KELLY ALEXANDRA ROE v NEW ZEALAND VICE-CHANCELLORS COMMITTEE [2021] NZSC 158 [15 November 2021]

KELLY ALEXANDRA ROE v NEW ZEALAND VICE-CHANCELLORS COMMITTEE [2021] NZSC 158[15 November 2021]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 111/2021[2021] NZSC 158BETWEEN KELLY ALEXANDRA ROEApplicantAND NEW ZEALAND VICE-CHANCELLORSCOMMITTEERespondentSC 106/2021BETWEEN KELLY ALEXANDRA ROEApplicantAND UNIVERSITY OF AUCKLANDRespondentSC 109/2021BETWEEN KELLY ALEXANDRA ROEApplicantAND AUCKLAND DISTRICT HEALTHBOARDRespondentCourt: William Young, Glazebrook and O'Regan JJCounsel: Applicant in personT D Smith and E G Ricketts for Respondent in SC 111/2021I Rosic and Z A Brentnall for Respondent in SC 106/2021A J F Perkins QC for Respondent in SC 109/2021Judgment: 15 November 2021JUDGMENT OF THE COURTA The applications for leave to appeal are dismissed.B The applicant is to pay costs of $2,500 to each of therespondents.____________________________________________________________________REASONS[1] The applicant has filed three applications for leave to appeal against decisionsof Judges in the Court of Appeal. There is some interconnection between two of theapplications and some commonalities to all three. So it is convenient to deal with themin a single judgment.Roe v New Zealand Vice-Chancellors Committee – the dispute[2] This litigation arises out of Ms Roe's complaint that the University of Waikatodid not appropriately deal with a Master of Philosophy thesis which she submitted inOctober 2018 and later re-submitted in revised form in February 2019. This complaintwas made to the New Zealand Vice-Chancellors Committee. Its chief executiveconcluded that the complaint did not warrant further investigation of the University'sconduct. Ms Roe's application for judicial review (which did not seek reconsiderationof the decision under review but rather orders to remove the chief executive fromoffice) was dismissed.1 She appealed to the Court of Appeal. In issue aretwo judgments of Brown J: one upholding the decision of the Deputy-Registrar not towaive fees,2 and the other upholding the decision of the Deputy-Registrar not todispense with security for costs.3Roe v University of Auckland – the dispute[3] Ms Roe unsuccessfully sought judicial review of the refusals of the Universityof Auckland to enrol her in its MBChB programme for 2019 and 2020.4 She appealedto the Court of Appeal. In issue now is the judgment of Miller J dismissing herapplication to review the decision of the Deputy-Registrar not to waive security forcosts in relation to the appeal.51 Roe v New Zealand Vice-Chancellors Committee [2021] NZHC 719 (Isac J).2 Roe v New Zealand Vice-Chancellors Committee [2021] NZCA 420 [CA fee waiver judgment].3 Roe v New Zealand Vice-Chancellors Committee [2021] NZCA 437 [CA security judgment].4 Roe v University of Auckland [2021] NZHC 368 (Fitzgerald J).5 Roe v University of Auckland [2021] NZCA 423.Roe v Auckland District Health Board – the dispute[4] Ms Roe is a plaintiff in proceedings in the High Court against the AucklandDistrict Health Board and certain of its personnel in respect of events which occurredin September 2020. Amongst the relief she sought is the removal from office of theBoard's chief executive and the most senior of the clinicians involved in the incident.An application by the Board to have the proceedings struck out was dealt with byWylie J in the High Court by requiring her to replead her allegations and ordering herto pay costs.6 She purported to appeal against the costs order and in issue now is thejudgment of Clifford J dismissing her application to review a decision of theDeputy-Registrar declining to accept her appeal for filing on the ground that she hadnot first obtained leave to appeal from the High Court as required by s 56(3) of theSenior Courts Act 2016.7Commonalities and interconnection[5] The three applications involve very particular litigation where the underlyingdisputes are personal to Ms Roe and do not raise issues of general or publicimportance. None of the appeals which Ms Roe wishes to pursue have obvious merit.And all applications for leave to appeal deal with process issues.[6] There is a factual connection between these cases as Ms Roe's claim to entryinto the MBChB programme at Auckland might be thought to depend largely on herability to successfully challenge the University of Waikato's withholding from her ofthe degree which she sought (Master of Philosophy). This is not in issue in Roe vNew Zealand Vice-Chancellors Committee, but we note that there was also a separatejudicial review proceeding brought by the applicant against the University of Waikato,challenging, amongst other issues, the examination of her thesis. This has beendismissed by the High Court.86 Roe v Auckland District Health Board [2021] NZHC 1780; and Roe v Auckland District HealthBoard [2021] NZHC 2162.7 Roe v Auckland District Health Board [2021] NZCA 441.8 Roe v University of Waikato [2021] NZHC 1808.Roe v NZ Vice Chancellors Committee – decision[7] Ms Roe's application to review the decision not to grant a fee waiver was dealtwith by Brown J in accordance with reg 5(2)(b) and (4) of the Court of Appeal FeesRegulations 2001. He concluded that she had not made out her contention that theappeal satisfied reg 5(4)(a)9 (and she did not challenge the Deputy-Registrar's findingthat it did not satisfy reg 5(4)(b)10). In concluding that security for costs should notbe waived, he addressed himself appropriately to Reekie v Attorney-General.11[8] Ms Roe's application for leave to appeal appears to be principally directed tonon-waiver of security for costs, albeit that she suggests that she also qualified for afee waiver under reg 5(2)(a) and (3)(b)(i). She says that she did not advance thatargument before Brown J because she recognised that she would have to address themerits of the proposed appeal in relation to waiver of security for costs.[9] Treating her application as extending to both judgments, we are of the viewthat the proposed appeal does not involve issues of general or public importance andthere is no appearance of a miscarriage of justice.12[10] The application for leave to appeal is accordingly dismissed.Roe v University of Auckland – decision[11] In determining Ms Roe's application to review the decision of theDeputy-Registrar not to dispense with security for costs, Miller J correctly addressedhimself to the principles established in Reekie.13 His conclusion that a reasonablesolvent litigant would not prosecute the appeal appears to be unassailable. It followsthat there is no issue of general or public importance raised by the proposed appealand no appearance of a miscarriage of justice.149 CA fee waiver judgment, above n 2, at [16].10 At [8].11 CA security judgment, above n 3, at [12] and [19]; and Reekie v Attorney-General [2014] NZSC63, [2014] 1 NZLR 737.12 Senior Courts Act 2016, s 74(2)(a) and (b).13 Reekie, above n 11.14 Senior Courts Act, s 74(2)(a) and (b).[12] The application for leave to appeal is accordingly dismissed.Roe v Auckland District Health Board – decision[13] As noted, this was an appeal against a costs order, as opposed to an appealagainst a decision striking out the proceeding. Given the wording of s 56(3) of theSenior Courts Act, the conclusion of Clifford J that Ms Roe required leave to appealagainst this costs order was inevitable. For this reason, there would be no point ingranting leave to appeal. This being the case, there is no need to address otherarguments as to jurisdiction advanced by counsel for the Board.[14] The application for leave to appeal is accordingly dismissed.Costs[15] Ms Roe is to pay costs of $2,500 to each of the respondents.Solicitors:Chapman Tripp, Wellington for Respondent in SC 111/2021Gilbert Walker, Auckland for Respondent in SC 106/2021C L Campbell, Auckland District Health Board, Auckland for Respondent in SC 109/2021