DORRANCE v LINKPEOPLE LTD [2023] NZHC 1597

DORRANCE v LINKPEOPLE LTD [2023] NZHC 1597 [26 June 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2022-409-592[2023] NZHC 1597BETWEEN MARISHA ELIZABETH DORRANCEAppellantAND LINKPEOPLE LIMITEDRespondentHearing: 15 May 2023 (by way of telephone conference)Appearances: Appellant - In PersonK A Lomas for RespondentJudgment: 26 June 2023JUDGMENT OF EATON J(On an application to Dispense with Security for Costs)This judgment was delivered by me on 26 June 2023 at 2.30 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] On 19 November 2019, Ms Dorrance brought a claim in the Tenancy Tribunalagainst Linkpeople Ltd (Linkpeople). On 28 February 2022, that claim was struck outby an adjudicator of the Tenancy Tribunal. Ms Dorrance filed an appeal in the DistrictCourt against that decision. At a case management conference held on 13 September2022, Judge Gilbert ordered Ms Dorrance pay security for costs on the appeal in thesum of $955. Ms Dorrance then filed an appeal in this Court against the security forcosts decision.[2] Case management conferences were held in this Court on 13 February 2023before Dunningham J, and on 3 April 2023 before Harland J. Ms Dorrance is self-represented. Her application for the appointment of amicus curiae has been declined.Her application to dispense with security for costs on this appeal requiresdetermination.[3] Ms Dorrance has filed an affidavit as to her financial means. BothMs Dorrance and Mr Lomas have filed fulsome submissions. A hearing wasconducted at a telephone conference on 15 May 2023.Legal principles[4] Pursuant to r 20.13(2) of the High Court Rules 2016, a Judge must fix securityfor costs at the case management conference relating to the appeal unless the Judgeconsiders that in the interests of justice no security is required. That rule doesnot apply to an appeal for which an appellant has been granted legal aid under theLegal Services Act 2011.1[5] There is a presumption that, unless the appellant is legally aided, they will berequired to pay security for costs in case the appeal is unsuccessful. For a standardappeal, being a Category 2 case with an estimated half-day hearing time required,security would be $1,195. Costs may be waived. It is for the appellant to show thatwaiver is in the interests of justice. In RIG v Chief Executive of the Ministry of Social1 High Court Rules 2016, r 20.13(1).Development, the Court of Appeal confirmed that impecuniosity of itself does notjustify a waiver but may provide a reason to reduce the quantum of security.2Exceptional circumstances are required to justify a waiver. The Court shall haveregard to the importance of the issues raised and the public interest in those issuesbeing determined. Ultimately, if the Court considers there to be an arguable case onappeal, a waiver may be granted to an impecunious litigant. The Supreme Court onappeal endorsed those principles.3[6] In Reekie v Attorney-General, the Supreme Court found that applications todispense with security are usually made on two broad grounds:4(a) where costs are unlikely to be ordered against an appellant in any event;or(b) where an appellant either cannot pay or will suffer severe hardship ifpayment is required.[7] In Reekie, the Court recognised that the presumption in favour of an appellantproviding security for costs imposes some discipline on appellants and discourageslitigation which is disproportionate to the occasion.5 The Court further recognised thatan appellant who will not be able to meet a subsequent order for costs is free of theconstraints that affect other litigants, and that freedom carries with it the potential forinjustice to a respondent.6 The Court confirmed that it is for the appellant to showimpecuniosity and/or establish exceptional circumstances.7Analysis[8] Ms Dorrance does not claim to be legally aided. She therefore carries the onusof establishing that a waiver of security for costs is in the interests of justice. If a2 RIG v Chief Executive of the Ministry of Social Development [2010] NZCA 370, (2010) 20 PRNZ703.3 G v Chief Executive of the Ministry of Social Development [2010] NZSC 141, (2010) 20 PRNZ705.4 Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [19].5 Above n 4, at [33].6 Above n 4, at [33].7 Above n 4, at [27].waiver is not granted, Ms Dorrance will be required to pay the sum of $1,195 assecurity for costs.[9] Ms Dorrance says she is impecunious and that her appeals against both thedecision of the Tenancy Tribunal and Judge Gilbert have merit. I deal with bothsubmissions.Impecuniosity[10] Ms Dorrance deposes that her only source of income is a supported livingpayment from the Ministry of Social Development (MSD) in the sum of $255.68 aweek. She says MSD assessed her medical/disability costs in 2020 as being "around$150 per week". She deposes to a monthly phone cost of $25, monthly child supportcosts of $20, and regular storage costs.[11] I accept Ms Dorrance's evidence that she is impecunious and that as aconsequence, if she is required to pay security for costs on this appeal, in reality shewill not be in a position to pursue the appeal and will consequentially have to pay thesecurity of $955 as ordered in the District Court.Merit[12] In determining whether to require Ms Dorrance to pay security for costs, theJudge recorded Ms Dorrance had not applied for legal aid in relation to the DistrictCourt appeal. The Judge referred to r 18.13 of the District Court Rules providing that,on appeal, security for costs is required to be paid by the appellant unless the Judgeconsiders that it is in the interests of justice for that requirement to be waived. TheJudge recorded Ms Dorrance's submission that she was "of limited means" and herassertion that her appeal had a strong prospect of success. With reference to authority,the Judge observed that security was the norm and exceptional circumstances aregenerally required to justify a waiver. The Judge weighed the importance of the issuesraised and any public interest as relevant factors and that impecuniosity of itself wouldnot justify a waiver but may be a reason to reduce the quantum of security.