Stockman v New Zealand Association of Counsellors Incorporated

[2013] NZCA 647

IN THE COURT OF APPEAL OF NEW ZEALAND

CA665/2013
[2013] NZCA 647

BETWEEN	PETER GERARD STOCKMAN Appellant
AND	NEW ZEALAND ASSOCIATION OF COUNSELLORS INCORPORATED Respondent

Counsel:

Appellant in person
E J Horner for Respondent

Judgment:

(On the papers)

12 December 2013 at 2.30 pm

JUDGMENT OF FRENCH J
(Review of Registrar’s Decision
Re Dispensing with Payment of Security for Costs)

AThe application for review of the Registrar’s decision refusing to dispense with the payment of security for costs is dismissed.

BThe appellant must pay security for costs in the sum of $5,880 in relation to the appeal within 20 working days of the date of this judgment.

____________________________________________________________________

REASONS

Introduction

1. Mr Stockman successfully applied for judicial review in the High Court.[1]  The Judge (Peters J), however, declined to award him costs because he was self‑represented.  Mr Stockman has filed an appeal against the costs decision.  He acknowledges that in denying him costs, Peters J was applying a well-established rule, but says he wants this Court to reconsider that rule.

   [1]Stockman v New Zealand Association of Counsellors Inc [2013] NZHC 2267, [2013] NZAR 1233.

2. On 30 September 2013, security for costs on the appeal was set at $5,880.

3. Mr Stockman then applied for security to be dispensed with under r 35(6)(c) of the Court of Appeal (Civil) Rules 2005.  The Registrar held that there was nothing in the appeal of public importance or significance and that the circumstances of the appeal could not be considered exceptional.  She accordingly decided that it was not an appropriate case for dispensation and advised Mr Stockman accordingly in a letter dated 14 November 2013.  The Registrar stated that security for costs remained set at $5,880.

4. Dissatisfied with that outcome, Mr Stockman now seeks a review of the Registrar’s decision.  The respondent (which neither consented to nor opposed the original application for dispensation) actively opposes the review application.

Grounds for review

1. Mr Stockman contends the Registrar was wrong to find the appeal is not exceptional and lacks public importance.  He submits the exact opposite is in fact the case.  The purpose of the appeal is to challenge a rule that, in his submission, unjustly discriminates against the poor and the underprivileged.  He says further that the appeal is unprecedented because he is bringing it out of a sense of social justice and not for his own personal benefit.  If successful, he does not intend to seek costs from the respondent.  The respondent does not therefore need to appear and incur any costs for which security is required.  Mr Stockman acknowledges that the absence of the respondent may necessitate the need for an amicus but says he is not impecunious and would gladly provide security for any “exceptional” costs that may be incurred by the Court.

Discussion

1. It is not the function of this Court to adjudicate on matters that are not in dispute between the parties.  Accordingly, if as his submissions suggest Mr Stockman does not wish to obtain a judgment against the respondent, then the appeal should be struck out as being moot.

2. If Mr Stockman does wish to obtain a judgment against the respondent, then the respondent does need to appear and will incur costs.  In my view, there is no reason justifying departure from the normal rule that appellants must pay security for costs.  Mr Stockman is not impecunious and the merits of his appeal are highly debatable.

3. I accordingly uphold the Registrar’s decision.

Result

1. The application for review of the Registrar’s decision refusing to dispense with the payment of security for costs is dismissed.

2. The appellant must pay security for costs in the sum of $5,880 in relation to the appeal within 20 working days of the date of this judgment.

Solicitors:
Morrison Kent, Wellington for Respondent