EDWARDS V WELLINGTON REGIONAL COUNCIL COA CA176/2011

EDWARDS V WELLINGTON REGIONAL COUNCIL COA CA176/2011 [7 March 2012]IN THE COURT OF APPEAL OF NEW ZEALANDCA176/2011CA284/2011[2012] NZCA 72BETWEEN JOHN ANTHONY EDWARDSApplicantAND WELLINGTON REGIONAL COUNCILRespondentCounsel: Applicant in personJ W Tizard for RespondentJudgment: 7 March 2012 at 12.30 p.m.JUDGMENT OF ARNOLD JThe applications for review of the Deputy Registrar's decisions to decline towaive the requirement for the payment of setting down fees in CA176/2011 and CA284/2011 are dismissed. A setting down fee of $2248.89 in respect of each appeal must be paid into the Court within 20 working days of the date of this judgment.____________________________________________________________________REASONSIntroduction[1] The applicant, Mr Edwards, filed two appeals and applied for a waiver of the requirement to pay a setting down fee in respect of each.1 The Deputy Registrar declined his applications. Mr Edwards has applied for a review of those decisions.21 Court of Appeal Fees Regulations 2001, reg 5(1).2 Judicature Act 1908, s 100B.Background[2] Mr Edwards filed a proceeding in the High Court against the Wellington Regional Council (the Council), challenging the validity of its plans to reconstruct the TeMarua lakes, which provide water to the Wellington region. The Council applied to have the proceeding struck out as disclosing no arguable or tenable cause of action. Ronald Young J declined to strike out the proceeding in a judgment dated 11 March 2011 (the stay decision).3 However, he ordered a stay of proceedings to give Mr Ewards the opportunity to file a statement of claim containing pleadings that were adequate to enable the Council to respond. He directed that Mr Edwards obtain the leave of a judge to file the further statement of claim.[3] Mr Edwards filed an appeal against the stay decision in this Court on 28 March 2011 (CA176/2011). The notice of appeal asks that this Court set aside the stay decision in its entirety and grant an interim injunction to prevent the Council from taking any further action to raise the TeMarua lakes.[4] On 25 February 2011, before the stay decision was issued but after Mr Edwards had become aware of its effect, Mr Edwards instituted a further proceeding against the Council by filing a second statement of claim in the High Court. The Council applied to strike out that proceeding as well. In a judgment dated 3 May 2011, Gendall J granted the strike out application on the basis that the proceeding was an abuse of process.4 The relief claimed in that proceeding was essentially the same as that sought in the stayed proceeding, which was by that point the subject of an appeal to this Court. If the appeal succeeded, the first proceeding would no longer be stayed, thus rendering the second proceeding otiose. If the first proceeding remained stayed, it would be inappropriate to allow the second, virtually identical proceeding to continue.[5] Mr Edwards filed an appeal against Gendall J's decision on 9 May 2011(CA284/2011). The grounds relied on in the notice of appeal go to the merits of the issues raised in the statement of claim in the second proceeding. The notice of3 Edwards v Wellington Regional Council HC Wellington CIV-2010-485-2192, 11 March 2011.4 Edwards v Wellington Regional Council HC Wellington CIV-2011-485-329, 3 May 2011.appeal does not allege that Gendall J erred in holding that the second proceeding was an abuse of process, nor does it raise any points that provide support for such a claim.[6] Mr Edwards was required to pay a setting down fee of $2248.89 in respect of each appeal. He applied to the Registrar for waiver of those fees.The Deputy Registrar's decisions[7] The Deputy Registrar declined both applications for waiver in two letters dated 27 May 2011, on the basis that the appeals did not involve matters of genuine public interest or which would affect a substantial portion of the general public. The Deputy Registrar required payment of the setting down fee for each appeal within 20 working days.[8] Mr Edwards then applied for reviews of the Deputy Registrar's decisions by a single Judge of the Court. Although the applications were both filed on 20 June 2011, they were, inadvertently, not referred to me for consideration until 6 December 2011.Legal Principles[9] Under reg 5(2) of the Court of Appeal Fees Regulations 2001 (the Regulations), the Registrar may waive the relevant fee if he or she is satisfied that the applicant is unable to pay the fee for various reasons associated with impecuniosity, or the appeal concerns a matter of genuine public interest which is unlikely to be commenced or continued unless the fee is waived. Mr Edwards does not say that he cannot afford to pay the setting down fees. Rather, he relies on the public interest ground.[10] The Regulations deal with what constitutes a matter of genuine public interest. Regulation 5(4) provides:(4) For the purposes of these regulations, a proceeding that concerns a matter of genuine public interest is –(a) a proceeding that has been or is intended to be commenced to determine a question of law that is of significant interest to the public or to a substantial section of the public; or(b) a proceeding that –(i) raises issues of significant interest to the public or to a substantial section of the public; and(ii) is an appeal against a judgment, decree, or order given or made in a proceeding commenced by an organisation that, by its governing enactment, constitution, or rules, is expressly or by necessary implication required to promote matters in the public interest.Discussion[11] I consider that, in terms of the Regulations, the Deputy Registrar was right to require the payment of a setting down fee in respect of each appeal. While it might be thought that the payment of a single setting down fee is appropriate, given that the two appeals are so interrelated that they will inevitably be heard together, the Regulations do not make provision for waiver on that ground.[12] It is important to recall what is at issue in the present appeals. In CA176/2011, the appellant is not being prevented from bringing the underlying proceeding in relation to the TeMarua lakes, about which he has expressed concern for some years. Although the proceeding has been stayed, this is to give him the opportunity to file an amended claim, properly pleaded. In CA284/2011, the claim was struck out because it was essentially identical to the stayed claim. Accordingly, it was an abuse of process.[13] At present, then, Mr Edwards is unable to advance his underlying claim until he repleads it in proper form. If he does replead it adequately, he will be able to proceed. While the underlying proceeding, if properly pleaded, may raise matters of public interest, the present appeals do not. Rather, they are procedural in nature. For this reason, I consider that the Deputy Registrar was right to refuse to waive the fees.Decision[14] The applications for review of the Deputy Registrar's decisions to decline to waive the requirement for the payment of setting down fees in CA176/2011 and CA284/2011 are dismissed. A setting down fee of $2248.89 in respect of each appeal must be paid into the Court within 20 working days of the date of this judgment.Solicitors:Oakley Moran, Wellington for Respondent