Reid v Tararua District Council

[2010] NZCA 329

IN THE COURT OF APPEAL OF NEW ZEALAND

CA452/2009
[2010] NZCA 329

BETWEENJAMES ROBERT REID

Appellant

ANDTARARUA DISTRICT COUNCIL

First Respondent

ANDPALMERSTON NORTH HIGH COURT

Second Respondent

CA799/2009

AND BETWEEN  JAMES ROBERT REID

Appellant

ANDTARARUA DISTRICT COUNCIL

First Respondent

Hearing:20 July 2010

Court:Glazebrook, Randerson and Stevens JJ

Counsel:Appellant in person

D J Neutze for Respondents

Judgment:27 July 2010 at 2.30 p.m.

JUDGMENT OF THE COURT

A        Both appeals CA452/2009 and CA799/2009 are struck out.

BThe appellant must pay to the respondent costs on an indemnity basis together with disbursements.

CThe respondent must file and serve a memorandum as to the quantum of costs within seven days of the date of delivery of this decision and the appellant must file and serve any memorandum in response within seven days thereafter.

REASONS OF THE COURT

(Given by Randerson J)

Background

[1]        In these appeals the appellant Mr Reid seeks to challenge refusals of his applications to waive filing fees in respect of proceedings in the High Court.  In both appeals, security for costs has been fixed in this Court but Mr Reid has failed to pay the security in the time provided by the Court of Appeal (Civil) Rules 2005.

[2]        The respondent Council applies for orders under r 37(1) striking out the appeals.

CA452/2009

[3]        On 6 May 2009 Hugh Williams J delivered a decision dismissing Mr Reid’s application to review a Registrar’s refusal to waive a filing fee of $400 in respect of a proceeding issued by Mr Reid against the Council.  The proceeding alleged conflict of interest, pre-determination and bias by members of a Council committee hearing submissions on the Council’s proposed District Plan.[1]  The filing fee was not paid. The Council applied to strike out the proceeding as having no prospects of success.  The Council also alleged the proceeding was vexatious and an abuse of process.  In a decision delivered on 19 June 2009, Miller J struck out the proceeding.  He ordered Mr Reid to pay costs to the Council.[2]

[1]      Reid v Tararua District Council HC Palmerston North CIV-2009-454-255, 6 May 2009.

[2]      Reid v Tararua District Council HC Palmerston North CIV-2009-454-255, 19 June 2009.

[4]        On 2 July 2009 Mr Reid filed an appeal against the judgments of both Hugh Williams J and Miller J.  Part of the relief sought in the notice of appeal was a waiver of filing fees in this Court and dispensation from payment of security.  By letter of 30 July 2009 the Registrar informed Mr Reid that security was fixed in the sum of $4,740.  Mr Reid sought a dispensation from the payment of security for costs by letter dated 3 August 2009.  Both the application to waive filing fees and the application to dispense with security were refused by the Registrar on 4 September 2009.

[5]        In response to further communications from the Court, Mr Reid wrote to the Registrar on 17 March 2010 outlining his grounds of appeal, raising issues about the refusal to waive the filing fee or dispense with security and applying for an extension of time under r 43 for filing an application for a hearing date and for filing the case on appeal. 

[6]        On 18 March 2010 the Council’s solicitors wrote to Mr Reid requesting payment of the outstanding security for costs within seven days and advising that the Council would apply to strike out the appeal if the security was not paid.  In the absence of payment, the Council filed its application to strike out the appeal on 23 April 2010.

[7]        We are satisfied the Council’s application to strike out the appeal should be granted.  Mr Reid made it clear in his submissions that he had no intention of paying the security or filing fees.  He claimed to be bringing the proceeding in the public interest and stated that, in the absence of a fee waiver, he would not be pursuing the appeal.  Mr Reid did not apply to review the Registrar’s refusal to dispense with security and has taken no steps to advance the appeal.  We are also satisfied for the reasons given by Miller J that the proceedings in the High Court were properly struck out as having no prospect of success.

Result

[8]        In the circumstances, there is no basis for extending the time to seek a fixture and file the case on appeal.  That application is dismissed.  The application by the Council to strike out the appeal is granted.

CA799/2009

[9]        On 3 December 2009 Gendall J confirmed a Registrar’s decision declining to waive a filing fee in a High Court proceeding seeking to appeal a decision of the Environment Court.[3]  Mr Reid filed an appeal against Gendall J’s decision on 18 December 2009.  By letter of 23 December 2009 Mr Reid was notified by the Registrar that security for costs was fixed in the sum of $4,740.  The Council’s solicitors wrote to Mr Reid on 18 March 2010 advising that the Council would apply to strike out the appeal if the security was not paid within seven days.  Payment not having been made, the Council applied on 22 April 2010 to strike out the appeal.

[3]Reid v Deputy Registrar at Palmerston North HC Palmerston North CIV-2009-454-790, 3 December 2009.

[10]      Mr Reid’s submissions in respect of this application to strike out were similar to those already canvassed in relation to CA452/2009.  We are satisfied that the application to strike out the appeal should be granted.  Mr Reid has not paid the security and made it clear he did not intend to do so unless the filing fees were waived.  He did not seek a dispensation from payment of security for costs.  His complaint that Arnold J wrongly struck out the Deputy Registrar of the High Court at Palmerston North as a second respondent has no relevance to the issues we have to determine.  The striking out of the Deputy Registrar as a party did not affect Mr Reid’s appeal against the Council and, in any event, was undoubtedly correct since the Deputy Registrar was not a necessary party to the appeal.

Result

[11]      The application to strike out this appeal (CA799/2009) is granted. 

Costs

[12]      The Council seeks costs on an indemnity basis in relation to both appeals.  We consider that indemnity costs together with disbursements are appropriate since we are satisfied there are no grounds which could have been responsibly advanced in opposition to the Council’s applications.

[13]      The respondent must file and serve a memorandum as to the quantum of costs within seven days of the date of delivery of this decision.  The appellant must file and serve any memorandum in response within seven days thereafter.

Solicitors:

Brookfields, Auckland for Respondents