Clements v Queen of England [2018] NZCA 581 (18 December 2018)

Last Updated: 31 January 2019

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA569/2018 [2018] NZCA 581

	BETWEEN	MIRIAM CLEMENTS Appellant
	AND	QUEEN OF ENGLAND First Respondent PATSY REDDY Second Respondent JACINDA ARDERN Third Respondent NEW ZEALAND GOVERNMENT Fourth Respondent SUBORDINATES TO THE CRIME Fifth Respondents

Counsel:	Appellant in person A L Martin and OJG Upperton for the Respondents
Judgment: (On the papers)	18 December 2018 at 3 pm

JUDGMENT OF FRENCH J

1. The application for review of the Registrar’s decision declining to waive payment of filing fees is declined.
2. The application for review of the Registrar’s decision declining to dispense with payment of security for costs is declined. Security for costs in the sum of $6,600 must be paid by 21 January 2019.

REASONS

Introduction

[1] Ms Clements filed a proceeding in the High Court seeking an order that all 1080 drops be prohibited as well as a range of other associated orders. On the application of the respondents, Woolford J struck out the statement of claim. The Judge held the statement of claim failed to clearly identify what decisions were being challenged and did not identify any clear cause of action or ground of judicial review. The Judge said irrelevant factual material was pleaded and the orders sought were in general outside the Court’s power. He concluded that the claim disclosed no reasonably arguable cause of action and was likely to cause prejudice and delay.^[1]
[2] Ms Clements filed a notice of appeal against that decision in this Court. The notice of appeal can fairly be described as prolix and difficult to follow. Ms Clements also filed an interlocutory application for stay.
[3] Security for costs on the appeal was set at $6,600. Ms Clements applied for an order under r 35(6)(c) of the Court of Appeal (Civil) Rules 2005 dispensing with payment of security. She also sought waiver of the filing fees payable on the notice of appeal and the interlocutory application. In support of the applications, Ms Clements submitted the appeal raised matters of public importance.
[4] The Registrar did not accept that submission and declined the applications. Ms Clements now seeks a review of the Registrar’s decisions.

The applications for waiver of the filing fees

[5] Applications for waiver of filing fees are governed by the Court of Appeal Fees Regulations 2001.
[6] Regulation 5(1) empowers the Registrar to waive payment of a filing fee if satisfied the applicant is unable to pay the fee in question, including a situation where payment would cause undue hardship.^[2] In an email dated 7 November 2018 to the Court, written in response to the Registrar’s decision, Ms Clements asserted she is unable to pay the fees and because of illhealth unable to fundraise. However, it was incumbent on Ms Clements to provide some verification of her financial position,^[3] and she has not done so.
[7] As regards public interest, reg 5(2)(b) limits the Registrar’s powers to waive fees on the grounds of public interest by providing that, in addition to her being satisfied the proceeding does concern a matter of genuine public interest, she must also be satisfied the proceeding is unlikely to be commenced or continued unless the fee is waived. In Ms Clements’ applications for waiver, she had ticked a box stating that she would start or continue with the proceeding even if waiver was refused. The Registrar found for that reason alone the application for a waiver could not be granted. I agree.
[8] As to whether the proceedings do raise a matter of “genuine public interest”, the term “genuine public interest” is relevantly defined in the Regulations. It means a proceeding that raises a question of law of significant interest to the public or to a substantial section of the public.^[4]
[9] On review, Ms Clements contends that, contrary to the Registrar’s assessment, the appeal raises crucial matters of public interest that impact on the public’s right to health and life.
[10] I agree with the Registrar that the proceedings in question do not satisfy the statutory definition of a genuine public interest. The decision in the High Court turned on a finding that the statement of claim did not disclose a reasonably arguable cause of action.^[5] The focus of the appeal will therefore involve an analysis of the statement of claim and whether it disclosed a cause of action and generally complied with the requirements of the High Court Rules 2016. That is very much a case specific issue.
[11] The application for review of the Registrar’s decision refusing to grant waiver of the filing fees is accordingly declined.

The application for dispensation of security for costs

[12] In her application for dispensation of payment of security, Ms Clements stated she did not have the means to pay security for costs. This prompted the Registrar to ask Ms Clements to provide information about her financial position to support a claim of impecuniosity.^[6] Ms Clements declined to provide any financial information and asked the Registrar to decide the application solely on the grounds of public interest. That remains the position on review.
[13] It is well established that payment of security should only be dispensed with if it is right to require the respondents to defend the judgment under challenge without the usual protection as to costs provided by security.^[7]
[14] For the reasons traversed above in relation to the application for waiver of filing fees, I am not persuaded the appeal raises any issue of public interest. I am also satisfied on the basis of the information before me, including the statement of claim that was filed in the High Court, that the appeal lacks merit. Those being the circumstances, it is in the interests of justice that security for costs be paid.

Result

[15] The application for review of the Registrar’s decision declining to waive payment of filing fees is declined.
[16] The application for review of the Registrar’s decision declining to dispense with payment of security for costs is declined. Security for costs in the sum of $6,600 must be paid by 21 January 2019.

Solicitors:
Crown Law, Wellington

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^[1] Clements v Queen of England [2018] NZHC 2244 at [25]–[34].

^[2] Court of Appeal Fees Regulations 2001, reg 5(3)(b) provides inability to pay a fee is established for an applicant who has not been granted legal aid if they are dependent on certain kinds of social security or would otherwise suffer undue financial hardship if they paid the fee.

^[3] Boswell v Millar [2013] NZCA 219 at [6]; and Rafiq v Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZCA 243 at [9]–[11].

^[4] Court of Appeal Fees Regulations, reg 5(4).

^[5] Clements, above n 1, at [25] and [35].

^[6] See Reekie v Attorney-General [2014] NZSC 161, [2014] 1 NZLR 737 at [43].

^[7] Reekie, above n 6, at [31].