MCGUIRE v SECRETARY FOR JUSTICE [2019] NZCA 512

MCGUIRE v SECRETARY FOR JUSTICE [2019] NZCA 512 [23 October 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA70/2019[2019] NZCA 512BETWEEN JEREMY JAMES MCGUIREAppellantAND SECRETARY FOR JUSTICERespondentHearing: 21 October 2019Court: Brown, Gilbert and Goddard JJCounsel: Appellant in personG L Melvin and A R Williams for RespondentJudgment: 23 October 2019 at 3 pmJUDGMENT OF THE COURTA The application under r 43 of the Court of Appeal (Civil) Rules 2005 foran extension of time to apply for a hearing date is granted.B Mr McGuire must pay security for costs in the sum of $6,600 and apply fora hearing date within five working days of the date of this judgment.C We make no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Mr McGuire, a legal practitioner who is not represented inthis proceeding, applies under r 43 of the Court of Appeal (Civil) Rules 2005 foran extension of time to pay security for costs and apply for a hearing date forhis appeal.[2] Mr McGuire filed the case on appeal and paid the scheduling fee within time.He could not apply for a hearing date because he had not paid security for costs.1He says he understood that time under r 43 was not running against him because hehad applied to defer payment of security for costs and this application had not beendetermined by the time the three-month time limit expired. Mr McGuire advises he isable to pay security for costs and apply for a hearing date immediately if an extensionis granted.[3] Mr McGuire's application for an extension of time is nevertheless opposed bythe respondent.Procedural background[4] In a judgment delivered on 31 January 2019, the High Court dismissedMr McGuire's application for judicial review in which he challenged a decision ofthe Secretary for Justice on 27 October 2015 declining his application to provide legalaid services in a specified category of criminal work.2[5] Mr McGuire filed a notice of appeal against the High Court judgmenton 1 March 2019. Security for costs was set at $13,200 and Mr McGuire was advisedon 11 March 2019 that he had until 22 March to pay it. He did not.[6] On 25 March 2019, Mr McGuire sought a deferral of the time for payment ofsecurity for costs on the basis that he had "not had time to fully consider [his] position"and the proceedings "may be discontinued against at least one of the respondents".The New Zealand Law Society was at that time a second respondent to the appeal.The respondent did not oppose the deferral so long as Mr McGuire paid security forcosts before the due date for filing the case on appeal and applying for the hearingdate.[7] On 17 May 2019, the Registrar granted a deferral to 29 May 2019 and advisedMr McGuire that this date was "three days prior to the r 43 deadline of 4 June 2019".1 Court of Appeal (Civil) Rules 2005, r 37(2).2 McGuire v Secretary for Justice [2019] NZHC 42.[8] On 31 May 2019, Mr McGuire filed the case on appeal and paid the schedulingfee. He did not pay security for costs and the appeal was deemed to have beenabandoned on 5 June 2019, three months after it was brought.[9] In the meantime, on 28 May 2019, Mr McGuire advised the Registrar that heintended to apply for a review of her decision on security for costs and he calculatedthat he had until 17 June 2019 to do so. On 14 June 2019, Mr McGuire wrote, forthe attention of "[t]he Duty Judge", advising that he wished "to question"the Registrar's decision dated 17 May 2019. Mr McGuire sought an order thatsecurity for costs be paid when he filed his submissions for the appeal. Alternatively,he asked the Court to consider whether "staggered payments" could be made. TheRegistrar treated this letter as an application for review of her decision and she referredit to a judge.[10] The Judge disagreed with the Registrar's characterisation of Mr McGuire'sletter. The Judge considered Mr McGuire was not seeking a review of the Registrar'sdecision but was instead seeking a further deferral of the time to pay security for costs.The Judge therefore directed that this application be dealt with by the Registrar.[11] The Registrar wrote to Mr McGuire on 15 July 2019 advising that the appealwas treated as having been abandoned, effective on 5 June 2019, because noapplication for a hearing date had been made prior to that date.[12] Mr McGuire filed a memorandum the following day, 16 July 2019, claimingthat his letter of 14 June 2019 was an application for a review of the Registrar'sdecision concerning deferral of security for costs and accordingly rr 43(1A) and43(1B) were engaged. The deemed abandonment under r 43(1) is subject to anysuspension or extension of time granted under r 43(1B). Rule 43(1B)(c) enablesthe Registrar to suspend the application of r 43 for periods of up to one month at a timeif a review of a Registrar's decision on an application under r 35(6) has yet to bedetermined. Rule 35(6)(d) deals with the Registrar's power to defer the date by whichsecurity must be paid.[13] On 17 July 2019, the Registrar responded to Mr McGuire stating that hisapplication of 25 March 2019 was for a deferral pursuant to r 35(6)(d) but it was notan application under r 43(1B) for suspension of the three-month time limit.Mr McGuire applied for a review of that decision. This application was declinedon 29 July 2019.3[14] Mr McGuire filed the present application for an extension of time on 7 August2019.Submissions[15] Mr McGuire says the case is important to him. He claims there is no prejudiceto the respondent from the delay, which was the result of a misunderstanding.He thought his appeal remained alive pending the determination of his applicationbrought on 14 June 2019, which he had signalled on 28 May 2019, concerning the datefor payment of security for costs.[16] Ms Williams, for the respondent, submits there is no credible explanation forthe delay. She argues that Mr McGuire is simply seeking to prolong the legal processfor as long as possible to avoid payment of his debts to the respondent. Ms Williamscontends there is material prejudice to the respondent because this proceeding isdelaying insolvency proceedings that have been brought against Mr McGuire.She also argues the appeal is effectively moot. Even if the appeal succeeded, no usefulremedy could be granted because it concerns Mr McGuire's application for legal aidapproval in 2015. There would be no point in the respondent reconsidering hisdecision because any assessment under the Legal Services (Quality Assurance)Regulations 2011 must be current. Rather, Mr McGuire needs to make a freshapplication and provide current information about his experience and other relevantmatters.3 McGuire v Secretary for Justice [2019] NZCA 341.Decision[17] Mr McGuire has a right of appeal against the High Court judgment. He clearlywishes to exercise that right and has proceeded with reasonable diligence since filinghis notice of appeal. His intended appeal is not so clearly hopeless that it would beappropriate to dismiss it summarily. Mr McGuire has explained the reasons forthe delay, which is comparatively short. We accept the delay was caused by a genuinemisunderstanding. We are not persuaded the respondent will suffer any real prejudiceif the appeal is allowed to proceed, particularly given the very short extension of timesought. We consider the course most consistent with justice is to grant an extensionof time to allow the appeal to be determined on its merits.Result[18] The application under r 43 of the Court of Appeal (Civil) Rules 2005 foran extension of time to apply for a hearing date is granted.[19] Mr McGuire must pay security for costs in the sum of $6,600 and apply fora hearing date within five working days of the date of this judgment.[20] We make no order for costs.Solicitors:Crown Law Office, Wellington for Respondent.