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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NZCA 539
Decision Date: 22 November 2010

CaseChat Overview and Summary

In Riddiford v Attorney-General, the Court of Appeal of New Zealand considered an application for review of a decision by the Acting Registrar not to waive the requirement for security for costs. The applicants, Daniel Thomas Spencer Riddiford and Yvonne Ada Riddiford, sought to appeal the High Court’s decision regarding the amount of compensation payable to them for land taken for reserve purposes under the Local Government Act 1974. The core issues before the Court of Appeal were whether the Tribunal had jurisdiction to award the costs in the sum it did and whether that sum was excessive.

The Court of Appeal examined the legal principles governing the waiver of security for costs. It noted that appellants in civil proceedings are generally required to pay security for costs, which can be waived or varied by the Registrar if certain circumstances warrant it. The Court held that exceptional circumstances must exist to justify a waiver, and impecuniosity alone is usually insufficient unless it is accompanied by other compelling reasons. The Court also considered the arguability of the appeal, the importance of the issues raised, and the public interest in having them determined.

The applicants argued that the requirement to pay security was contrary to due process and their right to "full compensation," and that the absence of an order for security in the leave judgment indicated it should not be required. They contended that their land interests were available should costs be payable. The Crown opposed the waiver, arguing there were no exceptional circumstances justifying it, the applicants were not impecunious, the issues in the appeal were technical, and the application was made substantially out of time.

The Court of Appeal concluded that the applicants were not impecunious, and the requirement to pay security did not affect their right to compensation. The Court also noted that the absence of an order for security in the leave judgment did not mean it should not be required. The Court found that the applicants had the means to pay security, and while the appeal was arguable, it would not be rendered nugatory if security was required. The Court further held that the delay in applying for a dispensation was relevant and called into question the significance of the appeal from the applicants' perspective. Accordingly, the Court declined the application for review of the Registrar’s decision, allowing the Registry to retain the amount tendered as security for costs.

Orders