Rabson v Transparency International New Zealand Inc

IN THE COURT OF APPEAL OF NEW ZEALAND

CA156/2015
[2015] NZCA 543

BETWEEN	MALCOLM EDWARD RABSON AND RICHARD JOHN CRESER Appellants
AND	TRANSPARENCY INTERNATIONAL NEW ZEALAND INCORPORATED Respondent

Hearing:	9 November 2015
Court:	Wild, Miller and Cooper JJ
Counsel:	No appearance by or for Appellants D R Kalderimis and K E Yesberg for Respondent
Judgment:	12 November 2015 at 2.30 pm

JUDGMENT OF THE COURT

AThe application is granted and the appeal struck out.
BThe appellants are to pay the respondent’s costs of the application as for an application for leave to appeal on a band A basis plus usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

This is an application by the respondent under r 37(1) of the Court of Appeal (Civil) Rules 2005 to strike out this appeal.
The appeal was filed on 26 March 2015. It is against a judgment delivered in the High Court at Wellington on 3 March by Mallon J.[1] Mallon J struck out the appellants’ proceeding against the respondent. In her judgment, Mallon J expressed her satisfaction “that the proceeding has no prospect of success”.[2] She took the view that the way in which the respondent had dealt with an inquiry Mr Siemer had made on behalf of the appellants (although without disclosing that he was inquiring on their behalf) was not amenable to review: it was not a decision of a public nature although Mr Siemer was inquiring about matters of public interest.
[1]Rabson v Transparency International (New Zealand) Inc [2015] NZHC 334.
[2]At [22].
The Deputy Registrar declined the appellants’ application to dispense with security for the costs of the appeal. On review, that decision was upheld by Randerson J.[3] The Supreme Court refused leave to appeal from that judgment.[4] The Supreme Court also declined a subsequent application for recall of its leave decision.[5]
[3]Rabson v Transparency International New Zealand Inc [2015] NZCA 188.
[4]Rabson v Transparency International New Zealand Inc [2015] NZSC 111.
[5]Rabson v Transparency International New Zealand Inc [2015] NZSC 121.
The appellant Mr Rabson had also applied on 9 June for a four-month extension of time for the appellants to file their case on appeal and apply for a hearing date. In a minute and direction issued on 4 August, Wild J declined to deal with that application, on the basis that there was no point in doing so unless and until the appellants gave security for the costs of the appeal.[6] The appellant Mr Rabson applied to the Supreme Court for leave to appeal from that minute and direction, which he termed a “non‑decision”.[7] The Supreme Court refused leave to appeal.[8] The Supreme Court subsequently dismissed an application by Mr Rabson for recall of its judgment refusing leave.[9]
[6]Rabson v Transparency International New Zealand Inc CA156/2015, 4 August 2015 (Minute and Directions of Wild J).
[7]Rabson v Transparency International New Zealand Inc CA156/2015, 1 September 2015 (Minute (No 2) and Direction of Wild J) at [4].
[8]Rabson v Transparency International New Zealand Inc [2015] NZSC 145.
[9]Rabson v Transparency International New Zealand Inc [2015] NZSC 153.
Security for the costs of this appeal is required and must be given before the appellants can apply for a hearing date. Security has not been given. Accordingly, the respondent’s application to strike out the appeal is properly grounded and must succeed.
Additionally — and significantly — there was no appearance by or for the appellants when this application was heard on 9 November.
For all those reasons, this appeal is struck out.
The appellants are to pay the respondent’s costs of the application as for an application for leave to appeal on a band A basis plus usual disbursements.

Solicitors:
Chapman Tripp, Wellington for Respondent

CaseChat Overview and Summary

The Court of Appeal was asked to consider an application by Transparency International New Zealand Incorporated to strike out an appeal brought by Malcolm Edward Rabson and Richard John Creser. The appeal was against a decision of Mallon J in the High Court, which had dismissed their claim against the respondent. Mallon J found that the respondent’s handling of an inquiry made on behalf of the appellants by Mr Siemer was not amenable to review, as it was not a decision of a public nature despite the public interest in the matters inquired about. The appellants had previously been refused security for the costs of the appeal and leave to appeal from that refusal, as well as recall of the leave decision.

The key legal issues were whether the appeal had any prospect of success and whether the appellants had complied with the rules regarding security for costs. The Court considered whether the appeal was frivolous or vexatious and whether the appellants had demonstrated any reasonable prospect of success. Additionally, the Court had to determine whether the appellants’ failure to provide security for the costs of the appeal warranted the striking out of the appeal.

The Court of Appeal found that the appeal had no prospect of success and that the appellants had not complied with the requirement to provide security for the costs of the appeal. There was also no appearance by or for the appellants when the application was heard. The Court held that the appeal was properly grounded and must succeed. The appellants were ordered to pay the respondent’s costs of the application as for an application for leave to appeal on a band A basis plus usual disbursements.

The appeal was struck out, and the appellants were ordered to pay the respondent’s costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established