Taylor v Chief Executive of the Department of Corrections
[2019] NZHC 644
•29 March 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-001751
[2019] NZHC 644
BETWEEN ARTHUR WILLIAM TAYLOR
Appellant
AND
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 11 October 2018
Further submissions of the Appellant dated 29 October 2018 and memorandum of the Appellant dated 8 January 2019
Appearances:
The Appellant in Person, by telephone
V Casey QC and H Farquhar for the Respondent, by telephone
Judgment:
29 March 2019
JUDGMENT OF HINTON J
This judgment was delivered by me on 29 March 2019 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules
…………………………………………………………………… Registrar/Deputy Registrar
Counsel:
Victoria Casey, Queens Counsel, Wellington
Party:
A W Taylor
ARTHUR WILLIAM TAYLOR v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 644 [29 March 2019]
[1] The issue in this judgment is whether Mr Taylor, who was an inmate at Waikeria Prison, should be given a waiver of security for costs on an appeal.1 The appeal is described as an appeal under the Human Rights Act 1993.
[2] Mr Taylor says he should be granted a waiver because he is impecunious and/or the appeal involves an important human rights issue.
[3]The application for waiver is opposed.
[4]The appeal requires a two-day hearing. Standard security is $4,460.
[5] This is not the first time a Court has had to deliver a judgment on this issue. In Reekie v Attorney-General, the same issue was considered at length by the Supreme Court.2
Procedure
[6] At the appeal telephone case management conference on 12 September 2018, Mr Taylor sought a waiver of security on the primary basis of impecuniosity. By Minute dated 13 September 2018, I made directions to which I refer subsequently, including allocating a further telephone conference. I anticipated the issue would be resolved in the subsequent telephone conference, given the small amount at issue. However, the parties were unable to agree and subsequently filed extensive written submissions. I heard oral argument by telephone on 11 October 2018.
[7] After the hearing, Mr Taylor filed further written submissions dated 29 October 2018 and a memorandum dated 8 January 2019, which refers to recent grants of legal aid received by him in other proceedings. He argues these grants are proof of his impecuniosity.
1 I understand he has recently been paroled.
2 Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.
Jurisdiction
[8] As recorded above, in his original memorandum Mr Taylor simply sought a waiver of security. In the later written submissions dated 10 October and 29 October 2018, he also raised two jurisdictional points, which I consider first. I have received no submissions from the respondent on the second of these.
Does s 125 of the Human Rights Act override security for costs?
[9] Mr Taylor argues that there is no power to make an order for security for costs on an appeal under the Human Rights Act 1993, because High Court Rule 14.1(3) provides that the rules are subject to any statute and s 125 of the Human Rights Act 1993 therefore governs the costs of appeals. It provides:
125 Costs of appeal
The High Court shall have power to make such order as to the whole or any part of the costs of an appeal under section 123 as may seem just but every order for costs shall follow the outcome of the appeal unless the court otherwise orders.
[10] Mr Taylor says this language means that in human rights cases, costs can only “follow” the appeal judgment and there can be no order for security for costs ahead of the judgment.
[11] However, an order for security for costs is not an order for costs. It is rather a standard, scheduled amount to be held by the Registrar as security for any order for costs that might later be made.3 If no costs order is made, the security sum is paid back to the appellant.
[12] Section 125 of the Human Rights Act would therefore override the costs provisions in Part 14 of the High Court Rules, but does not displace the normal rule in terms of security for costs.
3 The amount paid is based on $1,115 per hearing half-day, considerably less than any likely later award of costs.
Application to dispense requires full panel hearing and decision
[13] In his 29 October 2018 post-hearing memorandum, Mr Taylor submits that this decision should be determined by a panel of three, constituted under s 126 of the Human Rights Act. This objection does come somewhat late, given if the matter had to be decided by a panel of three, those other members should have presumably been present for the telephone hearing. But, in any event, I do not consider it necessary to hear or decide this matter with a panel of three.
[14]Section 126 is in the following terms:
126 Additional members of High Court for purposes of Act
(1) For the purpose of the exercise by the High Court of its jurisdiction and powers—
(a)Under section 92T; or
(b) Under section 123 in respect of any appeal under section 123(2) or section 123(3) of this Act in which a question of fact is involved,—
there shall be 2 additional members of the Court who shall be persons appointed by a Judge of the Court for the purposes of the hearing or appeal from the panel maintained by the Minister under section 101 of this Act.
