MOIR v IHC NEW ZEALAND INC [2018] NZCA 48

MOIR v IHC NEW ZEALAND INC [2018] NZCA 48 [14 March 2018]IN THE COURT OF APPEAL OF NEW ZEALANDCA570/2017[2018] NZCA 48BETWEEN JULIE MOIRApplicantAND IHC NEW ZEALAND INCORPORATEDFirst RespondentPAUL WILSONSecond RespondentCounsel: A C Beck for ApplicantJudgment:(On the papers)14 March 2018 at 11.00 amJUDGMENT OF FRENCH J(Review of Registrar's decision)The application for a review of the Registrar's decision refusing to grant a refundof the filing fee is declined.____________________________________________________________________REASONS[1] Ms Moir seeks a refund of the filing fee of $1,100 paid to this Court at the timeshe filed her application for special leave to appeal. She seeks the refund on the groundof undue hardship and on the ground the proposed appeal involves a matter of genuinepublic interest.1 The Registrar declined to grant a refund and Ms Moir now seeks areview of that decision.1 The second ground is not advanced in the formal application for a refund signed by Ms Moir. Itwas raised in a covering letter from her counsel and the Registrar was prepared to address it.[2] The proposed appeal itself concerns an issue about payment of filing fees inthe High Court. When Ms Moir's lawyer, Mr Beck, filed the substantive proceedingsin the High Court on her behalf in April 2017, he sought waiver of the filing fee. Hedid so on the ground Ms Moir had been granted legal aid. The High Court Registryinformed him waiver would not be granted without a letter from theLegal Services Agency confirming Ms Moir was legally aided. Mr Beck refused toprovide the letter and sought review of the Registry's decision. Justice Mallonconsidered the matter and declined the application for review.2 The Judge held theRegistry was entitled to insist on the letter, a view she confirmed in a subsequentminute declining a further application by Mr Beck to rescind her judgment.3 The filingfee was then paid and Mr Beck applied for leave to appeal to this Court.4[3] The filing fee in this Court was paid on 3 October 2017. The application forleave and the substantive appeal have since been set down for an oral hearing on11 April 2018.[4] An application for refund of fees is governed by regs 8 and 5 of theCourt of Appeal Fees Regulations 2001. The combined effect of those regulations inthe circumstances of this case are that three prerequisites must be satisfied before arefund can be granted as follows:(a) No application for a waiver has been made. That is satisfied in thiscase.(b) Ms Moir has either suffered financial hardship as a result of paying thefee or the proposed appeal is a matter of genuine public interest.(c) The application for leave and proposed appeal was unlikely to continueunless the fee had been waived and is unlikely to continue unless it isrefunded.2 Moir v IHC New Zealand Inc CIV-2017-485-463, 26 May 2017.3 Moir v IHC New Zealand Inc CIV-2017-485-463, 20 June 2017.4 Under s 56 of the Senior Courts Act 2016, Mallon J having declined to grant leave in Moir v IHCNew Zealand Inc CIV-2017-485-463, 8 September 2017.[5] In written submissions, Mr Beck says he is acting pro bono on the proposedappeal. He says further that "[b]ecause of deadlines, the filing fee was advanced on[Ms Moir's] behalf on the understanding that she would apply for a waiver." Mr Becksubmits it was unrealistic for the Registrar to find Ms Moir would not suffer unduehardship, that her financial position is that of a person living from hand to mouth, thatshe has been assessed by the Legal Services Agency as in need of state assistance, thatthere should not be differing standards as between the High Court and theCourt of Appeal and that the High Court has granted a waiver on the grounds ofinability to pay. I assume by this last submission it is meant the High Court wouldhave granted waiver, but for the argument over the letter.[6] I do not accept these arguments. In her application, Ms Moir says the effect ofhaving to pay the fee is that she would not be able to pay her basic household expenses.However, as the Registrar noted, although Ms Moir may be financially stretched, herincome does cover her living expenses. She has a small amount of debt but thisamount is exceeded by her savings. She also has modest assets.[7] Without being provided with any information as to the basis on which Ms Moirwas granted legal aid for the purposes of the High Court hearing in early 2017 and theassessment done by the Legal Services Agency at that time, I do not attach thesignificance to the fact of her having been granted legal aid that Mr Beck would haveme attach.[8] I am prepared to accept for the sake of argument that the proposed appeal mayinvolve a matter of genuine public interest as defined in reg 5. The Registrar alsoaccepted this but went on to find that the third prerequisite was not satisfied becausethere was no evidence that at the time the application for leave was filed Ms Moir wasunlikely to continue with the appeal.[9] That evidence from Ms Moir is still not available. Mr Beck asserts it isinevitable the appeal will not proceed but that is all it is, an assertion. The doggeddetermination with which the issue has been pursued and Ms Moir's ability to pay thefee suggests otherwise.[10] I therefore agree with the Registrar's decision and decline the application forreview.Solicitors:P J Sara, Dunedin for Applicant