Wislang v Attorney-General

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA624/2020
[2022] NZCA 452

BETWEEN	MILES ROGER WISLANG Appellant
AND	ATTORNEY-GENERAL OF NEW ZEALAND First Respondent WHITE ISLAND TOURS LIMITED Second Respondent WORKSAFE NEW ZEALAND Third Respondent

Court:	Brown, Gilbert and Collins JJ
Counsel:	Appellant in Person K G Stephen and A M Piaggi for First Respondent G R Nicholson and R A Idoine for Second Respondent S V McKechnie and T J Bremner for Third Respondent
Judgment: (On the papers)	27 September 2022 at 11.30 am

JUDGMENT OF THE COURT

The appeal is struck out.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

This appeal was filed on 30 October 2020. On Dr Wislang’s application to reduce security for costs, in a decision dated 5 February 2021 the Deputy Registrar reduced the amount of security from $21,180 to $14,120 to reflect the fact that the Attorney-General would not be taking an active part in the appeal. Dr Wislang did not apply to review that decision.
Subsequent steps in the appeal are recorded in this Court’s judgment of 28 July 2022, which granted an extension of time for the filing of the case on appeal and the lodging of an application for the allocation of a hearing date.[1] The judgment noted that security for costs was payable 10 working days after the date of that judgment.[2]
[1]Wislang v Attorney-General [2022] NZCA 341.
[2]At [17].
Dr Wislang has filed what purports to be a case on appeal, albeit without consultation with the respondents. He has also sought the allocation of a hearing date. However he has not paid security for costs. Rule 37(2) of the Court of Appeal (Civil) Rules 2005 (the Rules) states that an appellant may not apply for the allocation of a hearing date if in default of an obligation to pay security for costs.
On 29 August 2022 Dr Wislang filed a further amended notice of appeal in which WorkSafe New Zealand was the only named respondent. He contends that because there is now only one respondent, the amount of security should be further reduced. In a subsequent memorandum of 16 September 2022 Dr Wislang explains that he is seriously impecunious as a result of having been bankrupted by White Island Tours Ltd for failing to pay the costs order made against him in the High Court proceedings.
Irrespective of whether it is appropriate for Dr Wislang to in effect unilaterally abandon the appeal vis‑à‑vis other respondents, the fact remains that Dr Wislang has not paid the security for costs payable in respect of WorkSafe New Zealand. Consequently he is not entitled to apply for the allocation of hearing date. Hence he has not complied with the obligation under r 43(1) of the Rules within the extension granted in our July judgment.
In these circumstances we make an order under r 37(1) of the Rules striking out Dr Wislang’s appeal on account of his persistent failure to pay security for costs.

Solicitors:

Crown Law Office, Wellington for First Respondent
Anthony Harper, Auckland for Second Respondent

Simpson Grierson, Wellington for Third Respondent

CaseChat Overview and Summary

The Court of Appeal of New Zealand delivered its judgment in the appeal of Miles Roger Wislang against the Attorney-General of New Zealand, White Island Tours Limited, and WorkSafe New Zealand. The appeal was filed on 30 October 2020 by Dr Wislang, who sought to reduce the security for costs. The Deputy Registrar subsequently reduced the amount of security from $21,180 to $14,120, but Dr Wislang did not challenge this decision. Dr Wislang subsequently sought to amend the notice of appeal to exclude certain respondents and reduce the security amount further, citing his financial difficulties.

The primary legal issue before the Court was whether Dr Wislang's failure to pay the reduced security for costs justified the striking out of his appeal. The Court of Appeal noted that Rule 37(2) of the Court of Appeal (Civil) Rules 2005 stipulated that an appellant could not apply for a hearing date if they were in default of paying security for costs. Despite an extension of time granted by the Court to file the case on appeal, Dr Wislang had not paid the security for costs. He attempted to amend the notice of appeal to reduce the security amount further, but this did not address his primary default.

The Court held that Dr Wislang's persistent failure to pay the security for costs constituted a breach of the Court's rules. Despite his financial difficulties, the Court found that this did not excuse his failure to comply with the rules. The Court exercised its discretion under Rule 37(1) of the Court of Appeal (Civil) Rules 2005 to strike out Dr Wislang's appeal due to his non-compliance with the obligation to pay security for costs. The Court emphasized that this decision was not a reflection on Dr Wislang's financial situation but rather on his failure to adhere to the procedural requirements of the Court.

The Court made an order under Rule 37(1) of the Court of Appeal (Civil) Rules 2005 to strike out Dr Wislang's appeal. This decision underscores the importance of adhering to procedural requirements in Court, particularly in relation to security for costs, and highlights the Court's willingness to enforce these rules strictly.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established