Wootton v Wootton
[2021] NZCA 597
•12 November 2021 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA600/2020 [2021] NZCA 597 |
| BETWEEN | MARGARET ANN WOOTTON |
| AND | PHILLIP GARRY WOOTTON |
| Counsel: | Appellant in Person |
Judgment: | 12 November 2021 at 10.30 am |
JUDGMENT OF BROWN J
(Review of Deputy Registrar’s decision)
AThe application to review the Deputy Registrar’s decision declining to grant a suspension of time under r 43(1B)(a) of the Court of Appeal (Civil) Rules 2005 is declined.
B The stay granted in [2020] NZCA 542 is set aside. ____________________________________________________________________
REASONS
Introduction
On 19 October 2020 Ms Wootton filed a notice of appeal against a judgment of the High Court dismissing her application for an order pursuant to s 143 of the Land Transfer Act 2017 sustaining caveats against the titles to three properties.[1] On 4 November 2020 Cooper J granted a stay prohibiting removal of the caveats pending disposition of the appeal or an earlier order of this Court setting aside the stay.[2]
[1]Wootton v Wootton [2020] NZHC 2684.
[2]Wootton v Wootton [2020] NZCA 542.
In a decision dated 18 June 2021 the Deputy Registrar declined an application by Ms Wootton under r 43(1B)(a) of the Court of Appeal (Civil) Rules 2005 (the Rules) for a sixth suspension of the application of r 43 to her appeal. Ms Wootton has applied for a review of that decision.
Relevant background
On filing her appeal Ms Wootton applied for a waiver of the filing fee of $1,100. That application was declined by the Deputy Registrar. The Deputy Registrar also declined an informal application by Ms Wootton for dispensation from the requirement to consult with the respondent on the preparation of the case on appeal.
Security for costs was set at $7,060. Ms Wootton applied under r 35(6) of the Rules for security to be reduced or dispensed with. That application was also declined by the Deputy Registrar.
Ms Wootton sought review of the Deputy Registrar’s decisions. In a judgment dated 16 March 2021 Clifford J granted Ms Wootton’s application to review the decisions concerning the filing fee waiver and the process for preparation of the case on appeal. However the Judge declined her review in respect of the decision declining to dispense with the requirement to pay security for costs.[3]
[3]Wootton v Wootton [2021] NZCA 63.
The Judge noted that the Deputy Registrar had determined her security for costs decision on the basis that the judgment under appeal showed there was little or no possibility of a successful appeal and that accordingly it was not an appeal that a reasonable and solvent litigant would seek to pursue. The Judge stated:
[26] I agree. As the Deputy Registrar noted, in the decision under appeal Associate Judge Johnston found that Ms Wootton could not establish even an arguable claim to a proprietary interest in any of the three properties so as to enable her to sustain her caveats.
[27] Ms Wootton claimed a proprietary interest based on an equitable interest arising from common law fraud or deceit on the part of Mr Wootton in the lead up to the resolution of the parties’ relationship property proceedings by way of a consent order made by the Family Court in July 2008. It was not until February 2020 that Ms Wootton filed the challenged caveats.
[28] The Associate Judge could not identify any evidence at all establishing material non-disclosure by Mr Wootton, such as to found a claim of common law fraud or deceit. The Associate Judge also found there was no prospect, in all the circumstances, of the proceeds said to have been fraudulently obtained being traced into the properties caveated by Ms Wootton as those proceeds were received, and the properties acquired, by different legal entities.
(Footnotes omitted.)
Security for costs have still not been paid.
The three month period for compliance with r 43(1) expired on 19 January 2021. On that day Ms Wootton applied under r 43(1B) for a suspension of time. That application was granted. Further extensions were granted in February, March and April.
A fifth suspension, which would have commenced on 19 May 2021, was originally declined. However on 10 June 2021 Courtney J allowed a review of that decision and referred the application for suspension back to the Deputy Registrar for reconsideration.[4] The Judge stated:
[5] I agree that, on the facts available, Ms Wootton’s legal aid application is still pending. This Court has previously held that a legal aid application is to be treated as having been made at the time it is initially filed, even if the application is subsequently returned because it did not provide all the required information. The Deputy Registrar’s view that there was no current application was therefore mistaken.
[6] I refer the matter back to the Deputy Registrar for reconsideration. In doing so, I note that the decision to grant a suspension when there is a current legal aid application is discretionary. Ms Wootton has given no information about what is required to advance her legal aid application, nor the expected time frame for doing so. Appellants are expected to advance their appeals diligently. If legal aid is required, they are expected to advance that application diligently. The mere fact that an application has been made for legal aid will not necessarily justify a further suspension being granted. Rather, it is for the Deputy Registrar to take into account all the relevant circumstances in exercising the discretion.
(Footnote omitted.)
[4]Wootton v Wootton [2021] NZCA 243.
On reconsideration the Deputy Registrar granted the fifth suspension but informed Ms Wootton that any further application for suspension would require full details and evidence of the information that remained incomplete in her legal aid application and the expected timeframe for completing that information.
On 17 June 2021 Ms Wootton applied for a sixth extension under r 43(1B).