[13] Judge Gilbert was not persuaded the appeal engaged any matter of publicimportance, given the decision to strike out the proceedings in the Tenancy Tribunalwas made on the grounds of repetitive delays by Ms Dorrance to comply withtimetabling orders and other requirements imposed by the Tribunal. The Judgeexpressed his disagreement with Ms Dorrance's assessment that her appeal was"almost certain to succeed".[14] Judge Gilbert accepted Ms Dorrance had limited means. He reduced theamount of security payable by half and extended the time for paying security to twomonths.[15] Ms Dorrance submits the Judge was wrong to rely on the District Court Rules.That submission is without merit.[16] Ms Dorrance submits the respondent's counsel breached his duties to the Courtin not putting all information, said by Ms Dorrance to be "relevant and significantlaw", before the Judge. That submission is also without merit. The default position issecurity must be fixed and paid. The onus was on Ms Dorrance to persuade the Judgeto dispense with security. Counsel for the respondent was under no obligation toadvance legal submissions.[17] Next, Ms Dorrance alleged procedural unfairness. She submits the Judgeshould have convened an interlocutory hearing or, alternatively, consideredsubmissions and evidence on the papers. But, Ms Dorrance knew security for costswas to be addressed at the case management conference, and it was appropriate thatthe Judge dealt with the issue at the conference.[18] Ms Dorrance alleges the Registrar changed the format for the case managementconference and that those changes caused her anxiety and distress. She says the Judgestopped her from addressing the merits of her appeal. I do not accept there was anyunfairness to Ms Dorrance. It is clear from the decision of the Judge that he heard andconsidered the submissions advanced by Ms Dorrance.[19] Ms Dorrance takes issue with the Judge having regard to "the proceduralhistory of this matter" in determining whether Ms Dorrance should pay security. Idisagree. The procedural history, as summarised in the Tribunal decision under appeal,was relevant. That history is a matter of record and features multiple adjournmentsand extensions to accommodate Ms Dorrance over a prolonged period. The inevitableconsequence has been cost to the respondent. Those circumstances are relevant to theassessment of security on an appeal.[20] Finally, Ms Dorrance takes issue with the Judge referring to her as havingpreviously practised as a lawyer. That reference was made in relation to theshortcomings within her grounds of appeal. The Judge did not consider Ms Dorrance'sformer career in fixing security.[21] I am not persuaded the appeal against the decision of Judge Gilbert has merit.[22] Because the parties advanced submissions as to the merit of the appeal againstthe Tribunal decision, I briefly deal with that issue.[23] Ms Dorrance's application was filed in the Tenancy Tribunal in November2019. It was struck out on 28 February 2022 on the grounds of delay and abuse ofprocess. Both the landlord and Ms Dorrance had filed submissions on the strikeoutapplication. The Tribunal found it had "bent over backwards" to allow Ms Dorranceto properly plead her case and that her repeated requests for adjournments andextensions of times gave rise to an abuse of process.[24] I have reviewed the evidence of James Gallen filed in the District Court andsummarising the various procedural steps of the Tenancy Tribunal proceeding. Byway of summary, the Tenancy Tribunal application had hearing dates of 18 November2019, 21 February 2020, 20 July 2020, 9 September 2020, 22 October 2020,4 November 2020, 23 November 2020, 3 February 2021, 8 April 2021, 24 June 2021,12 August 2021, and 2 December 2021.[25] Mr Gallen deposes that on 29 October 2021, Ms Dorrance's revised claim wasdue. That was not filed, but Ms Dorrance filed yet another application for anadjournment of the hearing. On 1 February 2022, Mr Gallen filed an application tostrike out the proceedings. Ms Dorrance responded in writing, and, on 28 February2022, the Tenancy Tribunal adjudicator struck out the claim.[26] I acknowledge that on 23 November 2020, the hearing was adjourned, and onthat occasion the respondent had applied for permission to brief legal counsel havingregard to the complexity of the proceeding and the volume of material filed byMs Dorrance. Mr Gallen says Ms Dorrance had filed a large amount of material,including submissions running to 73 pages. Otherwise, Ms Dorrance was seeking theadjournments and extensions.[27] That history demonstrates that the manner in which Ms Dorrance hasconducted her claim against the respondent to date has inevitably given rise to muchunnecessary cost. Having reviewed the original and amended notices of appeal filedin the District Court, it is very likely the pattern of overly complicated, unnecessarilytime-consuming and costly litigation will continue.[28] I accept the submission made by Mr Lomas that the respondent has been putto unnecessary and disproportionate costs and is entitled to a level of protection againsta wide-ranging claim brought by a litigant who chooses to self-represent.[29] Ms Dorrance has not persuaded me she has an arguable case on appeal.Notwithstanding Ms Dorrance's impecuniosity, I am not persuaded that it isappropriate to waive security for costs on this appeal.Result[30] Ms Dorrance is to pay security for costs on this appeal in the sum of $1,195.Security is to be paid on or before 20 July 2023. If security is not paid by that date,the respondent may apply for an order dismissing the appeal.[31] If security is paid as directed, I will make further case management directionson the papers....................................................Eaton JSolicitors:Braun Bond & Lomas Ltd, HamiltonCopy to:Appellant – Ms Dorrance