RAFIQ V THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT CA [2013] NZCA 243

RAFIQ V THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT CA [2013] NZCA 243 [20 June 2013]IN THE COURT OF APPEAL OF NEW ZEALANDCA340/2013[2013] NZCA 243BETWEEN RAZDAN RAFIQAppellantAND THE CHIEF EXECUTIVE OF THEMINISTRY OF BUSINESS,INNOVATION AND EMPLOYMENTRespondentCounsel: Appellant in personW N Fotherby and A R Longdill for RespondentJudgment:(On the papers)20 June 2013 at 3.00 pmJUDGMENT OF STEVENS J(Review of Registrar's decision declining to waive filing fee)The application to review the Registrar's decision declining to waive the filing fee is dismissed.____________________________________________________________________REASONSIntroduction[1] The appellant, Razdan Rafiq, has applied to review the Registrar's decisiondeclining to waive the filing fee of $1,087.50. The appeal itself is against a decisionof Priestley J in the High Court ordering the appellant to pay the sum of $6,368 tothe Registrar of the High Court within 20 working days as security for costs.11 Rafiq v The Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC 1134.[2] The application to the Registrar was made under reg 5 of the Court of Appeal Fees Regulations 2001 (the Regulations). I have personally considered theapplication to review the Registrar's decision under s 100B of the Judicature Act1908. I may confirm, modify or revoke the decision of the Registrar as I see fit.2The Registrar's decision[3] The application to the Registrar was filed with the appeal on 29 May 2013. Under reg 5 the Registrar may waive a fee connected with a proceeding if satisfiedthat the appellant is unable to pay the filing fee or the proceeding concerns a matterof genuine public interest and is unlikely to progress unless the fee is waived.3 Theappellant applied for a waiver of the fee only on the basis of an inability to pay thefiling fee. That was appropriate because this appeal does not raise a point of lawconcerning a matter of genuine public interest.[4] On 30 May 2013 the Registrar wrote to the appellant in the following terms:I have considered your application for waiver of the filing fee. I am unable to make a decision on this at present as I require more detailed information on your financial situation. The contents of your declaration states you are self-employed. Please forward to me, by the close of business Friday 7 June 2013 a copy of your last three months bank statements for all bank accounts you hold. I also require you to advise me as to whether you are a beneficiary of any trusts.I have accepted your appeal pending receipt of the further information. The additional information will enable me to further consider your application and determine whether it should be granted. If that information is not received by Friday 7 June 2013 this application will be declined and you will be required to pay the filing fee.[5] No further information on the appellant's financial situation was provided.The passing of the date of 7 June 2013 resulted in the application to waive the filing fee being declined.[6] The appellant has, on 14 June 2013, filed a "Memorandum of the Appellant to Seek Review of Decision of Registrar" which I have considered.2 Judicature Act 1908, ss 61A(3) and 100B(5).3 Court of Appeal Fees Regulations 2001, reg 5(2)(a) and (b).The fee waiver regime[7] The payment of court fees is of importance to the operation of the courts system. Those who make use of the courts are asked to contribute a proportion of the cost of proceedings, so that the burden does not fall entirely on the taxpayer. The mechanism of review by the Registrar and review by a Judge ensures that fees are not set at such a level that access to justice is denied to litigants. One review criterion is raised by this review.[8] The criterion in reg 5(3)(b)(iii) provides that payment of the fee may bewaived on the ground of financial hardship only where it would cause financialhardship which is of such a degree that it is "undue", namely, beyond the ordinary orgreater than what is just and right.4 This is for the appellant to show.5Discussion[9] The memorandum filed in support of the review contains no furtherinformation relating to the appellant's financial position. In particular, no material relating to the appellant's "self-employed" status is provided.[10] I have reviewed the material provided to the Registrar in support of the original application to waive the filing fee. I am satisfied that the Registrar was well justified in giving the appellant a further opportunity to provide relevant information.The appellant had described himself as "self-employed", but there was no indicationof the nature or extent of such employment. No tax returns were supplied. Neither did he provide any accounts for the business or businesses concerned.[11] By not providing sufficient relevant financial information, particularly in support of his review, the appellant has failed to discharge the onus on him of showing that the Registrar fell into error. Certainly, the information on the file does not establish that the appellant will suffer undue financial hardship if required to pay the filing fee.4 Boswell v Millar [2013] NZCA 219 at [6].5 Ibid; New Zealand Cards Ltd v Ramsay [2013] NZCA 72.Result[12] For the reasons set out above, I am satisfied that the Registrar's decision todecline to waive payment of the filing fee of $1,087.50 was correct. I thereforedismiss the application under s 100B of the Judicature Act. The appellant must paythe filing fee to the Registrar in relation to the present appeal if he wishes the appealto proceed.Solicitors:Crown Solicitor, Auckland for Respondent