Corbett v Legal Complaints Review Officer [2011] NZCA 5 (9 February 2011)

Last Updated: 16 February 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA435/2010 [2011] NZCA 5

BETWEEN JOHN HILLARY CORBETT Appellant

AND LEGAL COMPLAINTS REVIEW OFFICER Respondent

Counsel: Appellant in person P Gunn for Respondent

Judgment: 9 February 2010

JUDGMENT OF RANDERSON J

The application of the decision to review the Registrar fixing security for costs is dismissed.
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[1] This is an application by the appellant, Mr Corbett, for review of the Registrar’s decision on an application to reduce the amount of security for costs in relation to his appeal to this Court. The application to the Registrar was made under r 35(6) of the Court of Appeal (Civil) Rules 2005. I have personally considered the application to review the Registrar’s decision, and the submissions filed, under r 7(2) of the Rules and s 61A(3) of the Judicature Act 1908.
[2] The appeal is framed as an application for leave to appeal, but an appeal is available as of right since the judgment under appeal is final in nature. In the High Court, Duffy J granted two applications by the respondent to strike out judicial review proceedings brought by Mr Corbett.[1] The Judge described these proceedings as strikingly similar in nature. The proceedings were struck out because they did not disclose any arguable cause of action, were unnecessarily prolix and much of the pleadings were unintelligible. As such, the Judge found that the pleadings were likely to cause prejudice or delay and were frivolous and vexatious in terms r 15.1(1)(b) and (c) of the High Court Rules. The Judge noted that the proceedings essentially sought to contradict factual findings made by the respective respondents and generally to re-litigate the issues on the merits.
[3] In a subsequent judgment on 11 June 2010, the Judge declined an application by Mr Corbett seeking a recall of the judgment on 31 August 2009. The Judge was satisfied there was no basis justifying a recall of the original judgment.
[4] On 11 November 2010 the Registrar of this Court declined Mr Corbett’s application to dispense with security for costs under r 35(6)(c) of the Rules. However, in recognition of Mr Corbett’s financial position, she reduced the amount of security from $5,560.00 to $4,170.00, such sum to be paid within 20 working days from the date of the letter.
[5] In a subsequent letter to Mr Corbett dated 19 November 2010, the Registrar observed that the purpose of setting security was to protect the respondent should the appellant not be successful in the appeal. She noted that dispensation should be given on financial grounds only in exceptional circumstances. The Registrar did not consider any such exceptional circumstances had been shown and noted that the matter was not one of public interest.
[6] Mr Corbett has filed extensive submissions in support of the application to review the Registrar’s decision. These submissions repeat the defects noted by Duffy J in the pleadings filed in the High Court. Apart from reiterating the advice already given to the Registrar that Mr Corbett is a WINZ beneficiary, the submissions addressed the merits of the issues which were before the respective Legal Complaints Review Officers. In that respect, they continue the failure identified by Duffy J in the pleadings. In particular, the submissions fail to recognise the limited grounds upon which judicial review proceedings may be brought and that any such proceedings are not concerned with the merits of the decision under review. As well, the submissions are, to a significant extent, unintelligible and unnecessarily prolix.
[7] For the Crown, Mr Gunn has advised the Court that the application for review is opposed by the respondents. Having regard to the established principles in cases such as Clarke v Watts,[2] Mr Gunn submitted that the Registrar had correctly determined this was not an exceptional case in which the interests of justice required a waiver or further reduction of security for costs; the issues raised were neither novel nor important; Mr Corbett’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 does 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.
[8] Mr Gunn further submitted that impecuniosity does not automatically justify waiver but may warrant a reduction in the amount of security.[3] However, he submitted that the appellant’s financial circumstances had already been appropriately recognised in the Registrar’s decision to reduce the amount of security payable. While accepting that the decision to decline a waiver may render Mr Corbett’s appeal rights nugatory he submitted that, where an appeal is meritless, the respondent should have some protection for its costs.[4]
[9] I accept the submissions made by Mr Gunn in their entirety. For the reasons he submitted, I dismiss the application for review under r 7(2) of the Rules. The appellant, Mr Corbett, must pay to the Registrar security for costs in relation to the appeal in the sum of $4,170.00 on or before 1 March 2011.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] Corbett v Legal Complaints Review Officer HC Auckland CIV-2009-404-3063 and
CIV-2009-404-3700, 31 August 2009.
[2] Clarke v Watts [2010] NZCA 221.
[3] Clarke v Watts at [10]; Easton v Broadcasting Commission [2009] NZCA 252 at [5].
[4] Clarke v Watts at [10].