MOIR v IHC NEW ZEALAND INC [2018] NZCA 130

MOIR v IHC NEW ZEALAND INC [2018] NZCA 130 [30 April 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA570/2017[2018] NZCA 130BETWEEN JULIE MOIRApplicantAND IHC NEW ZEALAND INCORPORATEDFirst RespondentAND PAUL WILSONSecond RespondentHearing: 11 April 2018Court: Gilbert, Dobson and Toogood JJCounsel: A C Beck for ApplicantL M Hansen as counsel to assist the CourtJudgment: 30 April 2018 at 2.30 pmJUDGMENT OF THE COURTThe application for leave to appeal is dismissed____________________________________________________________________REASONS OF THE COURT(Given by Toogood J)Introduction[1] Julie Moir applies under s 56(5) of the Senior Courts Act 2016 for leave toappeal a decision of Mallon J in the High Court at Wellington given by a Minute dated20 June 2017 ("the June decision")1.[2] Although IHC New Zealand Inc and a Mr Wilson are cited as respondents inthe appeal, that is only because it arises from a procedural decision made bythe Registrar of the High Court at Wellington in connection with a proceeding in whichthey are the respondents. They are not affected by the matters at issue and have takenno part in the appeal. For that reason, Ms Hansen was appointed as counsel to assistthe Court by presenting independent submissions on the matters of law which we havebeen asked to address. We are grateful for her assistance.[3] The history of procedural decisions made by Mallon J in the High Court isrelevant to an understanding of the issue on appeal:(a) On 26 May 2017, the Judge issued a judgment ("the May judgment")holding that the Registrar was entitled to decide not to waive paymentof the filing fee in a judicial review proceeding brought by Ms Moir inwhich IHC New Zealand Inc and another are the respondents.2(b) In the June decision, Mallon J refused an application under r 7.49(1) ofthe High Court Rules 2016 to rescind the May judgment.(c) In a judgment delivered on 8 September 2017 ("the September leavejudgment"), the Judge refused an application by Ms Moirunder s 56(3) of the Senior Courts Act for leave to appealthe June decision.31 Moir v IHC NZ Inc HC Wellington CIV-2017-485-463, 20 June 2017.2 Moir v IHC NZ Inc HC Wellington CIV-2017-485-463, 26 May 2017.3 Moir v IHC NZ Inc [2017] NZHC 2189.Background[4] To explain the background of the application before the Court, we draw onMallon J's useful summary in the September leave judgment:4(a) On 27 April 2017, Ms Moir filed a notice of proceeding and statementof claim. The notice of proceeding, signed by Ms Moir's counsel, statedin the accompanying memorandum that the plaintiff has been grantedlegal aid.(b) At the same time, Ms Moir applied, on a Ministry of Justice form, fora waiver of the $540 filing fee. The basis for this application was shehad been granted legal aid. The form asked Ms Moir to attach a copyof the letter from the Legal Services Agency granting legal aid. A copyof the letter was not attached to Ms Moir's application.(c) On 2 May 2017, Ms Moir's counsel corresponded by email with theRegistrar over the requirement to provide the letter. He relied on s 24of the Legal Services Act 2011 which requires the provider under agrant of legal aid to notify every other party to the proceeding and theRegistrar of the grant. Counsel said this notice was given in the noticeof proceeding. He confirmed in his email that legal aid had beengranted. Counsel also asserted there was no requirement to provide theletter from the Legal Services Agency and noted this was a privilegeddocument. He argued that the Ministry's fee waiver form could notrequire what the legislation does not and asked for the matter to bereferred to the registry officer's manager. This was done and on 15 May2017 the Registrar (and Court Manager) repeated the requirement for acopy of the letter to be provided in accordance with the form.(d) On 16 May 2017, Ms Moir sought review of the Registrar's decisionby a Judge. This application was dismissed in the May judgment.4 Moir v IHC NZ Inc [2017] NZHC 2189 at [2].(e) On 1 June 2017, Ms Moir applied for an order rescinding theMay judgment. That application was dismissed in the June decision.(f) On 17 July 2017, Ms Moir applied for leave to appeal to this Courtagainst the June decision. That application was dismissed inthe September leave judgment.Grants of leave by this Court to hear interlocutory appeals from the High Court[5] This Court's jurisdiction to hear an appeal from any order or decision ofthe High Court made on an interlocutory application in respect of any civil proceedingmay be exercised only if leave to appeal is given by the High Court5 or by the leaveof this Court granted under s 56(5) where the High Court has refused leave.