Reihana v Rakiura Titi Committee

[2014] NZHC 3166

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2014-425-000102 [2014] NZHC 3166

BETWEEN

TONI COLIN REIHANA

Applicant

AND

RAKIURA TITI COMMITTEE First Respondent

AND

MARAMA COOPER Second Respondent

AND

STEWART BULL Third Respondent

Hearing:	10 December 2014 (By way of conference call)
Appearances:	Applicant in person K M Kereru for First and Third Respondents
Judgment:	11 December 2014

JUDGMENT OF DUNNINGHAM J SECURITY FOR COSTS DECISION

[1]      Mr Reihana has initiated an application for judicial review alleging that the

Rakiura Titi Committee, and two named officers of that Committee:

(a)      have not complied with their obligations under the Titi (Muttonbird) Island Regulations 1978 (the Regulations) to activate reg 9(1) and refer his dispute to an independent decision maker; and

(b)      have  “abused”  their  statutory  power  of  decision  by  deliberately

creating  a  “dispute  scenario”  to  activate  reg  6(2)  and  refuse  the applicant’s application for referral of his dispute under reg 9.

REIHANA v RAKIURA TITI COMMITTEE [2014] NZHC 3166 [11 December 2014]

[2]      The first and third respondent,1  have applied for security for costs in the amount of $6,5002 on the basis that the applicant:

(a)       lives in Australia; and

(b)he has a “litigation history” and it is in the interests of justice that an order is made to demonstrate the applicant’s “commitment to the proceedings”.

[3]      Applications for security for costs are governed by r 5.45. That rules says:

5.45     Order for security of costs

(1)      Subclause (2) applies if a Judge is satisfied, on the application of a defendant,—

(a)      that a plaintiff—

(i)       is resident out of New Zealand; or

(ii)      is a corporation incorporated outside New Zealand;

or

(iii)      is a subsidiary (within the meaning of section 5 of the Companies Act 1993) of a corporation incorporated outside New Zealand; or

(b)       that there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff's proceeding.

(2)      A Judge may, if the Judge thinks it is just in all the circumstances, order the giving of security for costs.

(3)      An order under subclause (2)—

(a)       requires the plaintiff or plaintiffs against whom the order is made to give security for costs as directed for a sum that the Judge considers sufficient—

(i)       by paying that sum into court; or

(ii)      by giving,  to the satisfaction of the Judge or the

Registrar, security for that sum; and

1      Who are the only parties who are actively involved in the proceeding, the second respondent being gravely ill.

2      Calculated pursuant to r 14.3 of the High Court Rules.

(b)      may stay the proceeding until the sum is paid or the security given.

(4)       A Judge may treat a plaintiff as being resident out of New Zealand even though the plaintiff is temporarily resident in New Zealand.

(5)       A  Judge  may  make  an  order  under  subclause  (2)  even  if  the defendant has taken a step in the proceeding before applying for security.

(6)       References in this rule to a plaintiff and defendant are references to the person (however described on the record) who, because  of a document filed in the proceeding (for example, a counterclaim), is in the position of plaintiff or defendant.

[4]      An application under r 5.45 requires me to consider the following:

(a)       whether the applicant has satisfied the Court of the threshold under r 5.45(1);

(b)      how the discretion under r 5.45(2) should be exercised; (c)     what amount security for costs should be fixed at;

(d)      whether a stay should be ordered.

[5]      Much of the content of the supporting memoranda and affidavit evidence was directed at the merits of the claim.  Mr Reihana’s position is that he has a case which “cannot be defended” by the respondents.  The respondents, on the other hand, say that the pleadings are factually erroneous, in some areas are not amenable to judicial review  and  are  “prolix  and  misdirected”.    They  also  say  that,  in  May  2013, Mr Reihana advised a committee member that he no longer wished to pursue his request under reg 9 for an independent arbitrator.  He then agreed to attend mediation but,  first,  asked  for  it  to  be  rescheduled,  then  advised  he  had  no  intention  of attending it.  The respondents say that they are agreeable to referring the dispute to an independent arbitrator pursuant to reg 9, but Mr Reihana is fixed on pursuing these proceedings.

