Taylor v Chief Executive of the Department of Corrections

[2014] NZCA 282

IN THE COURT OF APPEAL OF NEW ZEALAND

CA816/2013
[2014] NZCA 282

BETWEEN	ARTHUR WILLIAM TAYLOR Appellant
AND	THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Counsel:

R K Francois for Appellant
A M Powell for Respondent

Judgment:

(On the papers)

30 June 2014 at 10 am

JUDGMENT OF ELLEN FRANCE J
(Review of Registrar’s decision)

The time for making an application for dispensation of security for costs is extended to 28 March 2014.  The application for dispensation is referred to the Registrar for consideration.

____________________________________________________________________

REASONS

1. Mr Taylor, a serving prisoner, brought a judicial review proceeding in the High Court challenging a decision made by the delegate of the Chief Executive of the Department of Corrections declining a request from Television New Zealand (TVNZ) to interview Mr Taylor on a “face-to-face” basis.  TVNZ wanted to interview Mr Taylor about proceedings in which he had successfully challenged the legality of steps taken to create a “smoke-free” environment in prisons.

2. Heath J dismissed the application for judicial review.[1]  Mr Taylor has appealed against the decision of Heath J.

   [1]Taylor v Chief Executive of the Department of Corrections [2013] NZHC 2953.

3. In this Court, the Registrar set security for costs in the sum of $5,880.00.  Mr Taylor’s application for dispensation of security was received on 28 March 2014.  The application was dismissed by the Registrar on the basis that it was out of time.[2]  Mr Taylor sought a review of that decision.

   [2]Court of Appeal (Civil) Rules 2005, r 35(7).

4. Although the Registrar does not have power to extend time for the filing of an application for dispensation,[3] the respondent accepts that the Court may do so under r 5(2) of the Court of Appeal (Civil) Rules 2005.

   [3]Orlov v National Standards Committee No 1 [2014] NZCA 182 at [5] and see at [7]; Ridge v Parore [2014] NZCA 277 at [9].

5. In the present case, the delay is lengthy (the application was two months out of time) but is explained.  Essentially, Mr Taylor did not believe it was necessary to apply for a dispensation because of the way r 35(6)(c), concerning dispensation, has been applied to him on other occasions by the Crown.  The application was only made in this case because of an indication from counsel for the respondent in an email dated 19 March 2014 that the respondent would oppose an application for dispensation.  That explanation is not challenged.

6. It is also relevant to the r 5(2) inquiry that the respondent accepts there is no prejudice to the respondent in delay.  Further, the respondent also accepts that the appeal cannot be described as hopeless.  Finally, Mr Taylor has provided material in support of the application for dispensation that warrants consideration on its merits.

7. In these circumstances I am satisfied that the appropriate course is for me to extend the time for filing of the application for dispensation and for the application to be referred to the Registrar for consideration.[4]  I order accordingly.

Postscript

[4]It is accordingly unnecessary to consider Mr Taylor’s submission that r 6(2) dealing with the effect of non-compliance with the Rules can assist in this case.

1. The question of the Court’s power to make an order under s 61A(1) of the Judicature Act 1908 relating to security for costs where no decision has been made by the Registrar has been left open.[5]  Whatever the position is as to the existence of the power, I am satisfied this is not an appropriate case for me to consider the question of security in the absence of a decision by the Registrar. 

Result

[5]Siemer v Stiassny [2013] NZSC 110 at [10], n 4; Siemer v Stiassny [2013] NZSC 115 at [9], n 4; and Siemer v Official Assignee [2014] NZSC 42 at [5].

1. The time for making an application for dispensation of security for costs is extended to 28 March 2014, that being the date on which the application was filed.  The application for dispensation is referred to the Registrar for consideration.

Solicitors:
Warren Simpson, Papakura for Appellant
Crown Law Office, Wellington for Respondent