(2) Before entering upon the exercise of the duties of their office, the additional members shall take an oath before a Judge of the High Court that they will faithfully and impartially perform the duties of their office.
(3) The presence of a Judge of the High Court and of at least one additional member shall be necessary to constitute a sitting of the Court.
…
[15] This is an appeal to which s 126 applies. However, this Court has held in a number of decisions that where there is a preliminary matter that does not concern a question of fact, this Court may decide the preliminary matter without the appointment of further members.4
4 See, for example, Grupen v Director of Human Rights Proceedings (2011) 20 PRNZ 732 (HC); and Director of Civil Aviation v Shahroodi HC Auckland CIV-2011-404-2337, 4 October 2011.
[16] In Grupen v Director of Human Rights Proceedings, the appellant sought leave to extend the time for filing an appeal. An issue arose as to whether a full panel was required. Venning J held as follows:
The current application before the Court is a legal matter. It is whether the appeal has been brought within time. The facts are not in dispute. It cannot have been the intention of the Legislature that it would be necessary to constitute a panel with two laypeople to determine such a legal issue. In the event the Court rules the appeal has been brought within time then the panel will be constituted for the substantive hearing.
[17] I consider the same considerations noted by Venning J apply here. Whether to dispense with security is a purely preliminary matter, and it does not require addressing the questions of fact involved in the appeal in any significant way. This Court routinely determines whether security is required. It is not a matter that requires any particular expertise, or value judgement not routinely required in this Court, which is surely the rationale for the appointment of lay members. If this appeal proceeds further, and it is appropriate, lay members will be appointed.
[18] For these reasons, I find that appointing of a panel is not necessary to determine whether security should be waived.
Legal principles regarding security for costs
[19] Rule 20.13(2) of the High Court Rules states that in appeals to the High Court, the Judge “must fix security for costs at the case management conference relating to the appeal, unless the Judge considers that in the interests of justice no security is required”.
[20] Security for costs is presumptively payable for appeals. The rationale is that the respondent, having succeeded at first instance, should enjoy a degree of protection against the risk of non-payment of costs awarded should the appeal fail.5
[21] In Reekie, the Supreme Court referred to applications to dispense with security being usually made on two broad grounds – where costs are unlikely to be ordered
5 Houghton v Saunders [2015] NZCA 141 at [4], in the context of security for costs in the Court of Appeal. The same principle applies however, on appeals to the High Court.
against an appellant in any event, or where the appellant could not pay or would suffer severe hardship if payment is required.6
[22] The Court in Reekie also confirmed that security will only be dispensed with in exceptional circumstances, and that even impecuniosity of itself does not necessarily warrant an order dispensing with security, although that does not mean an impecunious appellant “has to show an exceptionally strong case, or anything of that sort”.7 Mr Reekie was a prisoner and clearly impecunious, but the Court still declined a waiver of security for costs on his two appeals because they mostly lacked merit, there would be no practical value in the determination of the appeals to the parties, and there was no public interest in the decision.
[23]It is for the appellant to show impecuniosity and/or exceptional circumstances.8
Has Mr Taylor established impecuniosity?
[24]I agree with the respondent that Mr Taylor has not established impecuniosity.
[25] While impecuniosity might normally be presumed in the case of a long-term prison inmate such as Mr Taylor, in this instance the respondent filed an affidavit of John Beith Atkinson, Principal Solicitor, Department of Corrections. Mr Atkinson annexes media reports which purportedly quote Mr Taylor’s fiancée as saying he had made purchases for her of an engagement ring and a car, and also quote other comments by Mr Taylor (through an intermediary) which suggest he had access to material amounts of money:
(a)An article published in the Woman’s Day magazine in April 2018 records an interview with Mr Taylor’s fiancée Tui, a woman who is described as having been a “young, bright, middle-class law student in British Columbia”. The article notes that “because Taylor worries about her on the open road, he bought her a car with a top-line safety rating”. The article also refers to Mr Taylor’s fiancée sporting “an
6 Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [19].
7 At [20] and [28].
8 At [27]–[30].
impressive diamond ring” and includes a photo of what appears to be such a ring with the notation: “The engagement ring was paid for by Taylor and picked up by Tui”.
(b)In a separate previous Woman’s Day article dated 19 March 2018, the author says they were not allowed to interview Mr Taylor behind bars, but he did make some comments “through an intermediary”. The article records the following:
[Mr Taylor is] tight-lipped about the diamond ring, other than to say he paid for it and [his partner] picked it up.
