KIRSTY ALICE DE MEYER AND JOHN KENNETH SLAVICH [2023] NZSC 145

KIRSTY ALICE DE MEYER AND JOHN KENNETH SLAVICH [2023] NZSC 145 [1 November 2023]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC UR 31/2023[2023] NZSC 145RE KIRSTY ALICE DE MEYER ANDJOHN KENNETH SLAVICHApplicantsCounsel: Applicants in personJudgment: 1 November 2023JUDGMENT OF GLAZEBROOK JThe application for review of the decision of the Registrar decliningto waive the filling fee is dismissed.___________________________________________________________________REASONS[1] Ms de Meyer and Mr Slavich (the applicants) seek a review of the Registrar'sdecision not to waive the filing fee relating to their application for leave to appeal.1Background[2] The applicants (along with the other defendants in the High Court) have abeneficial interest in the sales proceeds of a farm owned by Nic Slavich Ltd. A disputearose regarding the company accounts. Insight Legal Ltd gave a solicitor'sundertaking to hold the funds of the sale on trust and not to disburse them except byagreement or pursuant to a court order. In 2020, Insight Legal issued proceedings toseek an order that it be released from its undertaking.[3] The applicants originally elected not to participate in the proceeding.However, Ms de Meyer filed a memorandum pre-trial in which she took issue with1 Supreme Court Act 2003, s 40; and Senior Courts Act 2016, s 160.aspects of the proceeding and requested measures to allow the non-participatingdefendants to take a more active role, as well as for the non-participating defendantsto be named as plaintiffs.2 In an interlocutory minute, Katz J granted the applicantsan opportunity to file evidence.3[4] At the hearing of the substantive proceeding, the High Court held that the onlyissue arising out of the pleadings was the narrow issue of whether Insight Legal shouldbe released from its undertaking.4 The Court held that it should not be released.5 Theapplicants applied to recall the High Court judgment which was declined.6[5] The applicants then applied for an extension of time in which to appeal againstthe substantive High Court judgment to the Court of Appeal. The applicants arguedthat they should have been allowed to pursue the issue of an order requiring arbitrationand that Edwards J had failed to comply with Katz J's earlier directions.[6] The Court of Appeal declined the application for an extension of time, findingthat the appeal lacked merit: the High Court had dealt with the only issue that remainedlive on the pleadings.7 The plaintiffs had abandoned the arbitration argument at thehearing and no other party had raised it in a pleading, including the applicants.8 Theapplicants applied to recall the Court of Appeal's decision, which was declined.9Application for leave to appeal[7] The applicants now apply for leave to appeal to this Court. The applicants wishto argue that the Court of Appeal decision breached their rights because the Court didnot deal with the issues that the applicants put to them. They submit that Katz J'sminute meant they did not have to file new pleadings in the High Court.2 Insight Legal Ltd v Slavich HC Auckland CIV-2020-404-2267, 6 December 2021 (Katz J) at[5]–[7]. Katz J treated the memorandum as being on behalf of Ms de Meyer and Mr Slavich:at [5].3 At [10].4 Insight Legal Ltd v Slavich [2022] NZHC 1050 (Edwards J) at [20]–[21].5 At [37].6 Insight Legal Ltd v Slavich [2022] NZHC 1491 (Edwards J).7 De Meyer v Insight Legal Ltd [2023] NZCA 82 (Cooper P and Brown J) at [23] and [25].8 At [24].9 De Meyer v Insight Legal Ltd [2023] NZCA 370 (Cooper P and Brown J).Fee waiver decision[8] The applicants applied for a fee waiver on the basis that the appeal concerns a"matter of genuine public interest" and "is unlikely to be commenced or continuedunless the fee is waived".10[9] The Registrar declined the fee waiver application, on the basis that theproposed appeal would not determine a question of law of significant public interest:the appeal "raises issues specific to the parties, affects only the parties and applies thewell-established legal principles relating to recall and extension of time applications".Application for review[10] The applicants apply for a review of the Registrar's decision on the basis thattheir proposed appeal does concern a matter of genuine public interest. They say thequestions of law are:(a) Whether the Court of Appeal breached the applicants' rights when it didnot deal with an issue properly put to it about the High Court breachingtheir rights;(b) Whether the High Court breached the applicants' rights when it did notdeal with the material they filed in accordance with Katz J's directions;and(c) Whether these alleged breaches are properly remedied in accordancewith Attorney-General v Chapman.11[11] The applicants say that the questions of law are of significant interest to thepublic because every litigant should have the right to have their issue (and evidence)dealt with by the Court of Appeal if properly put to it and by the High Court when10 Supreme Court Fees Regulations 2003, reg 5(2)(b). Sub-regulation (4)(a) specifies that an appealconcerns a matter of genuine public interest when it "has been or is intended to be commenced todetermine a question of law that is of significant interest to the public or to a substantial sectionof the public".11 Attorney-General v Chapman [2012] 1 NZLR 462, [2011] NZSC 110.presented in accordance with a judge's minute. They submit that there is also a publicinterest in this Court dealing with breaches of litigants' rights, without financialrestrictions.My assessment[12] The issues raised by the applicants are entirely fact specific. The issues theywish to raise have no broader implications beyond the parties themselves and do notraise any novel legal principles. The proposed appeal involves the application oforthodox and settled law to their particular circumstances.[13] The proposed appeal therefore raises no questions of law of genuine publicinterest. The Registrar was correct to decline the fee waiver application.Result[14] The application for review of the decision of the Registrar declining to waivethe filing fee is dismissed.