Wootton v Wootton

[2021] NZCA 243

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA600/2020
 [2021] NZCA 243

BETWEEN	MARGARET ANN WOOTTON Applicant
AND	PHILLIP GARRY WOOTTON Respondent

Counsel:	Applicant in Person E J Collins for Respondent
Judgment:	10 June 2021 at 9.30 am

JUDGMENT OF COURTNEY J
[Review of Registrar’s decision]

AThe application for review of the Deputy Registrar’s decision is granted.

BThe application for suspension of the time to comply with r 43(1) of the Court of Appeal (Civil) Rules 2005 is referred back to the Deputy Registrar for reconsideration.

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REASONS

1. This is a review of a Deputy Registrar’s decision declining to grant a suspension of time for complying with r 43 of the Court of Appeal (Civil) Rules 2005.

Procedural history

1. On 19 October 2020 Ms Wootton filed a notice of appeal against a decision of Associate Judge Johnston.[1]  She sought to have security for costs dispensed with.  A Deputy Registrar suspended the time for complying with r 43(1) pending determination of the application to dispense with security for costs.[2]  Dispensation with security for costs was refused.  Ms Wootton sought a review of that decision.  The Deputy Registrar granted a further suspension of time pending the review.  The application for review was unsuccessful.[3]  The Deputy Registrar advised that r 43 would have to be complied with by 19 April 2021.

   [1]Wootton v Wootton [2020] NZHC 2684.

   [2]Court of Appeal (Civil) Rules 2005, r 43(1B)(b).

   [3]Wootton v Wootton [2021] NZCA 63.

2. Ms Wootton applied for a further suspension on the ground that she had a pending legal aid application.[4]  The Deputy Registrar granted the suspension.  In April 2021 Legal Aid Services advised that Ms Wootton had made an application for legal aid in November 2020 and again in April 2021 but that both applications had been returned to her because they were incomplete.  On 14 May the Deputy Registrar informed Ms Wootton that since determination of the legal aid application was no longer pending, no further extension of time to comply with r 43 would be granted.  This is the decision under review.

Review

[4]Court of Appeal (Civil) Rules, r 43(1B)(a).

1. Ms Wootton asserts that her legal aid application is still on foot and the Deputy Registrar may therefore grant a further extension.  She points to s 16 of the Legal Services Act 2011 which provides that upon an application for legal aid, the Commissioner may either grant legal aid, grant legal aid on an interim basis, request further information or decline the application.  Further, the Grants Handbook relating to legal aid applications advises that incomplete applications will not be rejected but will be returned to the provider.[5]  In these circumstances, Ms Wootton maintains that there is still a legal aid application on foot and asserts that she is currently in communication to progress that application.  Separately, she raises the fact that she has had medical appointments to attend to throughout this period, though this fact does seem to have any relevance to the issue before me.  

   [5]Ministry of Justice Legal Aid Services Grants handbook (May 2021) at 14. 

2. 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.[6]  The Deputy Registrar’s view that there was no current application was therefore mistaken.  

   [6]McGreevy v Chief Executive of the Department of Corrections [2019] NZCA 70, (2019) 24 PRNZ 585 at [14].

3. 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.

Result

1. The application for review of the Deputy Registrar’s decision is granted.

1. The application for suspension of the time to comply with r 43(1) is referred back to the Deputy Registrar for reconsideration.

Solicitors:
Collins & May Law, Lower Hutt for Respondent