Re Tupou - [2018] NZHC 637

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-002123

[2018] NZHC 637

IN THE MATTER OF
an application by L Tupou for Review of Registrar’s/Deputy Registrar’s Decision for Waiver/Refund of Fees

Applicant

Hearing: [On the Papers]

Appearances:

L Tupou for the Applicant

Judgment:

11 April 2018

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 11 April 2018 at 10.00 am, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

To: L Tupou, Auckland

APPLICATION BY L TUPOU FOR REVIEW OF REGISTRAR’S DECISION [2018] NZHC 637 [11 April 2018]

Introduction

[1] Radio New Zealand (RNZ) applies to review a decision of the Deputy Registrar declining to waive the $30 fee for access to the court file for Commissioner of Police v Borlase.

[2] That court file concerns an application by the Commissioner of Police for restraining and forfeiture orders over Mr Borlase’s property following his convictions for corruption and bribery of public officials.1

[3] RNZ submits that the $30 fee should be waived because the Borlase proceeding involves matters in the public interest, and that the reporting of those matters is fundamental to the principle of open justice.

Legislative framework

[4] Regulations prescribing the fees payable for certain applications are authorised under s 156 of the Senior Courts Act 2016 (SCA). The High Court Fees Regulations 2013 prescribe the applicable fees for accessing the court file. If the request is made by a party to the proceeding, or a fee for searching the court record has already been paid, then no fee is payable. A fee of $30 is payable in any other case.

[5] The SCA governs the waiver of fees. Section 157 provides for regulations to be made allowing for the waiver of fees in certain circumstances. That section provides:

157 Regulations providing for waiver, etc, of fees

(1)In order to promote access to justice, the Governor-General may, by Order in Council, make regulations authorising a Registrar or Deputy Registrar of a senior court to waive, reduce, or postpone the payment of a fee required in connection with a proceeding or an intended proceeding, or to refund in whole or in part a fee that has already been paid.

(2)Regulations made under subsection (1) must provide that a Registrar or Deputy Registrar may only exercise a power under the regulations if he or she is satisfied on the basis of prescribed criteria that—

1 See R v Borlase [2016] NZHC 2971.

(a)the person responsible for payment of the fee is unable to pay or absorb the fee in whole or in part; or

(b)unless 1 or more of those powers are exercised in respect of a proceeding that concerns a matter of genuine public interest, the proceeding is unlikely to be commenced or continued.

(3)For the purposes of subsection (2), regulations may prescribe criteria—

(a)for assessing a person's ability to pay a fee; and

(b)for identifying proceedings that concern…

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 Re Tupou

Details

AGLC: Re Tupou [2018] NZHC 637
Case: [2018] NZHC 637
Decision Date: 11 April 2018

CaseChat Overview and Summary

Radio New Zealand (RNZ) applied to the High Court of New Zealand for a review of the Deputy Registrar's decision to decline to waive the $30 fee for accessing the court file in the case of Commissioner of Police v Borlase. The court file in question pertained to a civil proceeding following Mr. Borlase's convictions for corruption and bribery of public officials. RNZ argued that the fee should be waived because the matter involved significant public interest, and that reporting on it was essential to uphold the principle of open justice. The court had to determine the applicable legal provisions for waiving such fees and whether the circumstances warranted a waiver in this case.

The court examined the legislative framework, including the Senior Courts Act 2016 and the High Court Fees Regulations 2013. The applicable provisions included Section 157, which allows for the waiver of fees under certain conditions, and Section 161, which specifically addresses the waiver of fees for accessing court documents. The court also considered the High Court Fees Regulations 2013, which set out the basis for a Registrar to waive a fee. The court determined that the application fell under Section 161, which provides a more specific power for the waiver of fees for accessing documents. The key issue was whether RNZ should be required to pay the fee.

The court found that while there was a high public interest in the criminal proceedings that led to Mr. Borlase's convictions, the application for access was related to a subsequent civil proceeding seeking to restrain and forfeit Mr. Borlase's property. The court did not find this proceeding to attract the same level of public interest. Additionally, the court noted that the $30 fee was a small administrative cost and did not hinder media reporting. Therefore, the court declined to waive the fee, concluding that there was no reason RNZ should not be required to pay the $30 fee for accessing the court file.

The application for review was declined.

Orders