JUDITH ANNE MCKEOWN V CANTERBURY DISTRICT HEALTH BOARD COA CA47/2011

JUDITH ANNE MCKEOWN V CANTERBURY DISTRICT HEALTH BOARD COA CA47/2011 24 February 2012IN THE COURT OF APPEAL OF NEW ZEALANDCA47/2011[2012] NZCA 39BETWEEN JUDITH ANNE MCKEOWNAppellantAND CANTERBURY DISTRICT HEALTHBOARDRespondentHearing: 24 February 2012 (By telephone)Counsel: J Moss for AppellantP White for RespondentJudgment: 24 February 2012 at 3:30 PMJUDGMENT OF O'REGAN PThe application for review of the decision of the Acting Registrar refusing to dispense with security for costs for the present appeal is allowed. An order is made dispensing with security._______________________________________________________________REASONSIntroduction[1] This appeal is to be heard next Thursday, 1 March 2012. It involves a question relating to the application of the Limitation Act in the context of Bill of Rights litigation. This judgment deals with the appellant's application to review thedecision of the Acting Registrar refusing to dispense with security for costs.[2] Counsel for the appellant sought a dispensation from the requirement to pay security in the sum of $5,560 on 15 February 2012. However, the application wasnot dealt with because there was an indication that counsel would seek legal aid, which would render it redundant. For reasons which I need not go into, legal aid was not ultimately sought and counsel for the appellant is proposing to argue the appeal on a pro bono basis. There was then a misunderstanding as to whether security was being sought.[3] The upshot of that combination of factors is that the application for dispensation of security was dealt with only on 21 February 2012. It was declined.[4] I heard from counsel by telephone this morning and heard argument on theappellant's request for a review of the decision to refuse dispensation.[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.1 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.2 Impecuniosity alone is not usually sufficient to justify a waiver, but it may be a reason to reduce the amount of securities.3[6] In the present case counsel for the respondent argues that the ultimate claim made by the appellant has little chance of success, and argues that the respondent should not face ongoing proceedings. Counsel for the appellant argues that the issue on appeal in this case is arguable, and says that there is a public interest in the claim being pursued. He says the appellant has no means to pay security of the magnitude required.[7] The present application is unusual because it comes before me at a time when the fixture has already been granted, the case on appeal has been filed and submissions have been prepared. Thus the bulk of the costs to be incurred by the respondent have already been incurred. Normally this would not arise because a1 Fava v Zaghloul [2007] NZCA 498 at [9].2 Creser v Official Assignee CA196/05, 12 June 2006 at [29].3 Fava v Zaghloul [2007] NZCA 498 at [9].fixture would not be allocated until issues relating to legal aid and security for costs had been resolved.[8] I consider that the point to be argued on the appeal is arguable. I also consider that there are exceptional circumstances in the sense that the question of security for costs has only come to a head at a very late stage in the proceedings where a significant proportion of the costs likely to be incurred by the respondent have already been incurred. The circumstances are such that a degree of pragmatism is required.[9] I conclude therefore that, in the unusual circumstances of this case, a waiver of security is appropriate. I make it clear, however, that this should not be seen as an indication that waiver would be appropriate if the appeal succeeds and the matter reverts to the High Court for trial. Any decision in relation to waiver at that stage will need to take into account the merits of the overall claim, in contrast to the present situation where the assessment relates to the merits of the narrow point on appeal.[10] I therefore grant the review of the Registrar's decision and dispense withsecurity for costs in relation to this appeal.Solicitors:gca Lawyers, Christchurch for Appellant