[6] Neither the Senior Courts Act nor the Court of Appeal (Civil) Rules 2005prescribe any criteria for the grant of leave to appeal against an interlocutory decisionof the High Court, and we are unaware of any case in which this Court has consideredthe criteria for leave under s 56(5). Counsel did not cite any. The leave that is soughtin this case is essentially leave to bring a second appeal against the Registrar'sdecision. By analogy with decisions under s 67 of the Judicature Act 1908, theforerunner to s 56, we consider leave should not be granted unless the proposed appealraises some question of law or fact capable of bona fide and serious argument in a caseinvolving some interest, public or private, of sufficient importance to outweigh thecost and delay of the appeal. Moreover, leave should not be granted unless theproposed appeal has some reasonable prospect of success.6 That requiresconsideration of the merits of the proposed appeal.The grounds for leave in this case[7] Rule 17 of the Court of Appeal (Civil) Rules provides that an application tothis Court for leave to appeal must state the specific grounds of the appeal and whythe Court should grant leave. The grounds on which leave is sought in this case reflectthe usual considerations in leave applications:5 Senior Courts Act 2016, s 56(3).6 Snee v Snee (1999) 13 PRNZ 609 (CA) at [15], Waller v Hider [1998] 1 NZLR 412 (CA) at 413.(a) The decision of the High Court raises an important question ofprinciple; namely, whether the Registrar can disregard advice given bya legal aid provider that legal aid has been granted.(b) The issue goes beyond the circumstances of the present case, and raisesquestions of the operation of the legal aid scheme and the integrity ofcounsel.(c) It is seriously arguable that the decision of the High Court failed toaddress the questions before it and the conclusion it came to is clearlywrong.(d) The High Court did not provide adequate reasons to justify its decisionand, in particular, the Court failed to address "the fundamental questionin issue, namely whether the Registrar could properly conclude thatlegal aid had not been granted".[8] Mr Beck also argues in support of leave that the issues raised in the case"are of significant concern to the legal profession". He does not provide any supportfor that proposition, however, other than to say that leave may be justified where adecision reflects on reputation7 and that the view adopted by the High Court:(a) means that the Registrar "can effectively disregard the advice of alegal aid provider to the effect that legal aid has been granted"; and(b) undermines the fundamental relationship between legal practitionersand the Court.[9] Strictly speaking, the application now before this Court is confined to thenarrow issue of whether leave to appeal the June decision (not to rescindthe May judgment) should be granted. The purpose of the leave application, however,is to enable Ms Moir to invite this Court to find that Mallon J erred in her substantiveruling in the May judgment that the Registrar was entitled to decide not to waive7 NZ Sports Drug Agency v Bray (2000) 14 PRNZ 702.payment of the filing fee because Ms Moir had failed to comply with the requirementsof the approved form. Since the substantive issue was addressed by counsel in theirwritten submissions and oral argument, we are in a position to consider whether thereis sufficient merit in the proposed challenge to Mallon J's decision on the fee waiverto justify a grant of leave. In doing so, we have regard to the reasons given bythe Judge in both the May judgment and the September leave judgment.The proposed challenge to the Registrar's refusal to waive the filing fee[10] Put simply, the argument Mr Beck would advance if leave to appeal wasgranted is this:(a) Regulation 18(1) of the High Court Fees Regulations 2013("the Fees Regulations") provides that a person may apply to theRegistrar of a court for a waiver of a fee payable in connection with aproceeding or intended proceeding in the court.(b) Regulation 18(2) provides that the Registrar may waive a fee"if satisfied on the basis of one of the criteria specified in regulation19, that the person is unable to pay the fee".(c) One of the criteria in reg 19 is that, "the person has been grantedlegal aid in respect of the matter for which the fee is payable".(d) Where a lawyer has complied with the obligation under s 24 of theLegal Services Act 2011 to notify every other party to the proceedingand the Registrar that legal aid has been granted, by notice set out inthe notice of proceeding filed with a statement of claim, such noticeoperates for all purposes.(e) It follows that, notwithstanding the provisions of reg 18(3) of theFees Regulations, the Registrar is required to accept the lawyer's noticeof the legal aid grant under s 24 of the Legal Services Act as proof thatthe party for whom the lawyer acts is a person unable to pay the filingfee for the purposes of a waiver application under the Fees Regulations.[11] Contrary to Mr Beck's submission, we do not agree that the fundamentalquestion in issue is whether the Registrar could properly conclude that legal aid hadnot been granted. The essential issue is whether the Registrar was entitled to insist oncompliance with the requirements of the approved form.Discussion[12] Mr Beck did not argue that regs 18 or 19 of the Fees Regulations, or the formapproved by the chief executive for the purposes of reg 19, were invalid.[13] The form approved by the chief executive which was used by Ms Moir inmaking her application for waiver required her to indicate, by marking the appropriatebox, that she had been granted legal aid to file her application for judicial review.She did that. The form required her also to attach a copy of the letter from theLegal Services Agency granting her legal aid. She did not do that. Mr Beck'sargument is that, notwithstanding the requirements of the approved form, the Registrarwas not permitted to require Ms Moir to provide a copy of the letter from the Agencybecause proof of the grant of legal aid had already been given to the Registrar and theother parties by her counsel in the notice under s 24 of the Legal Services Act.