Reid v Nattrass HC Palmerston North CIV 2010-454-448

[2010] NZHC 1536

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV 2010-454-448

UNDER  the Judicature Act 1908, the Crimes Act

1961, the Summary Proceedings Act 1957, the District Courts Rules 1992, the Oaths and Declarations Act 1957 and the New Zealand Bill of Rights Act 1990

IN THE MATTER OF     an appeal of orders of the Dannevirke District Court refusing to adjourn and dismissing a criminal prosecution

AND

IN THE MATTER OF     a judicial review under s 100B of the

Judicature Act 1908

BETWEEN  JAMES ROBERT REID Appellant

ANDEVAN MATTHEW NATTRASS Respondent

Hearing:

25 August 2010

Counsel:

(Heard at Wellington)

On papers

Judgment:

25 August 2010

JUDGMENT OF MILLER J

[1]      Mr Reid seeks review of the Registrar’s refusal to waive a filing fee for a purported appeal from District Court decisions in his private summary prosecution of the respondent.   The District Court refused Mr Reid’s adjournment and, Mr Reid

having elected not to call evidence, dismissed the charge.

JAMES ROBERT REID V EVAN MATTHEW NATTRASS HC PMN CIV 2010-454-448  25 August 2010

[2]      Mr Reid further seeks by interlocutory application a direction that the appeal against the refusal to waive the filing fee be heard by a full Court with the benefit of an amicus, saying that the practice of refusing waivers persecutes advocates acting in the public interest and defies Parliament’s intention that the court should promote access to justice;  further, the fee waiver regime is being administered in a haphazard manner and it is necessary to resolve differences among High Court Judges about the regime.

[3]      The first question is whether a fee payable at all, since Mr Reid has purported to file an appeal against dismissal of a criminal prosecution.   I am satisfied that a filing fee is indeed payable under the High Court Fees Regulations 2001, for the “appeal” is in fact a civil proceeding.  An informant has no general right of appeal from the dismissal of an information.  (He can appeal on a question of law by way of case stated, and an appeal may be brought against sentence.)   The only avenue available for Mr Reid in the present circumstances is judicial review.  That was the course adopted in another criminal prosecution by Mr Reid that was dismissed by a

District Court Judge, Reid v The District Court at Dannevirke and Gerbich.[1]

[1] HC Wellington CIV 2008-485-1617, 29 March 2010 Ronald Young J

[4]      Mr Reid’s primary contention is that his case raises matters of great public interest.  That is not so.  His prosecution failed because, despite being on notice of the hearing, he failed to get his case ready, seeming to lack any appreciation of the obligations of a prosecutor.   The Judge described his approach as casual and not diligent.  The decision is a straightforward application of fair trial principles, raising no issue of public importance.  Mr Reid says that his complaint about fee waivers is important, but the “genuine public interest” that may justify a waiver in terms or Reg

6 is an interest in the proceeding; that is, in the appeal, not the waiver.   The Regulations proceed on the premise that even where a proceeding does involve some public interest the plaintiff should pay court fees where he is able to do so.

[5]      The Deputy Registrar considered that the proceeding appeared to raise no matters of genuine public interest.  In addition to that, I observe that Mr Reid did not claim that the appeal was unlikely to be pursued if the fee was required.  Nor did he

complain that he could not pay it.   On the contrary, he accepted that he can pay, stating:

I have limited resources but have $1100 in the bank so financial considerations are irrelevant.  Waiver of the fee is a persuasive prerequisite to dispensing of security, waiver of the setting down fee and costs.

[6]      In the circumstances, the Registrar had no option but to refuse to waive the filing fee, for neither of the available grounds in Reg 6(2) was made out.   His decision is confirmed.

[7]      If  Mr  Reid  wishes  to  pursue  the  proceeding,  he  will  need  to  file  an application for judicial review in proper form and pay the filing fee.  The Registrar should not accept papers for filing unless the filing fee is paid at the time of filing.

Miller J