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

1. 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.

1. 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.

2. 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

1. 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.

2. 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.

3. Then in response to the question at step 5 asking whether the applicant would move forward with the proceeding if the application for a fee waiver were refused, Ms Sixtus ticked the box which confirmed that she would continue with the proceeding in any event. 

The Deputy Registrar’s decision

1. The Deputy Registrar commenced by observing that the requirement in reg 5(2)(b)(ii) was not met, since Ms Sixtus had marked the box in the application stating that she would continue with the proceeding even if the fee was not waived.  Consequently the Deputy Registrar could not be satisfied that the appeal was unlikely to be commenced or continued unless the fee was waived.

2. However the Deputy Registrar went on to consider whether the first requirement in reg 5(2)(b)(i) was met.  She found that neither of the criteria in reg 5(4)(a) or 5(4)(b) were satisfied and concluded:

   The appeal is of a decision of Cooke J striking out a proceeding on the basis that it was an abuse of process.  The issue in this appeal will be whether the proceeding should have been struck out on that basis.  This issue will turn on the particular facts regarding how the statement of claim was pleaded.  I do not consider it is a question of law that will be of significant interest to the public or to a substantial section of the public.

   (Footnote omitted.)

Ms Sixtus’ submissions on review

1. Ms Sixtus filed a detailed written submission, together with annexures, in support of her application for review. 

2. In those submissions she reiterated that her application for a fee waiver was based solely on the ground of genuine public interest.  With reference to the requirement in reg 5(2)(b)(ii), she stated:

   I agree that I will continue my Appeal even in the event of no fee waiver, but that it would cause me great burden in my endeavour to bring public awareness to their ancient laws of the 1688 WILL & MARY that are available to the people of New Zealand in this time of confusion and despotic rule.

3. In those circumstances the second requirement in reg 5(2)(b) is not satisfied.  Consequently the Deputy Registrar could not grant Ms Sixtus’ fee waiver application and did not err in declining it.

4. Ms Sixtus proceeded to address the Deputy Registrar’s consideration of the circumstances which qualify as a matter of genuine public interest.  She made the point that her proceeding in the High Court was an application for a declaration of right under s 3 of the Declaratory Judgments Act 1908 and suggested that such a proceeding was not within the list of matters for which a filing fee was prescribed in the schedule to the Fees Regulations.  However, whatever may be the form of Ms Sixtus’ proceeding in the High Court, her process in this Court is a notice of appeal which is included as item (d) in the schedule.

5. Ms Sixtus further submitted that the significant public interest requirement did not apply to an application for a declaration under s 3 of the Declaratory Judgments Act, which requires that only one person be interested in the validity and construction of a statute or regulation.  However, in my view the requirements of reg 5(4) apply to the claim Ms Sixtus seeks to make irrespective of the jurisdictional route which is invoked.

6. Finally, I note that Ms Sixtus refers to aspects of her heritage, annexing an ordinance of 16 July 1844 concerning the naturalisation of certain German settlers in the colony of New Zealand.  While Ms Sixtus may bring proceedings in the New Zealand courts like any other New Zealand citizen, she is not exempt from the application of the Fees Regulations.

Result

1. The application for review of the decision of the Deputy Registrar is declined.

Solicitors:
Crown Law Office, Wellington for Respondents