Reid v Woodville Districts' Vision Incorporated Society HC Palmerston North CIV 2010-454-258

[2010] NZHC 965

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV 2010-454-000258

UNDER	the Defamation Act 1992, Local Government Act 2002, Goods and Services Tax Act 1985, NZ Bill of Rights Act 1990
IN THE MATTER OF	an appeal of the decision in the Napier District Court striking out an amended statement of claim
BETWEEN	JAMES ROBERT REID Appellant
AND	WOODVILLE DISTRICTS' VISION INCOPORATED SOCIETY First Respondent
AND	EVAN MATTHEW NATTRASS Second Respondent
AND	HEATHER HAMILTON HIRSCHBERG Third Respondent
AND	VICTORIA MARY JOHANSON Fourth Respondent
AND	CAROLE WILTON Fifth Respondent
Hearing:	AND 17 June 2010	ALLAN BROOM Sixth Respondent

Appearances: J R Reid appellant in person

J G M Turnbull for respondents

Judgment:      21 June 2010 at 4:00pm

JUDGMENT OF ASSOCIATE JUDGE ABBOTT

This judgment was delivered by me on 21 June 2010 at 4:00pm, pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar

James Robert Reid, 2 Vogel Street, Woodville appellant          Email: [email protected]

James Turnbull Barrister, PO Box 12033, Palmerston North 4444 for respondents

REID V WOODVILLE DISTRICTS' VISION INCORPORATED SOCIETY & ORS HC PMN CIV 2010-454-

000258  21 June 2010

[1]      This matter is before the court for a decision on the standing of this appeal.

Background

[2]      This proceeding is an appeal by Mr Reid against a decision of the District Court given on 26 February 2010 striking out the majority of his claims against the respondents.

[3]      The matter came before the court on 17 June 2010, supposedly for a case management conference.  It was listed amongst a number of matters that were being called in open court.   It was stood down and dealt with after the list (in effect, in court for chambers).

[4]      Formal notice of the case management conference was not given.  The parties were merely advised by email on 27 May 2010 that the matter was to be called at 10 am on 17 June 2010.  Mr Reid did not file a memorandum as required by r 7.5 of the High Court Rules.

[5]      The respondents filed a memorandum, but did not address the matters in Schedule 6 to the Rules.   Instead they questioned whether the appeal has been properly brought, and whether the matter should be before the court.  They said that the purported  appeal was deficient in two  respects:   first,  “no  real  grounds for appeal” had been provided (which I take to mean that Mr Reid had not complied with r 20.9(1)); and secondly, Mr Reid had not paid the filing fee nor obtained a waiver of that fee.

[6]      In their memorandum, the respondents stated that they were reluctant to take any formal steps until Mr Reid has stated the basis of his appeal properly, and it was established that the appeal was validly before the court.  In the hearing, their counsel went a step further and suggested that the appeal was a nullity and should be struck out, with an order for costs in favour of the respondents.

[7]      Mr Reid did not respond to the challenge to the content of his appeal but said that he was considering appealing the decision declining him waiver of fee.  In the

alternative he contended that if I was to find that the appeal was a nullity, there was then nothing before the court on which to make an order for costs.

[8]      I adjourned the matter so that I could consider the effect of Mr Reid’s failure to pay the filing fee.  I do not intend to address the respondents’ arguments on the content of the notice of appeal.  That is a matter for another day.

[9]      I am not prepared at this time to rule that the appeal is a nullity, both because I am not satisfied that Mr Reid has had appropriate notice, and because I am not convinced from the material on the court file that there is a sufficient factual or legal basis to do so:

a)  The appeal was accepted for filing with an application for waiver of fee;

b) The court file shows that the appeal was treated as being “on hold” until the application for waiver was determined;

c)  The Registrar’s decision to decline the application was notified to Mr Reid on 19 April 2010 in the following terms:

“I require payment of the $400 filing fee by 26 April 2010. (Reg 8(2)(a) HC Fees

Regulations 2001).

In the meantime, I accept the appeal for filing in anticipation of the filing fee being paid by the due date.”

d) Mr Reid sought review of that decision.  On 26 May 2010 Simon France J gave  a  decision  upholding  the  Registrar’s  decision.    The  effect  of  that decision is that the fee is payable from that date (the Registrar’s time limit having expired).  However, it is perhaps arguable that he should be given a reasonable time following that decision: reg 7 of the High Court Fees Regulations 2001 allows postponement of payment pending a review and reg

8(2)(a) refers to the payment having to be made without delay.

e)  There is authority (in similar cases also involving Mr Reid) which suggests that the appeal remains “on foot” even where payment is not made, but it

may be struck out, on application by an affected party, if payment is not made: Reid v The Governor-General & Ors HC Wellington CIV 2009-485-

1633 and 1634, 4 May 2010.

f)   It is clear, however, from reg 8(3) and from these authorities, that Mr Reid cannot proceed with his appeal until he pays the fee, and if he does not do so within a reasonable time the appeal may be struck out as an abuse of process.

[10]     In the circumstances, the proper course is for the Registrar to set a date for payment of the fee (in light of the time he has already had, a short period only should be given for this) and a date for a further case management conference to follow.  If Mr Reid does not pay the fee by the due date, the respondents then have a clear basis for applying to strike out the appeal.  It will not be difficult to find support for their position in the history of this matter.

[11]     Mr Reid said he was contemplating an appeal against the decision of Simon France J.  He will require leave to do so.  Perhaps even more significantly, however, any application for leave will not prevent the respondents pursuing a strike out.  He will need to obtain a stay if he chooses to take that approach.  On the facts available to me, any applications for leave and for stay will present a formidable hurdle for Mr Reid.

[12]     The file is to be referred to the Registrar to set a date by which the filing fee is to be paid, and for allocation of a case management conference.

[13]     I reserve costs on the hearing.

Associate Judge Abbott