“I pay all my taxes and all my child support – the rest of my finances are between me and the IRD” he says “But I will say I made a lot of wise investments over the years and I didn't p*** my money up the wall or spend it on drinks and drugs and gambling. I don't plan on sleeping under a motorway bridge when I get out.”
[26] Given the burden is on Mr Taylor to prove impecuniosity, in the face of this material, I directed in my 13 September 2018 Minute, issued the day after the telephone conference, that he file an affidavit supporting his position that he could not afford to pay the standard security sum, with relevant supporting documents, and any further memorandum in support. I further directed that the respondent could then file evidence in reply, accompanied by a memorandum.
[27] There was some discussion in the telephone conference on 12 September 2018 as to what sort of material Mr Taylor might provide, Mr Taylor saying it was impossible for him to prove impecuniosity. I pointed out that he could, for example, file affidavit evidence of himself and his fiancée that the reported statements were wrong and his fiancée could explain how the engagement ring and car came to be purchased.
[28] On 19 September 2018, Mr Taylor filed an affidavit which said simply, “I cannot pay, having no disposable funds”. He referred to legal aid grants in 2016 and 2017, and a security for costs dispensation in October 2016. The affidavit otherwise contained submissions. In fact, the affidavit begins with a submission that the interests of justice in r 20.13(2) extend “beyond impecuniosity”.
[29] In his oral submissions on 11 October 2018, Mr Taylor kept saying that the Crown had not proven he had any capital available, especially as at that date. He said the alleged car and ring purchases, for example, are in the past and did not show he still had money available. I made it clear to Mr Taylor that in the absence of further information from him, I would find he had not established impecuniosity. I offered Mr Taylor the opportunity again to file some better evidence than he had, but it was clear he would not take up that opportunity.
[30] A bare statement of inability to pay is insufficient for me to conclude that Mr Taylor has established impecuniosity, especially in the face of the media articles.
[31] Mr Taylor also relies heavily on the granting of fee waivers (including in this proceeding) and grants of legal aid in other proceedings, both prior to the telephone hearing before me, and again in December 2018.
[32] As pointed out by the Supreme Court in Reekie, a waiver of fees granted by the Registrar may be indicative of impecuniosity, but is not determinative, as security for costs is an inter-parties issue.9 This really goes without saying. The Registrar acts on the basis of the information provided to them by Mr Taylor and no doubt does not have the information provided to me by the Crown. In any event, the administrative action of a Court Registrar is hardly binding on the Court’s decision on security for costs, which raises quite separate issues.
[33] Mr Taylor has not been granted, or applied for, legal aid in this proceeding. Grants of legal aid in other proceedings are not determinative. Also, the criteria to be applied in applications for legal aid are different to those relevant to this application, and the Legal Aid Committee may have other material available, or not available to it.
[34] I should add here that Mr Taylor says that if security for costs is ordered he will simply apply for legal aid and the order will then have to be quashed. That will be a matter to be addressed if and when he makes any application, and if and when he is successful. I would expect the Legal Aid Committee to be provided with this decision and also the affidavit of Mr Atkinson.
9 At [42].
Should a waiver be granted absent impecuniosity?
[35] The question comes back then to whether, in the absence of established impecuniosity, I should grant a waiver of security for costs.
[36] While his waiver argument did initially rely heavily on impecuniosity, Mr Taylor submits that in any event, in the interests of justice, no security is payable. He says that the term “interests of justice” invokes a very broad discretion, not limited to impecuniosity. He relies on the appeal raising an issue of general public importance. He also says costs are unlikely to be awarded because the appeal is under the Human Rights Act, so security would not be appropriate.
[37] The Crown submits that in the absence of impecuniosity, no waiver of security is available. I can understand how that proposition might be drawn from Reekie as the Supreme Court focused very heavily on impecuniosity. I note also that there does not seem to be a reported case where security has been waived, absent impecuniosity, but that is not surprising.
[38] In my view, the Crown’s position is not correct, even on the face of r 20.13(2) itself. I accept that “interests of justice” does invoke something outside of impecuniosity, although not that it is “a very broad discretion”. It is clear from Reekie that, absent agreement, exceptional circumstances would still have to be established. One example where waiver might be granted, although the appellant may not be impecunious, is where a costs order would be unlikely in any event. This was noted as a common category of “claims” for a waiver of security in Reekie.10 Another is appeals over refugee or protected person status which involve international obligations and clear public interest. Often, all these factors overlap and there is a strong impression of impecuniosity in any event.
