Corbett v Legal Complaints Review Officer [2011] NZCA 223 (27 May 2011)

Last Updated: 2 June 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA435/2010 [2011] NZCA 223

BETWEEN JOHN HILLARY CORBETT Appellant

AND LEGAL COMPLAINTS REVIEW OFFICER Respondent

Court: Arnold, Stevens and Wild JJ

Counsel: Appellant in Person P Gunn for Respondent

Judgment: 27 May 2011 at 10.00 am

(On the papers)

JUDGMENT OF THE COURT

1. The application by the respondent for an order striking out the appeal for failure to comply with requirement to pay security for costs is granted. Appeal struck out.
2. The appellant must pay the respondent’s costs on a standard application on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT
(Given by Stevens J)

Introduction

[1] The appellant, John Corbett, filed a notice of appeal on 8 July 2010 against a judgment of Duffy J given on 11 June 2010[1] in which she dismissed an application for recall of her judgment dated 31 August 2009.[2] In the latter judgment, the Judge had struck out two judicial review proceedings in which the appellant sought to review two separate decisions by different Legal Complaints Review Officers. These related to separate complaints by the appellant against two legal practitioners, each of whom had given advice to, and prepared wills for, the deceased parents of the appellant. The Judge observed in the strike out judgment that “[t]here is a striking similarity between each set of proceedings”.[3] Hence, she dealt with both (strike out) applications in the one judgment.
[2] Although the notice of appeal was not filed until 8 July 2010, it seems that the appellant was seeking to appeal against both the recall judgment and the strike out judgment. We will treat the notice of appeal as applying to both judgments as nothing now turns on the point.
[3] On 5 April 2011 the respondent filed an application under r 37(1) of the Court of Appeal (Civil) Rules 2005 (the CA Rules) to strike out this appeal as the appellant has failed to pay security for costs. But the position is complicated by the fact that, when the security for costs matter was finally determined, on 9 February 2011,[4] Mr Corbett was in default of his obligation to file a case on appeal and apply for allocation of a hearing date under the CA Rules. He had, however, within the time allowed for under r 43(1), applied for an extension of time for filing the case on appeal and allocating a hearing date. This judgment will deal with the first of those applications. If it is successful, his application under r 43(1) is redundant.
[4] The applications were scheduled for hearing on 17 May 2011. The day before the hearing, the appellant advised the Registrar that he would be unable to attend the hearing for health reasons. He filed a written memorandum of submissions summarising the arguments he wished the Court to consider. As a result of the memorandum, Arnold J directed that the appeal should now be dealt with on the papers.[5]

Some further background

[5] The appellant’s fundamental grievance is that his sister received a greater share of his deceased parents’ estates than he did. For this outcome he blames the two solicitors who provided legal services, including the preparation of wills, to his late parents.[6] The appellant made complaints to the Auckland District Law Society. Following an assessment by the Standards Committee to take no action in respect of the two complaints, the relevant legal complaints review officers found that the solicitors’ conduct was appropriate and blameless.[7]
[6] The appellant then filed separate applications for judicial review in the High Court challenging these two decisions. The respondents in each case applied to strike out the proceedings. Given the similar nature of the proceedings, Duffy J dealt with them together and struck out both proceedings. The Judge found that neither pleading disclosed any arguable cause of action. The appellant had not referred to anything, other than to the factual findings of the two legal complaints review officers, that might found a recognised basis for judicial review.[8]
[7] The Judge also considered that the pleadings were unnecessary prolix and mostly unintelligible. Hence they were likely to cause prejudice or delay in terms of r 15.1(1)(b) of the High Court Rules (the HC Rules) and could be described as frivolous and vexatious in terms of r 15.1(1)(c) of the HC Rules.[9] The Judge said that this was not a case where the appellant should be given an opportunity to replead his case because there was nothing about the case which suggested that the appellant would be able to fashion his complaints about the decisions of the legal complaints review officers into recognisable grounds for judicial review.[10]
[8] The appellant then filed two applications for recall of the judgment of Duffy J. In the recall judgment, the Judge dismissed the application. The arguments raised by the appellant on the recall application were essentially the same as had been raised in the judicial review proceedings.[11] The Judge observed:[12]

[The appellant] is not only seeking to revisit determinations made in the judgment striking out his judicial review proceeding, but he is essentially attempting to re-litigate the very issues he raised unsuccessfully with the respondent, and which the respondent found to be baseless. This is an abuse of process.

