Sixtus v Ardern - [2022] NZCA 372

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA306/2022
[2022] NZCA 372

BETWEEN	CATHERINE ANNE SIXTUS Applicant
AND	JACINDA ARDERN First Respondent KRIS FAAFOI Second Respondent ANDREW LITTLE Third Respondent ASHLEY BLOOMFIELD Fourth Respondent

Counsel:	Applicant in Person P J Gunn and R M McMenamin for Respondents
Judgment: (On the papers)	12 August 2022 at 10.30 am

JUDGMENT OF BROWN J
(Review of Deputy Registrar’s decision)

The application to review the Deputy Registrar’s decision declining a fee waiver is declined.

____________________________________________________________________

REASONS

Introduction

On 21 June 2022 Ms Sixtus filed a notice of appeal against a judgment of the High Court striking out her proceeding against the respondents as being an abuse of process.[1] On 28 June 2022 the Deputy Registrar declined Ms Sixtus’ application under reg 5(1) of the Court of Appeal Fees Regulations 2001 (the Fees Regulations) for a waiver of the $1,100.00 filing fee on the appeal. Ms Sixtus now seeks a review by a judge of the Deputy Registrar’s decision.

The power to waive fees

[1]Sixtus v Ardern [2022] NZHC 1161.

The power of the Registrar to waive a fee payable by an applicant is specified in reg 5(2) of the Fees Regulations, namely:
(a)on the basis of one of the criteria specified in subclause (3), that the applicant is unable to pay the fee; or
(b) that the proceeding,—
(i)on the basis of one of the criteria specified in subclause (4), concerns a matter of genuine public interest; and
(ii)is unlikely to be commenced or continued unless the fee is waived.
Subclause (4) provides that a proceeding concerns a matter of genuine public interest if it is:
(a)a proceeding that has been or is intended to be commenced to determine a question of law that is of significant interest to the public or to a substantial section of the public; or
(b)a proceeding that—
(i)raises issues of significant interest to the public or to a substantial section of the public; and
(ii)is an appeal against a judgment, decree, or order given or made in a proceeding commenced by an organisation that, by its governing enactment, constitution, or rules, is expressly or by necessary implication required to promote matters in the public interest.

Ms Sixtus’ application for a fee waiver

In her application for a fee waiver filed on 27 June 2022, Ms Sixtus ticked the box at step 3 of the prescribed form which states:
This fee relates to a proceeding that concerns a matter of genuine public interest, and it will not move forward unless this fee is paid.
At step 5, where an applicant is to address the asserted matter of genuine public interest, Ms Sixtus stated that the courts have denied access to justice to the public using unintelligibility as an excuse. Reference was made to several legislative provisions, including provisions of the Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990.
Then in response to the question at step…

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 Sixtus v Ardern

Details

AGLC: Sixtus v Ardern [2022] NZCA 372
Case: [2022] NZCA 372
Decision Date: 12 August 2022 at 10.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application from Catherine Anne Sixtus for a review of a decision made by the Deputy Registrar, declining a fee waiver for her appeal against a judgment of the High Court. The High Court had struck out Ms Sixtus' proceeding against the respondents, Jacinda Ardern, Kris Faafoi, Andrew Little, and Ashley Bloomfield, for being an abuse of process. Ms Sixtus sought a waiver of the $1,100.00 filing fee for her appeal, arguing that the proceeding concerns a matter of genuine public interest. The Deputy Registrar declined the application, finding that the proceeding was unlikely to be commenced or continued unless the fee was waived, as Ms Sixtus confirmed she would continue with the proceeding regardless of the fee waiver outcome.

The primary legal issue the Court had to decide was whether the Deputy Registrar's decision to decline the fee waiver application was correct. The Court examined the relevant regulations, specifically regulation 5(2) of the Court of Appeal Fees Regulations 2001, which sets out the conditions for a fee waiver. The Court assessed whether Ms Sixtus' appeal met the criteria for a waiver on the basis of genuine public interest and whether the proceeding was unlikely to be commenced or continued without a fee waiver.

The Court found that the Deputy Registrar did not err in declining the fee waiver application. The Court noted that Ms Sixtus had ticked the box in the application stating she would continue with the proceeding even if the fee was not waived, thus not meeting the requirement in regulation 5(2)(b)(ii). The Court also determined that the appeal did not concern a matter of genuine public interest as required by regulation 5(2)(b)(i). The Court held that the appeal was of a decision to strike out a proceeding on the basis that it was an abuse of process, and the issue in this appeal would turn on the particular facts regarding how the statement of claim was pleaded, rather than a question of law of significant interest to the public. Consequently, the Deputy Registrar's decision to decline the fee waiver application was affirmed.

The Court declined the application for review of the Deputy Registrar's decision, upholding the decision that the fee waiver would not be granted.

Orders