[1] The respondent seeks an order pursuant to s 37 of the Court of Appeal (Civil Rules) 2005 striking out the appeal filed in this Court on 9 January 2006 on the basis that Mr Reihana has failed to pay security for costs.

Factual background

[2] The appeal is against a decision of Harrison J delivered in the High Court at Rotorua on 12 December 2005 striking out proceedings for judicial review on the basis that an amended Statement of Claim was plainly “defective” as “fatally it does not identify a decision taken in accordance with the statutory power which is reviewable”.
[3] The Registrar of this Court fixed security for costs at $4,300.00. On 9 February 2006 the appellant applied to the Registrar for a reduction or dispensation of security for costs. On 6 March 2006 the Registrar refused that application. Mr Reihana subsequently sought to review the Registrar’s decision on the basis that in previous appeals which he had filed, both in the Court of Appeal and the High Court, the Registrars had made orders reducing the sum payable for security. This is comprehensively covered in Mr Reihana’s memorandum dated 13 March 2005.
[4] In a Minute issued by Robertson J on 27 March 2006, this Court declined to vary the amount of security and confirmed the Registrar’s decision.
[5] In terms of the Rules, security accordingly was required to be paid 20 days after the decision upholding the Registrar’s refusal, namely by 27 April 2006.
[6] No security has been paid up to the present time. Mr Reihana’s position is reiterated in a Memorandum dated 5 June 2006 which we have considered.

The respondent’s submission

[7] It was argued that this appeal should be struck out pursuant to s 37(1) for the following reasons:

(a) the appellant has been afforded an opportunity to apply for dispensation of security and then seek review of the Registrar’s decision;

(b) the appellant has had ample opportunity to pay security for costs following Robertson J’s decision and has failed to do so;
(c) the appellant has given no indication that he intends or is able to pay security for costs;
(d) both Harrison and Robertson JJ, in their respective decisions, concluded that the review application and subsequent appeal were “fatally flawed” and did not disclose a reviewable statutory power of decision; and,
(e) the appeal is hopeless and as such the respondent should not be put to the cost of preparing a case in opposition without the protection of security for costs having been paid by the appellant.

Discussion

[8] Rule 37 of the Court of Appeal (Civil) Rules 2005 provides:

Consequences of failure to comply with requirement to pay security for costs

(1) The Court may, on application, make an order striking out an appeal if security for costs is not paid by the time payment is due.

(2) The appellant may not apply for the allocation of a hearing date under r 38(1) if the appellant is in default of any obligation to pay security for costs.
[9] On the basis of the information available, it appears that this is a case of an impecunious litigant pursuing an appeal that has no realistic possibility of success. In those circumstances the respondent should not be put to the costs of preparing a case in opposition without a protection of security for costs having been paid by the appellant.

Result

[10] In all the circumstances, we are satisfied that the appeal should be struck out and an order is made accordingly.

Solicitors:
Crown Law Office, Wellington

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