[9] The appellant then filed a notice of appeal in this Court challenging (it seems) the decisions of Duffy J in both the recall judgment and the strike out judgment. On 2 August 2010, the appellant applied for a waiver of the requirement to pay security for costs. By way of a letter dated 11 November 2010, the Registrar informed the appellant that his application to have security dispensed with was declined.[13] But in recognition of the appellant’s financial circumstances, the Registrar reduced the amount of security from $5,560 to $4,170. In response to correspondence from the appellant, the Registrar, on 19 November 2010, explained that dispensation could not be given on the basis of the appellant’s financial position alone except in exceptional circumstances. The appellant had failed to show such exceptional circumstances.
[10] The appellant then applied to have the Registrar’s decision reviewed. Randerson J dismissed the application.[14] He ordered the appellant to pay to the Registrar security for costs in relation to the appeal in the sum of $4,170 on or before 1 March 2011.[15] Importantly, Randerson J accepted the respondent’s submissions, finding that:[16]

... the issues raised were neither novel nor important; [the appellant’s] attempt to challenge the substance of the decisions of the Legal Complaints Review Officers was misguided; no new issues were raised in the notice of appeal; the notice of appeal did not identify any recognisable legal grounds of appeal; there was little or no public interest in having the issues determined and the likelihood of success was very low.

[11] On 9 February the Registry sent email correspondence to the appellant enclosing the judgment for the review of the setting of the security for costs. On 14 February 2011 Randerson J issued a minute in response to a request from the appellant for a further extension of time to pay security. The Judge refused to grant such an extension. On 1 March 2011 Randerson J issued a further minute, reiterating that security had to be paid by 1 March. Despite having received notification of both minutes, the appellant has not paid the security for costs.

Submissions of the parties

[12] The respondent submits that this appeal should be struck out under r 37 of the CA Rules for failure to comply with the order of a Judge of this Court that he pay the sum ordered for security for costs by 1 March 2011.
[13] With respect to the failure to pay security for costs, the respondent submits that the appellant should not be granted the indulgence of a further extension of time by this Court declining to strike out the appeal. The respondent also submits that the appeal lacks merit. The notice of appeal replicates allegations made in the High Court, as do various documents subsequently filed by the appellant in the Court of Appeal in relation to this appeal. The respondent also submits that the notice of appeal is prolix and mostly unintelligible. The respondent thus seeks to bring finality to the proceedings, noting that Duffy J held that, if the appellant had a reasonably arguable cause of action in judicial review, the strike out of the proceeding (and, by extension, this appeal) would not bar him from bringing fresh proceedings.[17]
[14] For the appellant, the documentation filed appears to make two main arguments as to why this appeal should not be struck out. First, he believes strongly in the merits of his case. He considers that he has been treated most unfairly by a number of people, including members of the legal profession and the judiciary. The appellant’s second argument is that he should have been allowed a waiver of security for costs. To this end he points out that he is a WINZ beneficiary, indicating that he has few financial resources.
[15] The appellant’s memorandum dated 16 May 2011 emphasises that his substantive proceedings are necessary to achieve justice against the two professionals who advised his parents. He also refers to the need to have “full and better discovery”. He refers to certain documents that he claims may assist his cases and enhance the prospects of success. Like earlier documentation, much of what is written is largely incomprehensible.

Our evaluation

[16] The short point is that the appellant has not paid the security for costs as ordered by Randerson J in the judgment referred to at [10] above. Despite two reminders that payment of security for costs must be made by 1 March 2011, the appellant has not complied with the order of this Court.
[17] The inevitable consequence is that the appeal should be struck out. We so order.
[18] We also comment briefly on the merits. The two proceedings in question against the two Legal Complaints Review Officers are brought as applications for judicial review. The applicant in each case is required to identify the relevant statutory power of decision to be reviewed and then bring the respective claims under traditional judicial review grounds, properly supported by pleaded errors or breach. We are satisfied that the appellant has not done so. We consider that the appellant is seeking, by way of judicial review, to reargue the factual basis in respect of which he was unsuccessful in each case. The Legal Complaints Review Officers, in each case, found his claims to be baseless.
[19] In this context we note the assessment of Randerson J when he commented on the merits of the appeal in the context of considering the security for costs issue.[18] Importantly Randerson J accepted that the notice of appeal did not identify any recognisable legal grounds for appeal. We agree. We are satisfied that this appeal is meritless and has no prospects of success.
[20] As the appeal is struck out under r 37 of the CA Rules, there is no need to consider the application for extension under r 43.

Result

[21] The appeal is struck out. The respondent is entitled to costs for a standard application on a band A and usual disbursements.

Solicitors:
Crown Law Office, Wellington for Respondent

---

[1] Corbett v Legal Complaints Review Officer HC Auckland CIV-2009-404-3063, 11 June 2010 [the recall judgment].

[2] Corbett v Legal Complaints Review Officer HC Auckland CIV-2009-404-3063, 31 August 2009 [the strike out judgment].
[3] At [1].

[4] Corbett v Legal Complaints Review Officer [2011] NZCA 5 (judgment of Randerson J dismissing the appellant’s application to review the decision of the Registrar fixing security for costs).
[5] Minute of Arnold J dated 16 May 2011.
[6] See the strike out judgment, at [13].
[7] At [14].
[8] At [16].
[9] At [19].
[10] At [20].
[11] The recall judgment, at [11].
[12] At [12].
[13] Under r 35(6)(c) of the Court of Appeal (Civil) Rules 2005.
[14] Corbett v Legal Complaints Review Officer [2011] NZCA 5.
[15] At [9].
[16] At [7].
[17] The strike out judgment, at [20].
[18] Referred to at [10] above.