Reid v Cottle

[2013] NZCA 620

IN THE COURT OF APPEAL OF NEW ZEALAND

CA363/2011
[2013] NZCA 620

BETWEEN

JAMES ROBERT REID
Applicant

AND

SUZANNE LYNNE COTTLE
First Respondent

COOPER RAPLEY LAWYERS
Second Respondent

Counsel:	Applicant in person P J Reardon for Respondents
Judgment:	6 December 2013 at 4 pm

JUDGMENT OF O’REGAN P
(Application to Review Deputy Registrar’s Decision)

The application for review of the Deputy Registrar’s decision as to waiver of the fee payable in respect of the applicant’s application for an extension of time to apply for hearing date and file the case on appeal is declined.  The fee of $1,087.50 must be paid within 20 working days of the date of this judgment.

____________________________________________________________________

REASONS

1. The applicant appealed against a decision of Joseph Williams J striking out his claims against the respondents.[1]  The applicant commenced that claim in his capacity as trustee of a trust called the Marangairoa Trust. 

   [1]Reid v Cottle HC Palmerston North CIV-2010-454-582, 17 May 2011.

2. The applicant did not apply for the allocation of a hearing date or file his case on appeal within the six month period then provided for in r 43 of the Court of Appeal (Civil) Rules 2005.  It thus became necessary for him to apply for an extension of time to take those steps.  He made an application for extension of time, but did not pay the filing fee.  Rather, he sought a waiver of the fee.

3. The waiver application was declined by the Deputy Registrar.  She noted that the waiver application was based on the grounds of public interest.  The applicant did not suggest that he could not afford to pay.  She determined that the situation did not meet the “public interest” criteria. 

4. In his application for review of this decision, the applicant said that the Registrar had failed to give consideration to the Court’s responsibility for the delays in preparation of the appeal.  He also said that court staff had mishandled “the transcript issue”.

5. Correspondence attached to the application for review indicated email correspondence with the Court and with the Ministry of Justice about the provision of a transcript of the hearing of the High Court proceeding, which resulted in the applicant’s claim being struck out.  The hearing did not involve any oral evidence and no recording was made.  Thus, it was impossible to provide a transcript.  This does not seem to have any direct relevance to whether the underlying appeal meets the public interest criteria set out in reg 5 of the Court of Appeal Fees Regulations 2011 (the Fees Regulations).

6. The delays to which the applicant refers were in relation to dealing with his application for an order dispensing with security for costs and similar procedural matters.  In essence he argues he should not have had to seek an extension of time.  This is also not a relevant consideration in relation to an application for waiver of the filing fee based on public interest grounds. 

7. In order to make a case for a waiver of the filing fee, the applicant needs to establish that the criteria specified in reg 5(4) of the Fees Regulations is met.  Regulation 5(4) provides:

   For the purposes of these regulations, a proceeding that concerns a matter of genuine public interest is—

   (a)a proceeding that has been or is intended to be commenced to determine a question of law that is of significant interest to the public or to a substantial section of the public; or

   (b)       a proceeding that—

   (i)raises issues of significant interest to the public or to a substantial section of the public; and

   (ii)is an appeal against a judgment, decree, or order given or made in a proceeding commenced by an organisation that, by its governing enactment, constitution, or rules, is expressly or by necessary implication required to promote matters in the public interest

8. The present appeal does not raise any question of law of significant interest to the public or a substantial section of the public.  Rather, it involves the application of established law to the particular facts of the case.  The reason the case was struck out in the High Court was because it was seen as an attempt to relitigate findings in an earlier High Court case, in respect of which an attempt to appeal to this court failed.  The applicant wishes to contest that finding in this court.  A determination of that matter will not involve any matter of significant public interest.

9. That being the case, there is no proper basis for a waiver of the filing fee in terms of reg 5 of the Fees Regulations.  I therefore uphold the Deputy Registrar’s decision.  The fee must now be paid within 20 working days.  Upon payment of the fee the Registrar should allocate a fixture in a miscellaneous motions list for the hearing of the application for extension of time.  Submissions have already been received, so no timetabling orders will be necessary. 

Solicitors:
Cooper Rapley Lawyers, Palmerston North for Respondents