Vukomanovic v Residence Review Board - [2011] NZCA 615

IN THE COURT OF APPEAL OF NEW ZEALAND

CA479/2011
[2011] NZCA 615

BETWEEN GORDANA VUKOMANOVIC
Applicant

AND THE RESIDENCE REVIEW BOARD
Respondent

Counsel: Applicant in person
J Foster for Respondent

Judgment: 2 December 2011 at 10.30 am

JUDGMENT OF ARNOLD J

The application for review of the acting Registrar’s decision as to security for costs is dismissed. Security for costs of $5,560 must be paid into Court within 20 working days of the date of this judgment.

REASONS

Introduction

On 4 August 2010, Joseph Williams J dismissed an application by Ms Vukomanovic for judicial review of the Residence Review Board’s decision to decline her residency application.[1] Ms Vukomanovic then filed an application to recall the judgment of 4 August 2010, which was also dismissed.[2] On 15 July 2011, Joseph Williams J awarded costs of $3,008 against her in respect of the unsuccessful recall application (the costs decision).[3]
[1]Vukomanovic v Chief Executive of the Department of Labour HC Wellington CIV-2010-485-497, 4 August 2010.
[2]Vukomanovic v Chief Executive of the Department of Labour HC Wellington CIV-2010-485-497, 17 November 2010.
[3]Vukomanovic v Chief Executive of the Department of Labour HC Wellington CIV-2010-485-497, 15 July 2011.
Ms Vukomanovic filed an appeal against the costs decision in this Court on 4 August 2011. Security for costs on the appeal was set at $5,560. On 30 August 2011 Ms Vukomanovic applied for a dispensation from the requirement to pay security for costs.[4] Counsel for the respondent filed a memorandum opposing the application. In a letter dated 15 September 2011, the Acting Registrar declined to dispense with security. This is an application for review of that decision.

The Acting Registrar’s Decision

[4] Court of Appeal (Civil) Rules 2005, r 35(6)(c).

In declining Ms Vukomanovic’s application, the Acting Registrar noted that it was difficult to determine from the application and affidavits what grounds she sought to rely on. However, as she had annexed to her affidavit various financial documents, such as a fee waiver and bank statements, the Registrar inferred that she was trying to indicate she was impecunious. He said that impecuniosity alone does not mean that security for costs should be dispensed with. Further, the Registrar noted that the circumstances of the appeal could not be considered exceptional and that the appeal did not raise any issues of public importance or significance. Accordingly, he found there was nothing to justify security being dispensed with. It was necessary to protect the respondent in the event that the appeal was unsuccessful and a costs award was made in its favour. Security remained set at $5,560, to be paid within 20 working days from the date of the Registrar’s letter.

Security for Costs - General Principles

In the normal course, appellants in civil proceedings in this Court are required to pay security for costs.[5] The Registrar may vary or waive security “if satisfied that the circumstances warrant it”.[6]
[5]Rule 35(2).
[6]Rule 35(6).
Security for costs will be waived where it is in the interests of justice…

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.

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Details

Case: [2011] NZCA 615
Decision Date: 2 December 2011

CaseChat Overview and Summary

Ms Gordana Vukomanovic appealed the decision of the Acting Registrar to require her to pay security for costs in relation to an appeal against a costs order. The appeal was dismissed. Vukomanovic sought judicial review of the Residence Review Board’s decision to decline her residency application. The application was dismissed, as was an application for a recall of the decision. Vukomanovic was ordered to pay costs in relation to the recall application. Vukomanovic appealed the costs order, but was required to pay security for costs of $5,560 in relation to the appeal. Vukomanovic applied to have the requirement to pay security for costs dispensed with, but the Acting Registrar declined the application. Vukomanovic applied for review of the Registrar’s decision. Vukomanovic argued that she should not be required to pay security for costs because she was impecunious and that the appeal was a matter of public interest. The court dismissed the application for review, finding that Vukomanovic’s financial position did not justify dispensing with the requirement to pay security for costs and that the appeal did not involve public interest considerations.

Orders