[6]      As I explained to the parties in the telephone conference, this is not the opportunity to determine the merits of the claim.  For the purposes of this application

I  have  assumed  that  Mr  Reihana’s  claims  have  merit,  but,  I  do  not  accept Mr Reihana’s assertion that his claim cannot be defended.  However, I reiterate that I do not need to decide the merits of the application at this stage.

Is the threshold test under r 5.45(1) established?

[7]      Rule 5.45(1) sets out an alternate test.   I must be satisfied either that the applicant is resident out of New Zealand, or that there is reason to believe that the applicant will be unable to pay the costs of the  respondents if the applicant is unsuccessful in his proceeding.

[8]      While Mr Reihana has  provided a New Zealand address  for service,  his correspondence annexed to his affidavits gives an address on the Gold Coast as his residential address and he has acknowledged that, while he travels to New Zealand from time to time, his primary place of residence is in Australia. Thus the first test in r 5.45(1) is satisfied.

[9]      While the respondents have not provided evidence to support the alternate test, being that he would be unable to pay the costs of the respondents if he is unsuccessful, I note his occupation is given in affidavit evidence as an invalid’s beneficiary, and he has applied for a fee waiver to this Court.  While I do not rely on this as demonstrating his inability to pay the costs of the respondents, the fact that he is resident out of New Zealand, and that I have no evidence on which I can be satisfied that he would be able to meet a costs award if one was to follow, is relevant to the next issue, which is the exercise of my discretion.

How should the Court exercise its discretion under r 5.45(2)?

[10]     It is necessary to balance the interests of the respondents who do not want to be drawn into what they see as unjustified litigation, against Mr Reihana’s interest in having access to the Court to explore what he sees as breaches of the statutory decision making powers the Committee and its officers have under the Regulations.

[11]     In this regard I do hold concerns about the litigious approach being adopted by Mr Reihana.   For example, he initiated an ex parte application for an interim

injunction, which was declined on the papers because it disclosed no proper basis on which  such  orders  could  be  made.     Similarly,  Mr  Reihana  has  refused  the respondents’ recent invitation to have the matter referred under reg 9 to an independent decision maker.  On the face of it, this appears illogical given it is the failure of the Committee to do that at an earlier stage which is at the heart of his complaint.

[12]     I also note that Mr Reihana has attempted to initiate interlocutory processes, such as seeking answers to interrogatories, when they are not necessary or relevant to progressing his application.   While I have assumed there is a proper basis for Mr Reihana’s claim, and I appreciate he is not legally advised, I am concerned that he is not proceeding with his claim in a way that efficiently progresses the issue in dispute. That is a factor which is relevant to the exercise of my discretion.

[13]     Taking  into  account  that  the  first  test  in  r  5.45(1)  is  satisfied,  and  my concerns that Mr Reihana is not pursuing the litigation in a way that ensures costs are not incurred unnecessarily by the respondents, I find that there is a proper basis for an order for security for costs to be made and I propose to make such an order.

What amount should security for costs be fixed at?

[14]     The  respondents  set  out  a  calculation  of  costs  based  on  r  14.3  of  the

High Court Rules. That calculation totals $6,500.

[15]     When Courts fix security for costs, they do not usually fix security for the full amount of a likely award of costs, but usually allow some element of discount.

[16]     In the present case I propose to allow a discount to recognise Mr Reihana’s right to avail himself of the processes of the Court.  In my judgment the amount of security that should be paid is $2,500.

[17]     I direct that Mr Reihana is to provide security for costs in the sum of $2,500 by  30  January  2015.    If  he  does  not  pay  the  sum  of  $2,500  into  Court  by

30 January 2015, this proceeding will be stayed.   For the avoidance of doubt, that

includes staying the requirements to comply with the timetabling directions set out in the accompanying minute.

Solicitors:

KMK Law, Invercargill