GORDANA VUKOMANOVIC V THE RESIDENCE REVIEW BOARD COA CA479/2011

GORDANA VUKOMANOVIC V THE RESIDENCE REVIEW BOARD COA CA479/2011 2 December 2011IN THE COURT OF APPEAL OF NEW ZEALANDCA479/2011[2011] NZCA 615BETWEEN GORDANA VUKOMANOVICApplicantAND THE RESIDENCE REVIEW BOARDRespondentCounsel: Applicant in personJ Foster for RespondentJudgment: 2 December 2011 at 10:30 AMJUDGMENT OF ARNOLD JThe application for review of the acting Registrar's decision as to security forcosts is dismissed. Security for costs of $5,560 must be paid into Court within 20 working days of the date of this judgment.REASONSIntroduction[1] On 4 August 2010, Joseph Williams J dismissed an application by Ms Vukomanovic for judicial review of the Residence Review Board's decision todecline 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 2011,1 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.Joseph Williams J awarded costs of $3,008 against her in respect of the unsuccessful recall application (the costs decision).3[2] 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[3] 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[4] 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".63 Vukomanovic v Chief Executive of the Department of Labour HC Wellington CIV-2010-485-497,15 July 2011.4 Court of Appeal (Civil) Rules 2005, r 35(6)(c).5 Rule 35(2).6 Rule 35(6).[5] Security for costs will be waived where it is in the interests of justice to do so. There must be some exceptional circumstance to justify waiver.7 The appellant must honestly intend to pursue the appeal and it must be arguable, as respondents should not face the threat of hopeless appeals without provision for security. The importance of the issues raised in the appeal will be significant, as will the question whether there is any public interest in having them determined.8 Impecuniosity alone is not usually sufficient to justify a waiver, but may be reason to reduce the quantum of security.9Discussion[6] I consider that the Registrar was right to refuse to dispense with the requirement to pay security for costs.[7] Ms Vukomanovic applied for dispensation from the requirement to pay security for costs in a related appeal. In that instance, the Registrar declined to waive the payment of security but reduced the amount payable to $2,500. Ms Vukomanovic applied for a review of that decision. In a decision dated 17 March 2011, Chambers J dismissed her application.10 The Judge noted that, although Ms Vukomanovic claimed she was impecunious, the evidence as to her financial position was sparse and incomplete. Moreover, the Judge regarded the appeal as hopeless.[8] Ms Vukomanovic's present application for review of the Registrar's decisionagain relies on impecuniosity as the primary ground for dispensing with security. Ms Vukomanovic states that she is an unpaid caregiver to her mother. As an additional ground, she also appears to suggest that the appeal is a matter of public interest, as she should not be deported on the basis that she is unable to pay security for costs in respect of appeals relating to her residency application.7 Fava v Zaghloul [2007] NZCA 498 at [9].8 Creser v Official Assignee CA196/05, 12 June 2006 at [29].9 Fava v Zaghloul at [9]; Easton v Broadcasting Commission [2009] NZCA 252 at [5].10 Vukomanovic v Residence Review Board [2011] NZCA 74.[9] As to the first ground, the documents filed by Ms Vukomanovic with her 30 August application to dispense with security do indicate that she is unable to pay security for costs in the amount set. However, as the Registrar found, that alone cannot be sufficient reason to dispense with security.[10] As to the second ground, the appeal before this Court relates to a costs award against Ms Vukomanovic. It has no bearing on her residency application and, even if the appeal is successful, it will have no impact on her vulnerability to deportation. As I understand it, her appeal rights in that connection have now been exhausted so that there is nothing to stop her being deported.[11] Finally, an appeal against a standard costs order does not involve public interest considerations. The Judge applied the ordinary principle that costs follow the event.11 He awarded costs on a 2A scale as opposed to the 2B scale sought by the respondent. The amount involved is very modest. On the face of it, there is nothing to suggest that the Judge erred in law or principle, took into account irrelevant considerations or disregarded relevant considerations, or that his decision was plainly wrong.12 In those circumstances, the appeal is unlikely to succeed. The respondent should not be forced to face the threat of another hopeless appeal without provision for security.Decision[12] The application for review of the Registrar's decision as to security for costsis declined. Security for costs of $5,560.00 must be paid into Court within 20 working days of the date of this judgment. There is no order for costs on this application.Solicitors:Crown Law Office, Wellington for Respondent11 High Court Rules, r 14.2(a).12 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].