WOOTTON v WOOTTON [2021] NZCA 243

WOOTTON v WOOTTON [2021] NZCA 243 [10 June 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA600/2020[2021] NZCA 243BETWEEN MARGARET ANN WOOTTONApplicantAND PHILLIP GARRY WOOTTONRespondentCourt: Courtney JCounsel: Applicant in PersonE J Collins for RespondentJudgment: 10 June 2021 at 9.30 amJUDGMENT OF COURTNEY J[Review of Registrar's decision]A The application for review of the Deputy Registrar's decision is granted.B The application for suspension of the time to comply with r 43(1) of the Courtof Appeal (Civil) Rules 2005 is referred back to the Deputy Registrar forreconsideration.____________________________________________________________________REASONS[1] This is a review of a Deputy Registrar's decision declining to grant asuspension of time for complying with r 43 of the Court of Appeal (Civil) Rules 2005.Procedural history[2] On 19 October 2020 Ms Wootton filed a notice of appeal against a decision ofAssociate Judge Johnston.1 She sought to have security for costs dispensed with.A Deputy Registrar suspended the time for complying with r 43(1) pendingdetermination of the application to dispense with security for costs.2 Dispensationwith security for costs was refused. Ms Wootton sought a review of that decision.The Deputy Registrar granted a further suspension of time pending the review.The application for review was unsuccessful.3 The Deputy Registrar advised that r 43would have to be complied with by 19 April 2021.[3] Ms Wootton applied for a further suspension on the ground that she had apending legal aid application.4 The Deputy Registrar granted the suspension. In April2021 Legal Aid Services advised that Ms Wootton had made an application for legalaid in November 2020 and again in April 2021 but that both applications had beenreturned to her because they were incomplete. On 14 May the Deputy Registrarinformed Ms Wootton that since determination of the legal aid application was nolonger pending, no further extension of time to comply with r 43 would be granted.This is the decision under review.Review[4] Ms Wootton asserts that her legal aid application is still on foot and the DeputyRegistrar may therefore grant a further extension. She points to s 16 of the LegalServices Act 2011 which provides that upon an application for legal aid,the Commissioner may either grant legal aid, grant legal aid on an interim basis,request further information or decline the application. Further, the Grants Handbookrelating to legal aid applications advises that incomplete applications will not berejected but will be returned to the provider.5 In these circumstances, Ms Woottonmaintains that there is still a legal aid application on foot and asserts that she iscurrently in communication to progress that application. Separately, she raises the fact1 Wootton v Wootton [2020] NZHC 2684.2 Court of Appeal (Civil) Rules 2005, r 43(1B)(b).3 Wootton v Wootton [2021] NZCA 63.4 Court of Appeal (Civil) Rules, r 43(1B)(a).5 Ministry of Justice Legal Aid Services Grants handbook (May 2021) at 14.that she has had medical appointments to attend to throughout this period, though thisfact does seem to have any relevance to the issue before me.[5] I agree that, on the facts available, Ms Wootton's legal aid application is stillpending. This Court has previously held that a legal aid application is to be treated ashaving been made at the time it is initially filed, even if the application is subsequentlyreturned because it did not provide all the required information.6 The DeputyRegistrar's view that there was no current application was therefore mistaken.[6] I refer the matter back to the Deputy Registrar for reconsideration. In doingso, I note that the decision to grant a suspension when there is a current legal aidapplication is discretionary. Ms Wootton has given no information about what isrequired to advance her legal aid application, nor the expected time frame for doingso. Appellants are expected to advance their appeals diligently. If legal aid is required,they are expected to advance that application diligently. The mere fact that anapplication has been made for legal aid will not necessarily justify a further suspensionbeing granted. Rather, it is for the Deputy Registrar to take into account all the relevantcircumstances in exercising the discretion.Result[7] The application for review of the Deputy Registrar's decision is granted.[8] The application for suspension of the time to comply with r 43(1) is referredback to the Deputy Registrar for reconsideration.Solicitors:Collins & May Law, Lower Hutt for Respondent6 McGreevy v Chief Executive of the Department of Corrections [2019] NZCA 70, (2019) 24 PRNZ585 at [14].