MCGUIRE v SECRETARY FOR JUSTICE [2017] NZCA 583

MCGUIRE v SECRETARY FOR JUSTICE [2017] NZCA 583 [12 December 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA118/2017[2017] NZCA 583BETWEEN JEREMY JAMES MCGUIREAppellantAND SECRETARY FOR JUSTICERespondentCounsel: Appellant in personG L Melvin and M J McKillop for RespondentJudgment:(On the papers)12 December 2017 at 10.00 amJUDGMENT OF FRENCH J(Review of Registrar's Decision)A The application for a refund of the filing fee and hearing scheduling fee isdeclined.B The application for an extension of time in which to apply for dispensationof payment of security for costs is granted.C The application for dispensation of payment of security for costs isdeclined.____________________________________________________________________REASONSIntroduction[1] Mr McGuire seeks a refund of the filing fee, scheduling fee and security forcosts paid at the time he filed his appeal or shortly thereafter. He does so on the groundthe appeal involves a matter of general public importance. The Registrar declined hisapplication for a refund and Mr McGuire now seeks a review of that decision.1 Therespondent opposes any refund of the security for costs.[2] The appeal itself concerns a judgment of Cull J in the High Court and, inparticular, Cull J's failure to award Mr McGuire costs in relation to a strike-outapplication which he successfully opposed.2[3] Mr McGuire filed his appeal on 13 March 2017. In support of his appeal, herelied on Brownie Wills v Shrimpton, where it was held that although court costs maynot be awarded to self-represented litigants, lawyers representing themselves are anexception to that rule.3 Brownie Wills was a decision of the permanent Court. On14 June 2017, a divisional Court delivered the decision in Joint Action Funding Ltd vEichelbaum.4 It held the lawyer-litigant exception no longer applies in New Zealandand that accordingly a self-represented lawyer, even one who is successful in aproceeding, is not entitled to costs.[4] On learning of this latter decision, Mr McGuire then requested a full bench offive members of this Court to hear his appeal. That request was granted by Harrison Jon 21 July 2017, Harrison J being satisfied the issue raised by Mr McGuire was of"major significance to other cases" and of "considerable importance to the legalprofession".5[5] Mr McGuire's appeal was duly heard on 15 August 2017 before a panel of fivemembers of the permanent Court. Judgment has not yet been delivered.On 10 November 2017, Mr McGuire filed an application for a refund of the filing fee,1 The Registrar's decision was on 22 November 2017.2 McGuire v Secretary for Justice [2017] NZHC 365.3 Brownie Wills v Shrimpton [1998] 2 NZLR 320 (CA) at 327.4 Joint Action Funding Ltd v Eichelbaum [2017] NZCA 249.5 McGuire v The Secretary for Justice CA118/2017, 21 July 2017 at [3]. At the time, Harrison Jwas Acting President of this Court.scheduling fee and security for costs on the grounds that, as recorded by Harrison J,the appeal involves a matter of general public importance. In a decision dated22 November 2017, the Registrar declined to grant a refund.AnalysisRefund of filing fee ($1,110) and hearing scheduling fee ($2,700)[6] An application for refund of fees is governed by reg 8 of the Court of AppealFees Regulations 2001. Under reg 8, three prerequisites must be satisfied before arefund can be granted. The first is that no application for a waiver of the fee has beenmade. That is satisfied in this case.[7] The second prerequisite is that if an application for waiver had been made, itwould have been granted in accordance with reg 5. Regulation 5(2)(b) relevantlystates that waiver may be granted if the proceeding concerns a matter of genuine publicinterest and is unlikely to be commenced or continued unless the fee is waived.[8] The Registrar found that this second prerequisite was not satisfied because atthe time Mr McGuire's appeal was filed, the rule in Brownie Wills was still good lawand described by Mr McGuire himself as well entrenched. There was therefore nocontroversy and therefore no issue of genuine public interest raised by the appeal. I donot find that reasoning particularly attractive. In my view there is a strong argumentfor saying if there is a public interest factor it always existed as a matter of law. It wasjust not recognised until later. However, it is not necessary for me to reach a concludedview on that point because Mr McGuire's application for a refund must on any viewof it fail at the second limb of reg 5(2)(b). There has never been any suggestion MrMcGuire would not have commenced or continued the appeal unless the fees werewaived.[9] I therefore uphold the Registrar's decision declining to grant Mr McGuire arefund of the filing and hearing scheduling fees.The application for a refund of security for costs ($6,600)[10] Payment of security for costs is governed by the Court of Appeal (Civil) Rules2005. Unlike the Court of Appeal Fees Regulations, the Rules do not contain a specificprovision expressly addressing refund of security for costs once paid. However, Iconsider that to avoid possible injustice the power to dispense with security conferredby r 35(6) should be interpreted to allow refund of an amount already paid. It wouldbe a strange result if fees could be refunded but not security.[11] Under r 35 an application for dispensation must be made within 20 workingdays after the appeal is filed. Mr McGuire's application was filed well outside thattime. The Registrar therefore declined his application on the grounds it was out oftime and she had no power to grant an extension of time.[12] There is no doubt the Registrar was correct to decline the application for wantof jurisdiction. However, as the Registrar also recognised, a judge does have powerto grant an extension of time on review.[13] The respondent opposes security for costs being granted on the grounds thatMr McGuire is out of time, that the issue is not one of public importance and that therespondent has brought bankruptcy proceedings against Mr McGuire in respect ofunpaid costs from earlier proceedings.[14] I am prepared to grant Mr McGuire an extension of time to bring hisapplication to dispense with payment of security for costs. It would be unjust in myview that he should be barred from raising an argument which could not have beenknown by him until well after the expiry of the 20 working day time limit. In my view,the essential question for determination is whether I should dispense with payment(and thus order a refund) on the ground that costs are unlikely to be awarded againstMr McGuire on the appeal.[15] After careful consideration, I have decided it would be inappropriate for me toin effect pre-empt the costs decision of the panel who heard the substantive appeal.Costs on the appeal were in issue before them as well as costs in the High Court. Thepanel is not bound by Harrison J's minute and will need to reach their own assessmentof the public interest and the awarding of costs.[16] If the panel upholds Mr McGuire's appeal, or dismisses the appeal but awardsno costs against him, then the security will be refunded. The Court is currently unableto give a precise date as to when the judgment on the substantive appeal will bedelivered but the time involved will not be such as to cause significant prejudice asregards security to Mr McGuire.Outcome[17] The application for a refund of the filing fee and hearing scheduling fee isdeclined. The application for an extension of time in which to apply for dispensationof payment of security for costs is granted. The application for dispensation ofpayment of security for costs is declined.Solicitors:Jeremy McGuire Lawyer, Palmerston North for AppellantCrown Law Office, Wellington for Respondent