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…

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 Rafiq

Details

AGLC: Rafiq [2013] NZHC 2843
Case: [2013] NZHC 2843
Decision Date: 29 October 2013

CaseChat Overview and Summary

Mr Rafiq filed an application for a fee waiver in relation to the filing fee for an appeal he intended to file on a decision of the District Court. The Registrar declined the application, and Mr Rafiq sought a review of the Registrar's decision. The court was required to decide if the Registrar's decision to decline the fee waiver was correct. The relevant regulations considered were clauses 18 and 19 of the High Court Fees Regulations 2013. The court examined if Mr Rafiq satisfied the criteria for a fee waiver, specifically if he would suffer undue financial hardship if required to pay the filing fee. The court found that Mr Rafiq had not provided sufficient information to establish that he would suffer undue hardship if required to pay the filing fee. The court dismissed the application for review.

The court's reasoning was based on the information provided by Mr Rafiq, which was insufficient to establish undue hardship. The court noted that Mr Rafiq's bankruptcy did not necessarily mean he would suffer undue hardship if required to pay the filing fee. The court also considered that Mr Rafiq had no standing to bring the appeal, as all property claims passed to the Official Assignee upon his bankruptcy. The court concluded that the Registrar was entitled to decline the fee waiver application based on the information provided. The court dismissed the application for review.

Orders