The Deputy Registrar’s decision
The Deputy Registrar accepted the submission by counsel for Mr Wootton that Ms Wootton had not provided information about the expected timeframe for advancing her legal aid application. Rather the information provided about timeframes related to a complaint against a legal aid practitioner. Nor did the Deputy Registrar consider that Ms Wootton had provided full details of the information that remained incomplete in her legal aid application. Ms Wootton had simply said she needed a lawyer to complete the paperwork required by Legal Aid.
The Deputy Registrar stated:
[14] The only thing I have been able to discern on this point from Ms Wootton’s email yesterday is that she does not have a lawyer who can act for her and complete the paperwork for her legal aid application. This indicates that the April 2021 legal aid application was submitted by Ms Wootton, not a lawyer on her behalf. In my view, this would mean the application is more than just an incomplete application, for which missing information could readily be completed so as to enable resubmission. Without a lawyer, any application for legal aid would, in substance, be meaningless. In this respect, I note a recent decision of this court relating to r 36 of the Rules, which deals with applications that have been made for legal aid, in which Collins J stated:[5]
For an appellant in civil proceedings to have applied for legal aid, a legal aid lawyer must have made an application to Legal Aid Services on their behalf.
[15] Ms Wootton has also not advised of any discussions she may be having with any legal aid lawyers, which could lead to their agreement to act on her behalf. There appears to have been no progress in the quest for legal aid since the appeal was filed seven months ago. I note that security for costs has now been overdue for five months, and Ms Wootton has already had the benefit of five suspensions in respect of r 43.
[16] Finally, I note that both Clifford J and I consider this appeal to be one with which a reasonable and solvent litigant would not proceed because there is little or no possibility of success. I also consider there is an element of vexatiousness in this appeal.
Approach on review
[5]Prescott v Thompson [2021] NZCA 186 at [23].
The Supreme Court has held, albeit in the context of a review of a security for costs decision, that the review function of a Judge is to be exercised de novo.[6] Consequently in a Minute dated 29 September 2021 I requested Ms Wootton to provide full details of all her communications to and from Legal Aid for the period from 18 June 2021 to the date of the minute.
[6]Reekie v Attorney General [2014] NZSC 63, [2014] 1 NZLR 737 at [23].
On 13 October 2021 Ms Wootton filed a memorandum in response to my Minute which annexed several documents, including communications from Legal Aid, the Ministry of Justice and the Office of the Ombudsman.
Discussion
On the basis of the material available to me it appears clear that Ms Wootton’s legal aid application is no longer pending. A letter dated 29 June 2021 from Legal Aid to Ms Wootton annexed to her memorandum of 13 October 2021 states:
I refer to your complaint form regarding your legal aid lawyer dated 14 June 2021. In your complaint you ask for the Commissioner to reassign your case if possible. Your legal aid grant is unable to be reassigned as it closed. Your grant was refused on 28 September 2018 and this refusal was confirmed after a reconsideration of this decision on 16 November 2018.
Legal Aid Services cannot assign a civil lawyer to you, you will need to find one yourself. If you wish to try to reapply for legal aid for your matters or any other matter, you will need to find your own civil legal aid lawyer to represent you and fill out a new application.
Another annexure, a letter dated 24 June 2021 from the Ministry of Justice, refers to a complaint made by Ms Wootton about a former lawyer whose name Ms Wootton has redacted. The letter states that the Ministry is unable to take the matter further because Ms Wootton’s complaint is outside the scope of the complaints’ management process. In her memorandum Ms Wootton states that on 7 July 2021 she sought a review by the Ombudsman of the Ministry of Justice complaints process, a matter which she describes as “still being worked through”. However, notwithstanding Ms Wootton’s pursuit of such other matters, I consider that for the purposes of r 43(1B)(a) her application for legal aid has been finally determined.
In exercising the review jurisdiction I am required to consider afresh the request for the grant of a suspension of r 43. I note first that the first anniversary of the filing of Ms Wootton’s appeal has now passed. I consider that there has been ample opportunity during that period to assemble the case on appeal, notwithstanding Ms Wootton’s desire to have her legal representation funded by legal aid.
Secondly, notwithstanding her unsuccessful review of the Deputy Registrar’s security for costs determination, Ms Wootton has not paid security for costs. Consequently she is not entitled to apply for the allocation of a hearing date.[7] Thus she is precluded at this time from complying with r 43(1).
[7]Court of Appeal (Civil) Rules 2005, r 37(2).
Thirdly this is a case where the prospects of success on appeal are remote. My assessment is consistent with that of the Deputy Registrar and Clifford J in the context of the security for costs review.[8]
[8]At [6] above.
For these reasons I reach the same conclusion as the Deputy Registrar in her decision of 18 June 2021. I exercise my discretion against the grant of a sixth suspension of the r 43 period. As this results in Ms Wootton’s appeal being deemed abandoned, it is also proper to set aside the stay granted in November 2020.
Result
The application to review the Deputy Registrar’s decision declining to grant a suspension of time under r 43(1B)(a) of the Rules is declined.
The stay granted in [2020] NZCA 542 is set aside.
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