[14] The short answer to Mr Beck's submission is that it is based on the falsepremise that notice under s 24 of the Legal Services Act is binding on the Registrarfor the purposes of a waiver under the Fees Regulations. As Mr Beck himselfacknowledged in his submissions, the legal aid provider's obligation to provide noticeunder s 24 of the Legal Services Act is separate from the obligation of the partypersonally to provide proof of a grant of legal aid for the purposes of the fee waiver.The principal purpose of the statutory requirement under s 24 is to notify the otherparty or parties to the proceeding of the grant of legal aid because of the costsimplications, both as to any provision of security for costs or for the purposes of themaking of any costs order on the disposition of the proceeding. Bare notice of thegrant from a third party is sufficient for that purpose. When s 24 notice is provided tothe Registrar, no decision is made nor any other step taken as a consequence; the noticemerely informs the Court of the position.[15] Acceptance of Mr Beck's submission would mean that, in any case where alawyer has certified under s 24 of the Legal Services Act that legal aid has beengranted, the Registrar may not enforce the requirement in the fee waiver form that theapplicant shall attach a copy of the letter from the Legal Services Agency confirmingthe grant. If that was right, the regulation might have been expected to say so.[16] More fundamentally, a finding that the Registrar is not entitled to requireprovision of the letter in accordance with the approved form would be contrary to theplain wording of reg 18(3) of the Fees Regulations. It requires that an application forwaiver of a filing fee: must be made in a form approved for the purpose by the chief executive ofthe Ministry of Justice unless, in a particular case, the Registrar considers thatan application in that form is not necessary.[17] It is the regulation, by means of the approved form, that requires the applicantto provide a copy of the letter approving legal aid unless the Registrar decides to waivecompliance. The Registrar may waive that or any other requirement contained withinthe form if it is unnecessary to insist on compliance. That may be becausethe Registrar is satisfied on other grounds that legal aid has been granted.For example, where the s 24 notice to the Court and the other parties attached a copyof the letter of grant or other evidence satisfying the Registrar that the grant had beenmade.[18] As Mr Beck argued, it is not a purpose of the form approved underthe Fees Regulations to provide for the notice required to be given to the Court andother parties under s 24 of the Legal Services Act. The requirement to attach a copyof the letter of grant to the waiver application is to enable the Registrar, without furtherinquiry, to determine that the applicant qualifies for a fee waiver as a person who"is unable to pay the fee sought to be waived".8 The letter is sent to the aided person.It is he or she (not their lawyer) who is required to complete the waiver application8 High Court Fees Regulations 2013, reg 19(a).form and attaching a copy of the letter of grant is not an onerous requirement. It is thebest evidence that the applicant cannot pay the filing fee.[19] We accept Mr Beck's submission that members of the legal profession areofficers of the Court and that they are usually taken at their word. But it does notfollow that requiring an applicant for a fee waiver to provide a letter proving a grantof legal aid undermines the fundamental relationship of trust between legalpractitioners and the Court. The Registrar's decision to insist on compliance with theapproved form does not denigrate the profession; it amounts merely to the Registrarproperly requiring adherence to a routine statutory requirement that is personal tothe applicant and cannot be discharged by his or her lawyer.[20] Because the grant of legal aid may be subject to conditions, the Registrar isentitled to insist on receiving a copy of the letter to ensure that the grant properlyrelates to the proceeding in respect of which the filing fee would otherwise be payable.Further, the letter itself provides adequate proof, for audit purposes, that the Registrarwas justified in waiving payment of a fee when the Registrar would otherwise be undera duty to it collect on behalf of the Ministry.[21] Mr Beck explained that letters from the Legal Services Agency advisinglitigants of a grant of legal aid may contain references to the proceeding and the meritsof the litigant's case. Conditions attached to the grant may be personal and private.Mr Beck argued that an applicant for a waiver should not be required to disclose suchinformation. In such a case, however, there is no reason why irrelevant or confidentialmaterial which the applicant does not wish the Court or other parties to see cannot beredacted from the copy provided.[22] We are satisfied that Mallon J correctly upheld the right of the Registrar toinsist on compliance with the requirements of the approved form. It follows that theproposed appeal for which leave is sought would not succeed.Result[23] The application for leave to appeal is dismissed.Solicitors:Peter Sara Lawyer, Dunedin for Applicant