EASTON V WELLINGTON CITY COUNCIL COA CA813/2010

EASTON V WELLINGTON CITY COUNCIL COA CA813/2010 27 June 2011IN THE COURT OF APPEAL OF NEW ZEALANDCA813/2010[2011] NZCA 296BETWEEN BENJAMIN MORLAND EASTONAppellantAND WELLINGTON CITY COUNCILRespondentCounsel: Appellant in PersonJudgment: 27 June 2011 at 10:00 AMJUDGMENT OF CHAMBERS JA The application to review the sum fixed by way of security for costs is dismissed.B The appellant must pay security for costs of $5,560 on or before 5 July 2011.REASONS[1] Benjamin Easton, the appellant, has appealed against a decision of Clifford J delivered on 29 October last year.1 Clifford J's decision dealt with two different civilproceedings. The first was a purported appeal from a decision of the Environment Court.2 His Honour held he had no jurisdiction to hear that appeal, a conclusion which has subsequently been confirmed in this Court.3 That aspect is, therefore, off the table.[2] The other proceeding was an application for judicial review of the WellingtonCity Council's decision to revoke the pedestrian status of Manners Mall.4 The Judge struck out that proceeding. Mr Easton appeals against that aspect of the decision.1 Easton v Wellington City Council HC Wellington CIV-2010-485-678 and CIV-2010-485-748, 29 October 2010.2 CIV-2010- 485-678.3 Easton v Wellington City Council [2011] NZCA 27.4 CIV-2010-485-748.[3] The Registrar fixed security for costs at $5,560. Mr Easton sought an order dispensing with security. The Registrar, by decision dated 10 May 2011, refused to dispense with security. She did not accept Mr Easton's submission that the appeal was "high profile and significant". Although she accepted Mr Easton was "impecunious", she referred to the following passage from a decision of Arnold J, inwhich His Honour dealt with an application for review of a security for costs decision. This application involved the same Mr Easton who is appealing in the present case. Arnold J said:5[5] The appellant receives an unemployment benefit and appears to have little else in the way of income or assets. I accept that he is impecunious. However, impecuniosity does not automatically mean that security for costs should be waived, although it may well lead to a reduction in the amount awarded: see MacLeod v Housing New Zealand Corporation Limited HC AK M256/02 9 October 2002 at [9]. The touchstone is whether the interests of justice require that a waiver or dispensation be given: see Blanshard v The National Life of Australasia Limited HC AK CIV-2001-404-001961 10 December 2003 at [8]. It is relevant to consider whether the appellant'sappeal rights will be rendered nugatory if no appeal is granted, but it is also relevant to consider the merits of the appeal to see whether the appellant has an arguable case. A respondent should not be put to the expense of arguing a meritless appeal without some protection for its costs.[4] I accept the correctness of that approach. I also consider the Registrar'sdecision in the present case was clearly correct.[5] First, the grounds of appeal are very weak. The first ground is that Clifford J's decision was "in open dishonour of judicial privilege". That ismeaningless. The second ground of appeal is said to be that Clifford J omitted"substantive matters from the judgment". These are said to be:(a) Allegations that critical evidence was stolen from a secure Environment Court during the proceedings are not included.(b) Facts of a council ordered application constructing unsafe public property under an unlawful application are stayed wholly by judicial neglect and its protection.[6] I can quite understand why Clifford J omitted those matters. They are not relevant to anything.5 Easton v Broadcasting Commission [2009] NZCA 252.[7] The third ground of appeal is said to be that "the matter is deep set in the public interest" as it involves "the Mayor's responsibility to vote according to law".The notice of appeal continues:The Court does not have Her Majesty's authority to trivialise the mattersbefore the Court.[8] Clifford J dealt with his matter, which concerns Mr Easton's assertion that theformer Mayor of Wellington should not have voted at the time of the Council'sdecision to revoke the pedestrian status of Manners Mall. Whatever the rights and wrongs of that, the answer seems plain, and it is the answer provided first by the Environment Court and then by Clifford J. The Environment Court heard the matter afresh. For that reason, the Environment Court did not have to engage with the matters Mr Easton raised regarding what Mr Easton asserted to be the formerMayor's "undeclared conflict of pecuniary interest". Clifford J agreed with theEnvironment Court on that issue.6[9] It is not my job at this stage to determine whether or not Mr Easton's appealwill be successful. But I would say the merits appear very slight. (I provide an assurance to Mr Easton that I will not be sitting on the appeal.) For that reason, it is likely the Council will be entitled to costs if the appeal is unsuccessful. That is a strong factor to be taken into account.[10] Secondly, unless the Council has security it is highly unlikely the Council will be able to recover any award of costs in its favour.[11] Thirdly, I do not consider the public interest in this appeal to be high.[12] For the reasons given by the Registrar, with which I agree, and for the further reasons I give here, I decline the application for leave to review the Registrar'sdecision. Mr Easton must pay the security for costs ordered on or before 5 July 2011.6 At [70].