JEREMY JAMES MCGUIRE v NEW ZEALAND LAW SOCIETY [2020] NZSC 114

JEREMY JAMES MCGUIRE v NEW ZEALAND LAW SOCIETY [2020] NZSC 114 [20 October 2020]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 55/2020[2020] NZSC 114BETWEEN JEREMY JAMES MCGUIREApplicantAND NEW ZEALAND LAW SOCIETYRespondentCourt: Glazebrook, Ellen France and Williams JJCounsel: Applicant in personP N Collins for RespondentJudgment: 20 October 2020JUDGMENT OF THE COURTA The application for leave to appeal is dismissed.B The applicant must pay the respondent costs of $2,500.____________________________________________________________________REASONSIntroduction[1] Mr McGuire seeks leave to appeal from a judgment of Courtney J in the Courtof Appeal declining a review of the Deputy Registrar's decision.1 The DeputyRegistrar declined to deal with Mr McGuire's application to dispense with security forcosts on the basis there was no jurisdiction to do so.1 McGuire v New Zealand Law Society [2020] NZCA 271 [CA judgment].Background[2] The present application has its genesis in a decision of the Central StandardsCommittee 3 of the New Zealand Law Society to censure Mr McGuire fornon-payment of a barrister's invoice in relation to an opinion provided by the barrister.Mr McGuire's application for judicial review against that decision was dismissed byClark J in the High Court.2 Essentially, the High Court considered the case turned onwhether, in accordance with r 10.7 of the Lawyers and Conveyancers Act (Lawyers:Conduct and Client Care) Rules 2008, Mr McGuire and the barrister concerned hadreached an agreement contrary to the usual position under which a lawyer whoinstructs another lawyer must pay the other lawyer's account promptly and in full.3The Judge found there was no agreement to the contrary and Mr McGuire hadunequivocally told the barrister that the barrister would be paid promptly and in fullon provision of the opinion.[3] Mr McGuire filed a notice of appeal to the Court of Appeal. This was filed aday out of time but time for filing was extended to 27 November 2019. Security forcosts was fixed at $7,060. Under r 35(2) and (3) of the Court of Appeal (Civil)Rules 2005, security for costs was required to be paid within 20 working days afterthe notice of appeal was filed. By consent, the deadline for payment of security forcosts was extended by two months. Mr McGuire did not pay but filed an applicationfor waiver of fees along with a letter. These documents made it clear Mr McGuiresought to be relieved of paying security for costs on the ground his appeal raised issuesof public importance. He asked that the letter be treated as an application fordispensation.[4] Under r 35(7)(a), the application for dispensation also had to be made within20 working days after the date of filing the notice of appeal, as Mr McGuire wasadvised by the Registry. Mr McGuire's application was not filed within that time. Hecould have sought an extension of time to file the dispensation application under2 McGuire v New Zealand Law Society [2019] NZHC 2748.3 Mr McGuire's client paid the agreed fee for the barrister's opinion into Mr McGuire's trustaccount. The barrister was insistent on knowing the money was there and that he would be paidon the day the opinion was provided. Mr McGuire did not think the opinion was sufficient andrefused to pay. The Standards Committee considered that if he was unhappy with the opinion hehad to dispute it through the "proper professional channels".r 35(10) as the Deputy Registrar asked him to do, but he refused. The Deputy Registraraccordingly took the view there was no jurisdiction to consider the application todispense with security for costs. Nonetheless, the Deputy Registrar considered thequestion of dispensation on a hypothetical basis and said dispensation would not begranted.[5] Courtney J upheld the Deputy Registrar's decision as to jurisdiction and alsoconsidered dispensation would not be granted. The Judge took the view that the issuesMr McGuire sought to raise on his substantive appeal were "entirely hypothetical"given the High Court Judge's factual finding that there had been an unequivocalconfirmation Mr McGuire would comply with r 10.7.4[6] The position is complicated by the fact Mr McGuire sought and was granteddeferrals of the dates for payment of security, for filing the case on appeal and forseeking the allocation of a hearing date. Those deferred dates have now passed andthe appeal has reached the point where it is deemed to be abandoned under r 43 of theCourt of Appeal (Civil) Rules.The proposed appeal[7] On the proposed appeal to this Court, Mr McGuire says the fact he has engagedr 35(6) (the ability of the registrar on application to increase, reduce or dispense withsecurity or defer the date of payment) and the deferral of the dates of payment meanr 35(6) and (7) are sidelined and rr 37 and 43 are effectively deemed to have beenconsequentially amended. He says that there is a public interest in clarifying theapplication of these regularly used rules. He also seeks to argue this Court shouldreconsider the approach to security for costs in Reekie v Attorney-General.5[8] The respondent says the fact the appeal is now deemed abandoned is the endof the matter but, in any event, the criteria for leave are not met.4 CA judgment, above n 1, at [22].5 Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.Our assessment[9] We are satisfied that the criteria for leave to appeal are not met.6 The proposedappeal would turn on what is a fairly commonplace application of the Court of Appeal(Civil) Rules to a particular fact situation. Nor does anything raised by Mr McGuiresuggest this Court should revisit its recent consideration of the approach to securityfor costs in Reekie. No question of general or public importance accordingly arises.7Further, while of the view there was no jurisdiction to do so, both the Judge and theDeputy Registrar addressed the merits of Mr McGuire's application for dispensationof security for costs. Mr McGuire does not point to anything in that analysis thatwould give rise to the appearance of a miscarriage of justice as that term is understoodin civil appeals.8Result[10] The application for leave to appeal is accordingly dismissed. We make an orderthat the applicant pay costs of $2,500 to the respondent.Solicitors:G D Smith, New Zealand Law Society, Wellington for Respondent6 Senior Courts Act 2016, s 74(2).7 We also do not consider this is an appropriate case to consider broader questions (if any) about therelationship between this Court's decision in Lai v Chamberlains [2006] NZSC 70, [2007]2 NZLR 7 and changes to the intervention rule in 2015; and fairness issues in relation to the currentpractice as to costs.8 Junior Farms Ltd v Hampton Securities Ltd (in liq) [2006] NZSC 60, (2006) 18 PRNZ 369.