Rafiq v The Chief Executive of the Ministry of Business, Innovation and Employment

[2013] NZCA 243

IN THE COURT OF APPEAL OF NEW ZEALAND

CA340/2013
[2013] NZCA 243

BETWEEN	RAZDAN RAFIQ Appellant
AND	THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Respondent

Counsel:

Appellant in person
W N Fotherby and A R Longdill for Respondent

Judgment:

(On the papers)

20 June 2013 at 3.00 pm

JUDGMENT OF STEVENS J
(Review of Registrar’s decision declining to waive filing fee)

The application to review the Registrar’s decision declining to waive the filing fee is dismissed.

____________________________________________________________________

REASONS

Introduction

1. The appellant, Razdan Rafiq, has applied to review the Registrar’s decision declining to waive the filing fee of $1,087.50.  The appeal itself is against a decision of Priestley J in the High Court ordering the appellant to pay the sum of $6,368 to the Registrar of the High Court within 20 working days as security for costs.[1]

   [1]Rafiq v The Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC 1134.

2. The application to the Registrar was made under reg 5 of the Court of Appeal Fees Regulations 2001 (the Regulations).  I have personally considered the application to review the Registrar’s decision under s 100B of the Judicature Act 1908.  I may confirm, modify or revoke the decision of the Registrar as I see fit.[2]

The Registrar’s decision

[2]Judicature Act 1908, ss 61A(3) and 100B(5).

1. The application to the Registrar was filed with the appeal on 29 May 2013.  Under reg 5 the Registrar may waive a fee connected with a proceeding if satisfied that the appellant is unable to pay the filing fee or the proceeding concerns a matter of genuine public interest and is unlikely to progress unless the fee is waived.[3]  The appellant applied for a waiver of the fee only on the basis of an inability to pay the filing fee.  That was appropriate because this appeal does not raise a point of law concerning a matter of genuine public interest.

   [3]Court of Appeal Fees Regulations 2001, reg 5(2)(a) and (b).

2. On 30 May 2013 the Registrar wrote to the appellant in the following terms:

   I have considered your application for waiver of the filing fee.  I am unable to make a decision on this at present as I require more detailed information on your financial situation.  The contents of your declaration states you are self-employed.  Please forward to me, by the close of business Friday 7 June 2013 a copy of your last three months bank statements for all bank accounts you hold.  I also require you to advise me as to whether you are a beneficiary of any trusts.

   I have accepted your appeal pending receipt of the further information.  The additional information will enable me to further consider your application and determine whether it should be granted.  If that information is not received by Friday 7 June 2013 this application will be declined and you will be required to pay the filing fee.

3. No further information on the appellant’s financial situation was provided.  The passing of the date of 7 June 2013 resulted in the application to waive the filing fee being declined.

4. The appellant has, on 14 June 2013, filed a “Memorandum of the Appellant to Seek Review of Decision of Registrar” which I have considered.

The fee waiver regime

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.  One review criterion is raised by this review.

2. The criterion in reg 5(3)(b)(iii) provides that payment of the fee may be waived on the ground of financial hardship only where it would cause financial hardship which is of such a degree that it is “undue”, namely, beyond the ordinary or greater than what is just and right.[4]  This is for the appellant to show.[5]

Discussion

[4]Boswell v Millar [2013] NZCA 219 at [6].

[5]Ibid; New Zealand Cards Ltd v Ramsay [2013] NZCA 72.

1. The memorandum filed in support of the review contains no further information relating to the appellant’s financial position.  In particular, no material relating to the appellant’s “self-employed” status is provided.

2. I have reviewed the material provided to the Registrar in support of the original application to waive the filing fee.  I am satisfied that the Registrar was well justified in giving the appellant a further opportunity to provide relevant information.  The appellant had described himself as “self-employed”, but there was no indication of the nature or extent of such employment.  No tax returns were supplied.  Neither did he provide any accounts for the business or businesses concerned.

3. By not providing sufficient relevant financial information, particularly in support of his review, the appellant has failed to discharge the onus on him of showing that the Registrar fell into error.  Certainly, the information on the file does not establish that the appellant will suffer undue financial hardship if required to pay the filing fee.

Result

1. For the reasons set out above, I am satisfied that the Registrar’s decision to decline to waive payment of the filing fee of $1,087.50 was correct.  I therefore dismiss the application under s 100B of the Judicature Act.  The appellant must pay the filing fee to the Registrar in relation to the present appeal if he wishes the appeal to proceed.

Solicitors:
Crown Solicitor, Auckland for Respondent