Skelton v Bird [2016] NZCA 49 (7 March 2016)

Last Updated: 17 March 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA681/2015 [2016] NZCA 49
BETWEEN	BEVIN HALL SKELTON Applicant
AND	CHARLES HENRY BIRD Respondent

Counsel:	Applicant in person Respondent in person
Judgment: (On the papers)	7 March 2016 at 12 pm

JUDGMENT OF COOPER J

The respondent’s application to review the Registrar’s decision granting a waiver of the filing fee for the applicant’s application for leave to appeal is dismissed.
____________________________________________________________________

REASONS

[1] The parties, once respectively solicitor and client, have been engaged in protracted litigation over various issues flowing from events occurring in July 2002 when Mr Bird advanced $450,000 to Mr Skelton secured over a property in Bayswater, Auckland. Further advances were subsequently made, and Mr Skelton made various payments in reduction of the amounts owing, but a dispute arose as to the outstanding balance.
[2] Eventually, Mr Bird commenced a proceeding in the District Court seeking to recover money that he claimed Mr Skelton still owed him. Mr Skelton failed to bring a counter-claim in time so commenced a related proceeding seeking to recover money that he claimed he had overpaid on the loan. Mr Skelton applied for an order transferring the proceedings from the District Court to the High Court. On 23 December 2014, Judge Blackie dismissed the transfer application.^[1]
[3] On 10 March 2015, Judge Harrison entered judgment against Mr Skelton for $35,000 (plus 10.5 per cent interest per annum), which he found was the balance then outstanding.^[2] Mr Skelton appealed against both Judge Blackie’s refusal of the transfer application, and Judge Harrison’s decision resolving the substantive claim.
[4] Both appeals were heard in the High Court by Brewer J on 23 June 2015 and dismissed the following day.^[3] Subsequently, on 2 November 2015 he declined an application made by Mr Skelton for leave to appeal to this Court.^[4]
[5] Mr Skelton now seeks leave for a second appeal from this Court, under s 67(2) of the Judicature Act 1908. He applied to the Registrar for waiver of the fee of $1,100 payable on the filing of his application for leave under the Court of Appeal Fees Regulations 2001 (the Regulations). He claimed he was unable to pay the fee. His application said that he had not been granted legal aid and that he was wholly dependent on New Zealand superannuation for the payment of his living expenses. This was to rely on one of the specific heads of inability to pay the fee referred to in reg 5(3) of the Regulations.
[6] The Registrar wrote to Mr Skelton on 4 December 2015 asking him to provide proof of his entitlement to New Zealand superannuation. Ultimately, the Registrar was satisfied that Mr Skelton was unable to pay the fee and on 11 January 2016 granted the waiver.
[7] In anticipation of the fee being waived, Mr Bird filed memorandum electronically on 15 December 2015 seeking to challenge that decision. After giving his summary of the background to the litigation, Mr Bird made various allegations against Mr Skelton. It is clear from the memorandum and other correspondence that has been received by the Registrar that Mr Bird regards Mr Skelton as a vexatious litigant. It is against that background that he has purported to seek a review of the Registrar’s decision to waive the filing fee. In his application, Mr Bird essentially asserts that the power to waive fees under reg 5 is discretionary, and that it ought not to have been exercised in Mr Skelton’s favour in the present case because of the essentially unmeritorious nature of the proposed appeal.
[8] The Registrar’s decision cannot be challenged on this basis. While reg 5 says that the Registrar “may waive the fee payable by the applicant” if satisfied of various matters, the fee waiver jurisdiction ought not to be exercised on the basis that the Registrar will herself form some view of the merits of the claim before deciding whether or not to waive the fee. It is clear from the wording of the regulation that the relevant criteria revolve around the applicant’s ability to pay the fee.
[9] Regulations 5(2) and (3) provide as follows:

5 Power to waive fees

...

(2) The Registrar may waive the fee payable by the applicant if satisfied,—

(a) on the basis of one of the criteria specified in subclause (3), that the applicant is unable to pay the fee; or

(b) that the proceeding,—

(i) on the basis of one of the criteria specified in subclause (4), concerns a matter of genuine public interest; and

(ii) is unlikely to be commenced or continued unless the fee is waived.

(3) For the purposes of these regulations, an applicant is unable to pay the fee sought to be waived if—

(a) the applicant has been granted legal aid in respect of the matter for which the fee is payable; or

(b) the applicant has not been granted legal aid in respect of the matter for which the fee is payable and the applicant—

(i) is dependent for the payment of his or her living expenses on a benefit of a kind specified in any of paragraphs (a) to (e), (h), and (j) of the definition of income-tested benefit in section (3)(1) of the Social Security Act 1964; or

(ii) is wholly dependent for the payment of his or her living expenses on New Zealand superannuation under the New Zealand Superannuation and Retirement Income Act 2001 or a veteran’s pension under the Veterans’ Support Act 2014; or

(iii) would otherwise suffer undue financial hardship if he or she paid the fee.

[10] As can be seen, regs 5(3)(b)(i) and (ii) refer to particular kinds of benefits and pensions; reg 5(3)(b)(iii) refers to “undue financial hardship”. There is no suggestion in these provisions, or elsewhere in the Regulations, that the decision on whether or not to grant the waiver can be made on some assessment by the Registrar of the merits of the proposed appeal. That is a matter for the Court in deciding whether or not leave should be granted.
[11] Much of the material that has passed between the parties is relevant to that second issue, that is to say, whether leave should be granted to appeal. But it is premature to embark upon an inquiry into those issues at this stage.
[12] None of the material that has been received from Mr Bird would justify a different conclusion from that reached by the Registrar on the fee waiver issue. Consequently, Mr Bird’s application must be dismissed.
[13] I add that the above discussion assumes in Mr Bird’s favour that a proposed respondent to a second appeal can be heard on the question of whether or not the applicant for leave should have a fee waiver. In fact there is no right for Mr Bird to be heard in that context, nor is he a “person who is aggrieved” for the purposes of s 100B(1) of the Judicature Act 1908. I have nevertheless dealt with the matter, pointing out the reasons why, substantively, Mr Bird’s application could not succeed even if properly made.
[14] The application for leave to appeal should now be scheduled for hearing without delay. Material already filed that is relevant to that application can be taken into account for the purposes of that application. If the parties wish to file anything further in relation to the application they must do so:

• (a) in the case of Mr Skelton by 16 March 2016; and
• (b) in the case of Mr Bird by 31 March 2016.

[15] If satisfied the matter is ready for hearing the Registrar should then set the application down for hearing in the next available miscellaneous applications list.

---

^[1] Skelton v Bird DC Manukau CIV-2011-092-3862, 23 December 2014.

^[2] Bird v Skelton DC Manukau CIV-2011-092-3862, 10 March 2015.

^[3] Skelton v Bird [2015] NZHC 1434.

^[4] Skelton v Bird [2015] NZHC 2697.