Reid v Her Majestys New Zealand Government and Tararua District Council [2010] NZCA 11 (16 February 2010)

Last Updated: 2 March 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA345/2008

[2010] NZCA 11

BETWEEN JAMES ROBERT REID
Applicant

AND HER MAJESTY'S NEW ZEALAND GOVERNMENT
First Respondent

AND TARARUA DISTRICT COUNCIL
Second Respondent

Court: O'Regan, Arnold and Baragwanath JJ

Counsel: Applicant in person
J A L Oliver for First Respondent
V T Bruton for Second Respondent

Judgment: 16 February 2010

Reasons: 23 February 2010 at 2.30 pm

JUDGMENT OF THE COURT

1. We grant an extension of time to Mr Reid to pay the amount of the security for costs fixed by the Registrar and upheld after review by Arnold J ($4,740) until 5 pm on Wednesday 17 February 2010.
2. Unless payment is made by bank cheque or otherwise in cleared funds by the deadline set out in A above, the appeal will be struck out.

100. We award indemnity costs and usual disbursements to the second respondent. Counsel for the second respondent should submit a memorandum setting out the amount of those costs and disbursements for approval by the Court within seven days.

4. We award to the first respondent costs for a standard application on a band ‘A’ basis and usual disbursements. Counsel for the first respondent should submit a memorandum to the Court quantifying those costs and disbursements within seven days.
5. We order that, unless the applicant pays the costs and disbursements awarded to the respondents within 30 days after being notified by this Court of the amount payable to each of them, the appeal will be struck out.

____________________________________________________________________

REASONS OF THE COURT

(Given by O’Regan J)

[1] The application by the second respondent, the Tararua District Council (the Council), to strike out the applicant’s appeal came before us in the Miscellaneous Motions list on 16 February 2010. At the conclusion of the hearing we decided not to strike out the appeal immediately, but to give the applicant a chance to pay the security. We issued our judgment immediately and said we would give reasons later. These are those reasons.
[2] The applicant’s appeal is against an interlocutory decision of Miller J in judicial review proceedings brought by the applicant against “Her Majesty’s New Zealand Government” and the Council[1]. Miller J determined that the claim against “Her Majesty’s New Zealand Government” was untenable and made an order removing the Crown as a party and striking out those paragraphs of the statement of claim which related to the Crown. The proceedings are described more fully in an earlier decision of this Court and we will not repeat that description here.[2]
[3] The Registrar fixed security for costs for the appeal at $9,480. The applicant applied for a waiver: this was declined but the Registrar, at the suggestion of the Crown counsel, reduced the security to $4,740. The applicant then sought review of that decision, and this was declined by Arnold J.[3]
[4] The applicant did not pay the security.
[5] Council’s application to strike out the appeal was received by the Court on 13 November 2009. The Council noted that, although the decision of Arnold J confirming the Registrar’s decision as to security was issued on 9 June 2009, the applicant had not made payment. It argued that the last possible day for payment was 20 working days after the decision of Arnold J, 7 July 2009. By a letter dated 11 December 2009, Mr Reid requested a reconsideration of the decision to refuse to dispense with security for costs. There is no jurisdiction for such a reconsideration.
[6] Counsel for the Council, Ms Bruton, argued that the appeal should be struck out for non-payment of security because:

(a) The appeal was filed over 19 months ago and there has been ample opportunity for the applicant to pay security;

(b) The appeal is without merit;

(c) This is one of numerous unmeritorious proceedings being conducted by Mr Reid against the Council.

[7] Counsel for the Crown, Mr Oliver, supported the application. He argued that the appeal was unmeritorious, describing the decision of Miller J to which the appeal related as “unassailable”. He noted also that the notice of appeal also mentions an appeal against directions made by MacKenzie J in a preliminary minute, which Crown counsel argued were not amenable to appeal.
[8] Mr Reid opposed the strike out, but, after questioning from the Bench, indicated that he was able to raise the amount of security and would pay if he was given an opportunity to do so.
[9] In the circumstances we decided that Mr Reid should be given one last chance to meet the security, and we made the orders above, allowing him to do so but providing that the appeal would be struck out if he failed to meet his obligation.
[10] Ms Bruton sought indemnity costs on behalf of the Council and Mr Oliver sought scale costs on behalf of the Crown. We were satisfied that it was appropriate to award indemnity costs in favour of the Council, given that the application was required only because of Mr Reid’s failure to pay the security as directed. His disregard for the Court’s order has put the Council to both expense and inconvenience and we were satisfied that the situation called for an award of indemnity costs in the Council’s favour. The Crown was also required to respond to the application, given that the matter at issue in the appeal was its role in the High Court litigation, and in those circumstances we considered an award of scale costs was appropriate.
[11] Counsel informed us that previous awards of costs have not been paid by the applicant. In those circumstances we considered it appropriate to make an “unless” order: if the costs are not paid by the date specified in the judgment of the Court, the appeal will be struck out.

Solicitors:
Crown Law Office, Wellington for First Respondent
Brookfields, Auckland for Second Respondent

---

[1] Reid v Her Majesty’s New Zealand Government and Tararua District Council HC Wellington (CIV-2008-485-327) 21 May 2008.
[2] Reid v Her Majesty’s New Zealand Government & Anor [2008] NZCA 417 at [1].
[3] Reid v Her Majesty’s New Zealand Government & Anor [2009] NZCA 238.