must have made an application to Legal Aid Services on their behalf.

4. Security for costs therefore cannot be dispensed with on this ground.

Was Mr Prescott excused by impecuniosity?

1. Mr Prescott claims that he is impecunious and that the Deputy Registrar had enough information to find he was impecunious, or the Deputy Registrar should have given him a chance to prove it.

2. It is not necessary to decide whether Mr Prescott is impecunious because the Deputy Registrar also found that a solvent appellant would not reasonably pursue Mr Prescott’s appeal, because the appeal was meritless. 

3. The Deputy Registrar’s finding was plainly correct.  Nothing presented by Mr Prescott undermines the conclusion that his appeal is devoid of merit.

Result

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

Solicitors:
Richard Wood, Auckland for First Respondent