Rafiq

[2013] NZHC 2843

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-004587 [2013] NZHC 2843

IN THE MATTER              of an application to review

BY  RAZDAN RAFIQ Applicant

Hearing:                   On the papers

Judgment:                29 October 2013

JUDGMENT OF VENNING J

(Review of Registrar's decision declining to waive filing fee)

This judgment was delivered by me on 29 October 2013 at 4.00 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Copy to:            Applicant

Rafiq [2013] NZHC 2843 [29 October 2013]

[1]      On 15 October 2013 Mr Rafiq filed an application for a fee waiver in relation to the filing fee for an appeal he wished to file on a decision of the District Court delivered  on  24  September 2013.    On  the same day,  15  October,  the Registrar declined Mr Rafiq’s application for fee waiver.

[2]      Mr Rafiq seeks to review the Registrar’s decision.

[3]      The   relevant   Regulation   is   the   High   Court   Fees   Regulations   2013, particularly clauses 18 and 19.

18       Power to waive fees

(1)       A person otherwise responsible for the payment of a fee required in connection with a proceeding or an intended proceeding may apply to a Registrar for a waiver of the fee.

(2)       The  Registrar  may  waive  the  fee  payable  by  the  person  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.

(3)       An application under subclause (1) must be made in a form approved for the purpose by the chief executive of the Ministry of Justice unless,   in   a   particular  case,   the   Registrar   considers   that   an application in that form is not necessary.

19Criteria for determining when person unable to pay fee sought to be waived

For the purposes of these regulations, a person is unable to pay the fee sought to be waived if—

(a)       the person has been granted legal aid in respect of the matter for which the fee is payable; or

(b)      the person—

(i)        is dependent for the payment of his or her living expenses on an income-tested benefit (which has the meaning given in section 3(1) of the Social Security Act 1964, except that it excludes the benefits specified in paragraphs (f) to (i) of that definition); or

(ii)      is wholly dependent for the payment of his or her living expenses on New Zealand superannuation under the New Zealand Superannuation and Retirement Income Act 2001 or a veteran's pension under the War Pensions Act 1954; or

(iii)      would otherwise suffer undue financial hardship if he or she paid the fee.

[4]      It appears the appeal relates to Mr Rafiq’s claim against the Ardmore Flying School.  He paid substantial sums of money to the school.  In the District Court he sought a refund of part of the moneys paid.   On 24 September 2013 Judge P A Cunningham struck out the proceedings as, following Mr Rafiq’s bankruptcy, the Official Assignee did not intend to pursue the claim.  Regulation 18(2)(b) does not apply.

[5]      The only issue is whether reg 18(2)(a) applies.  That engages consideration of reg 19.  Regulation 19(a) does not apply.  There is no suggestion in the papers that reg 19(b)(i) or (ii) applies.  The remaining issue is whether it can be said Mr Rafiq would otherwise suffer undue financial hardship if he paid the fee.

[6]      As Stevens J has noted:1

The payment of court fees is of importance to the operation of the courts system.   Those who make use of the courts are asked to contribute a proportion  of  the  cost  of  proceedings,  so  that  the  burden  does  not  fall entirely on the taxpayer.   The mechanism of review by the Registrar and review by a Judge ensures that fees are not set at such a level that access to justice is denied to litigants.

[7]      In support of his application to waive fees Mr Rafiq has disclosed his income at a net income of $240 a week, stating it to be “self earned”.  No further details are disclosed.   He has referred to a student loan.   He has referred to outgoings of mortgage/rent of $140 and food/groceries of $100.   However he has provided no

information about the income of other members of his household.  In addition to the

1      Guy v BNZ [2013] NZCA 238 at [6].

student  loan Mr  Rafiq  has  provided  evidence  of costs  awards  in  favour of the

Commissioner of Inland Revenue and the Commissioner of Police.

[8]      Significantly Mr Rafiq was declared bankrupt on 1 August 2013.   It would appear those debts would be provable in his bankruptcy.

[9]      The fact that Mr Rafiq is bankrupt is not itself sufficient to conclude that it would cause undue hardship to require him to pay a filing fee. As Stevens J recently observed again in the case of Guy the fact that an applicant is bankrupt says nothing of his ability to access financial resources or other forms of material support.

[10]     The Supreme Court recently declined Mr Rafiq’s application for leave to appeal against a decision of Stevens J declining to waive a filing fee in the Court of Appeal.  As Stevens J noted in his decision no material relating to Mr Rafiq’s self- employed status was provided.2   While Mr Rafiq described himself as self-employed there was no indication of the nature or extent of any employment.  No tax returns were supplied.  There was no information provided to support the very general level

of expenses stated.  The same circumstances apply to this application.  Mr Rafiq then applied to the Registrar of the Supreme Court for waiver of the filing fee in that Court.  In a decision of 18 July 2013 the Court upheld the Registrar’s decision to decline that application.3

[11]     I conclude that on the information before the Registrar he was entitled to conclude that Mr Rafiq had not made out a case of undue hardship.  The information on the file does not establish that Mr Rafiq would suffer undue hardship if required to pay the filing fee. The application for review is dismissed.

[12]     There is a further consideration in this case.  The appeal purports to relate to money that Mr Rafiq seeks to recover.  On his bankruptcy all property claims passed to the Official Assignee.4   Mr Rafiq has no standing to bring the appeal.  The power

to waive the fee is discretionary.  Where an applicant has no standing to commence a

2      Rafiq v The Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZCA 243 at [10].

3      Rafiq v The Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZSC 72.

4      Insolvency Act 2006, s 101.

proceeding that is a further factor the Registrar may properly consider.  The Courts should not be clogged with proceedings filed by litigants with no standing to pursue

the claims they seek to advance.

Venning J