[39] The first ground of the appellant’s appeal – what is and what is not “personal information” for the purposes of the Privacy Act 1993 – raises a genuine question of public interest. That is accepted by the Crown. In fact, both the Privacy Commissioner and the Director of Human Rights have been joined to the proceeding as intervenors.
10 At [19].
[40] Subsequent to the hearing of this matter, Mr Taylor provided me with an article by Dr Roth, an authority on human rights law. That article relates to the first ground of the appellant’s appeal. Dr Roth opines that the Tribunal has taken a narrow approach to the definition of personal information, contrary to other authority.
[41] I consider that to the extent the appeal involves a clear and meritorious question of public interest, particularly where parties such as the Privacy Commissioner and the Director of Human Rights have intervened, it is not appropriate that security for costs be ordered. Costs are unlikely to be awarded in respect of that point of appeal, regardless of the outcome.
[42] However, Mr Taylor pleads five additional grounds of appeal in respect of which there is no intervenor, and the Crown submits they do not raise issues of public interest, nor are they of any merit. That raises the question of whether there should be no order for security, or a reduction in the amount of security required, a course which the Supreme Court in Reekie suggested in some cases may meet the interests of justice.11
[43] I accept that the five additional grounds do not raise issues of real public interest, at least not in the context of this case, nor do they appear to be meritorious.
[44] Four of these points relate to the partial obscuring of documents, released to Mr Taylor under the Privacy Act, by a watermark which read: “Released under the Privacy Act 1993”, and to the refusal of relief sought by Mr Taylor, including damages. The Tribunal found that the watermark complaint was properly categorised as “trivial”. I note that Dr Roth makes no comment on that part of the Tribunal’s decision, beyond recording it.
[45] The sixth ground – that the Tribunal took an excessive period (over two years) to deliver its judgment – while attracting sympathy, does not appear to be a proper ground of appeal. As the respondent submits, the time taken has not resulted in any error or illegality on which the decision could be challenged on appeal.
11 At [44].
[46] In the course of his 11 October 2018 oral submissions, Mr Taylor said that he would abandon “3.4” of his notice of appeal, where he seeks a declaration that the partial obscurement by the watermark was an interference with his privacy, together with anything related to paragraph 3.4, which he said included “the ground at 1.1”. Paragraph 1.1 of his notice of appeal is one of the four points relating to the watermark issue. Arguably, abandoning 3.4 would have led to the end of the four watermark grounds of appeal, not just one. That would have left only the first ground, relating to the definition of personal information, and the final “ground”, relating to the period taken to deliver the decision.
[47] In one of his subsequent memoranda, Mr Taylor withdrew the concession. The fact of the temporary concession, however far it went, supports the Tribunal’s conclusion, and the respondent’s argument, as to the watermark grounds being trivial.
[48] For the above reasons, I do not consider that this is a case where it can be said costs are unlikely to be awarded in any event. If Mr Taylor fails on his five additional grounds, then in my view, he is likely to be subjected to a costs order.
[49] I therefore do not consider there are exceptional circumstances that would justify a full waiver of security.
[50] Neither party was able to say what proportion of the appeal preparation and hearing time would be occupied by the first ground of appeal, as compared to the remaining five. It seems reasonable to assume that the last five grounds would occupy at least 50 per cent of the time. I note that when he withdrew his concession, Mr Taylor said he would be leading further evidence on the watermark issue, which will require a leave application.
Conclusion
[51] Weighing up all of the above, I have decided that it is in the interests of justice to reduce the amount of security required by 50 per cent.
[52] I therefore order that Mr Taylor pay security for costs in the sum of $2,230 in accordance with r 20.13 of the High Court Rules 2016 within 30 working days of today. The standard time is 10 working days, so I have allowed extra time.
[53] I record that as well as the considerations set out above, I am influenced in my decision by Mr Taylor’s game-playing regarding his concession and subsequent withdrawal of the concession, and regarding my direction that he file evidence as to his impecuniosity. He may as well have declined to file evidence, as file the “affidavit” he did. Both of these matters have already occupied and wasted extra time.
[54] The Crown filed a memorandum dated 7 February 2019, seeking new directions regarding timetabling of the appeal. Rather than make any further directions, I set this matter back down in the Appeals List on Tuesday, 16 April 2019 at 9.00 am. The parties are to file memoranda as to directions sought, or hopefully a joint memorandum.
---------------------------------------------------
Hinton J
1
3
1