Seager-Buckle v Hurrell - [2013] NZCA 21

IN THE COURT OF APPEAL OF NEW ZEALAND

CA673/2012
[2013] NZCA 21

BETWEEN SUSAN MARGARET ANGELINA SEAGER-BUCKLE
Appellant

AND ERIC CLYDE HURRELL AND VIVIENNE MARY HURRELL
First Respondents

AND CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT
Second Respondent

AND PAUL MAURICE BUCKLE
Third Respondent

Counsel: Appellant in person
First Respondents in person
N Gray for Second Respondent
Third Respondent in person

Judgment: 22 February 2013 at 3.00 pm

(On the papers)

JUDGMENT OF STEVENS J – REVIEW OF REGISTRAR’S DECISION RE WAIVER OF SECURITY FOR COSTS

AThe application for review of the Registrar’s decision refusing to waive the payment of security for costs is dismissed.
BThe appellant must pay security for costs in the sum of $5,880.00 in relation to the appeal within 20 workings days of the date of this judgment.

____________________________________________________________________

REASONS

Introduction

The appellant has two appeals before the High Court both of which relate to her son, Cajetan Isaac Thomas Seager-Buckle (Cajetan). The two appeals are:
(a)Appeal 840 relating to a Family Court decision dated 5 October 2011 whereby the Chief Executive of the Ministry of Social Development was discharged as additional guardian of Cajetan; and
(b)Appeal 862 in relation to a decision of the Family Court dated 25 November 2011 whereby an Adoption Order in relation to Cajetan was made in favour of his foster carers, Eric and Vivienne Hurrell.
The appellant is self-represented in both appeals. The High Court has appointed an amicus curiae in both matters with a brief to assist the appellant to prepare her papers for Court and to make any additional submissions as may assist the Court properly to understand the appellant’s perspective on the merits of the appeals.
In the course of the two High Court appeals the appellant filed an interlocutory application seeking to adduce further evidence on appeal. That application was heard by Joseph Williams J who delivered a judgment dismissing the interlocutory applications in respect of both appeals (the High Court judgment).[1]
[1] Seager-Buckle v Chief Executive of the Ministry of Social Development [2012] NZHC 1451.
The appellant has filed a notice of appeal against the High Court judgment. She sought to have security for costs dispensed with under r 35(6)(c) of the Court of Appeal (Civil) Rules 2005. The Registrar determined that it was not an appropriate case for security for costs to be waived. By letter dated 12 February 2013 the Registrar advised the appellant of her decision and confirmed that security remained set at $5,880.00.
The appellant has sought a review of the Registrar’s decision.

Registrar’s approach

In reaching her decision the Registrar referred to the fact that the appellant’s application was based on the fact that the appellant had a limited income and limited funds. Further, the appellant believed that the case involved a matter of public interest.
After referring to the relevant authorities the Registrar concluded that on the material supplied the appeal did not raise a question of law that was of significant interest to the public or…

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.

Continue reading Seager-Buckle v Hurrell

Details

AGLC: Seager-Buckle v Hurrell [2013] NZCA 21
Case: [2013] NZCA 21
Decision Date: 22 February 2013

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Susan Margaret Angelina Seager-Buckle appealed against the Registrar's decision to require her to pay security for costs, amounting to $5,880.00, in relation to two appeals concerning her son, Cajetan Isaac Thomas Seager-Buckle. The appeals related to a Family Court decision discharging the Chief Executive of the Ministry of Social Development as additional guardian of Cajetan and an Adoption Order in favour of his foster carers, Eric and Vivienne Hurrell. The High Court had dismissed the appellant's interlocutory application to adduce further evidence on appeal, and the appellant sought a review of the Registrar's decision to refuse to waive the payment of security for costs.

The court had to determine whether the Registrar's decision to require the appellant to pay security for costs was correct and if there were any exceptional circumstances justifying the waiver of security for costs. The court noted that the appellant's application was based on her limited income and funds and the alleged public interest of the case. However, the court concluded that the appeal did not raise a question of law of significant interest to the public or a substantial section of the public. Instead, it related to a set of facts concerning the appellant. The court emphasised that security for costs was necessary to protect the respondents in terms of any costs that might be awarded should the appeal be unsuccessful.

After considering the applicable principles, the court found that the Registrar was right to refuse to dispense with the requirement to pay security for costs. The interlocutory appeal raised no particular matter of public interest, and the only factor justifying anything other than a normal amount of security was the appellant's financial position, which was weak. The court also found that the merits of the appeal did not warrant exceptional treatment, and the second respondent should not face the threat of a hopeless appeal on an interlocutory matter without provision for security.

The application for review of the Registrar's decision was dismissed, and the appellant was required to pay security for costs in the sum of $5,880.00 within 20 working days of the date of this judgment. There was no order for costs on this application.

Orders