Riddiford v Attorney-General

[2010] NZCA 539

IN THE COURT OF APPEAL OF NEW ZEALAND

CA48/2010
[2010] NZCA 539

BETWEENDANIEL THOMAS SPENCER RIDDIFORD AND

YVONNE ADA RIDDIFORD
Applicants

ANDTHE ATTORNEY-GENERAL

Respondent

Counsel:Mr Riddiford for the Applicants in person

M T Parker for Respondent

Judgment:22 November 2010 at 10.30 am 

JUDGMENT OF ARNOLD J

The application for review of the Acting Registrar’s decision declining to waive security for costs is declined.

REASONS

Background

[1]         The applicants own, as trustees, a substantial property on the Wairarapa coast.  Some 19 hectares of the property (comprising a 20 metre wide coastal strip approximately 9.5 kilometres long) was taken for reserve purposes.  There was a dispute about the amount of compensation payable under s 290 of the Local Government Act 1974.  The Crown offered to settle for $148,000 without prejudice except as to costs.  The applicants declined the Crown’s offer, contending that the land was worth over $13 million. The Land Valuation Tribunal rejected the applicants’ valuation and fixed compensation at $156,200.  The Tribunal considered that the applicant could have realistically achieved a settlement of that sum and accordingly awarded costs of $100,000 to the Crown.[1]  $70,000 of that sum was for disbursements, in particular the costs of Crown expert evidence upon which the Tribunal’s decision was based.

[1]Riddiford v Attorney-General Land Valuation Tribunal Wellington 1/00, 18 May 2007.

[2]        The applicants appealed the Tribunal’s findings and costs order to the High Court.  The Court rejected five of the six grounds of appeal regarding the calculation of compensation.[2]  The Court directed the Tribunal to reconsider the compensation payable on one portion of the acquired land that may have been overlooked in its calculations.  The appeal against the costs order was dismissed on the ground that there was no error in the Tribunal’s exercise of discretion.  Both parties then sought costs in relation to the appeal.  The High Court held that as the Crown had essentially succeeded it was entitled to costs.[3] 

[2]Riddiford v Attorney-General HC Wellington CIV-2006-485-833, 23 June 2008.

[3]Riddiford v Attorney-General HC Wellington CIV-2006-485-833, 27 August 2008.

[3]        The applicants applied for leave to appeal to this Court against the High Court’s decision and raised six questions for determination.  The Court granted leave in relation to two of them: whether the Tribunal had jurisdiction to award costs in the sum it did and whether that sum was excessive.[4] 

[4]Riddiford v Attorney-General [2009] NZCA 603.

[4]        Having been granted leave, the applicants filed the present appeal on 2 February 2010.  They applied for a dispensation from the requirement to pay security on 30 July 2010, which was well outside the 20 working days time limit[5] and was on the last working day before the appeal was deemed abandoned.[6]  Their application was made on the basis that the requirement to pay security was contrary to the right of due process as contained in Magna Carta and undermined their right to “full compensation” for the land acquisition.  The filing fee of $900 was waived but the Acting Registrar fixed security at $4,740.  The Acting Registrar noted that the applicant did not appear to be impecunious and the application did not disclose any exceptional circumstance warranting a dispensation. 

Principles

[5]Court of Appeal (Civil) Rules 2005, r 35(7).

[6]Rule 43.

[5]        In the normal course, appellants in civil proceedings in this Court are required to pay security for costs.[7]  The Registrar may vary or dispense with security “if satisfied that the circumstances warrant it”.[8]  On application, a Judge may review a decision of the Registrar not to waive security.[9] 

[7]Rule 35(2).

[8]Rule 35(6).

[9]Rule 7(2). 

[6]        The provision of security protects respondents in terms of costs should an appeal be unsuccessful.  Security will be waived if it is in the interests of justice to do so.  There must be some exceptional circumstance to justify waiver.[10]  Impecuniosity alone is not usually sufficient to justify a waiver, but may be a reason to reduce the amount of security required.[11]  The appellant must honestly intend to pursue the appeal and it must be arguable.  The importance of the issues raised in the appeal will be significant, as will the question whether there is any public interest in having them determined.[12] 

Submissions

[10]Fava v Zaghloul [2007] NZCA 498 at [9].

[11]Ibid at [9]; Easton v Broadcasting Commission [2009] NZCA 252, (2009) 19 PRNZ 675 at [3].

[12]Creser v Official Assignee CA196/05, 12 June 2006 at [29].

[7]        Mr Riddiford on behalf of the applicants argues that paying security is contrary to due process as guaranteed in the Magna Carta and the applicants right to “full compensation”.  He points to the absence of an order for security in this Court’s leave judgment as indicating that security should not be required.  He argues that the applicants’ land interests are available should costs be payable as a result of the appeal.   He says important issues of public interest are raised in the appeal, in particular whether “full” or “fair” compensation is required.  He refutes the Crown’s submissions that delay is relevant as a reason to refuse to waive security, that there has been a delay, and that the Crown has been prejudiced from any alleged delay.

[8]        The Crown opposes a waiver of security, on the ground that there are no exceptional circumstances justifying waiver.  In particular, the applicants are not impecunious, the issues in the appeal are of a technical nature and the application was made substantially out of time.

Discussion

[9]        Clearly Mr Riddiford is not impecunious.  He and his family have interests in a number of valuable properties and he has delivered a cheque for security to the Court on a “without prejudice” basis.   Accordingly, there is no risk that the appeal will be rendered nugatory by the requirement to pay security.  The requirement to pay security does not affect the applicants’ right to compensation, and they will be entitled after the appeal either to have the security returned or to apply it to meet an obligation to pay costs.

[10]       Nor is there anything in the point that this Court did not, in its leave decision, order the payment of security.  This Court may grant leave to appeal subject to the condition that security is paid,[13] in which case the general procedure for security does not apply.[14]  But the Court is not required to address security when granting leave.  Where it does not do so, the normal procedures apply.

[13]Rule 27(2)(a).

[14]Rules 27(2)(a) and 35(1)(b).

[11]       The fact that a litigant has a high net worth, and so can be expected to meet any costs order against him or her, does not justify a departure from the requirement to pay security in this Court.  Payment of security ensures that funds are available when needed and that the difficulties that a successful respondent could face if required to realise an appellant’s assets are minimised.

[12]       The questions on appeal are arguable, as indicated by this Court’s grant of leave.   However, there is no guarantee of success and the respondents are entitled to some protection in relation to costs in the event the appeal is unsuccessful.  In addition, the degree of public interest in the appeal is not as great as Mr Riddiford contends.  The appeal will not address what he identifies as the key issue, namely the level of compensation payable by the Crown, as it is limited to the questions identified by this Court in its leave judgment, and is of a rather technical nature.

[13]       The delay in applying for a dispensation from the requirement to pay security was lengthy. That is a relevant factor.  There may be little or no material prejudice to the Crown from the delay, but it does call into question the significance of the appeal from the applicants’ perspective.

[14]       In the result, I agree with the Acting Registrar that a dispensation from the requirement to pay security is not warranted in this case. The applicants have the means to pay security.  While the appeal is arguable, it will not be rendered nugatory if security is required.  In short, there is nothing exceptional which would justify a departure from the usual rule that an appellant must provide security for costs.

Decision

[15]       The application for review of the Registrar’s decision is declined.  The Registry may accordingly retain the amount tendered as for security for costs.

Solicitors:

Crown Law Office, Wellington for Respondent