McGuire v Secretary for Justice [2019] NZCA 341 (29 July 2019)

Last Updated: 6 August 2019

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

CA70/2019 [2019] NZCA 341

	BETWEEN	JEREMY JAMES MCGUIRE Applicant
	AND	SECRETARY FOR JUSTICE First Respondent NEW ZEALAND LAW SOCIETY Second Respondent

Counsel:	Applicant in person G L Melvin and M J McKillop for First Respondent P N Collins for Second Respondent
Judgment: (On the papers)	29 July 2019 at 3.00 pm

JUDGMENT OF WILD J
(Review of Registrar’s Decision)

1. Because the applicant did not, on 14 June 2019, apply for a review of the Registrar’s decision, a review was declined at that time.
2. The Registrar is correct to treat this appeal as having been abandoned, effective 5 June 2019.

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REASONS

[1] Mr McGuire purports to seek a review of the Registrar’s decision of 17 May 2019 deferring to 29 May payment of the $13,200 security for costs fixed for this appeal.
[2] Mr McGuire filed his appeal on 1 March 2019. It is against a judgment delivered by Clark J on 31 January dismissing Mr McGuire’s application for judicial review of decisions made by the two respondents to this appeal.^[1] Broadly, those decisions relate to Mr McGuire’s standing as a legal practitioner, and his ability to undertake criminal legal aid work.
[3] As there are two respondents, security for costs was fixed at $13,200 and Mr McGuire so advised on 11 March. Mr McGuire was also advised he had until 22 March to pay the security. He did not pay it.
[4] On 25 March Mr McGuire sought deferral of the payment of security explaining “these proceedings may be discontinued against at least one of the respondents but I have not had time to fully consider my position as yet.” Mr McGuire did not specify how long he needed to assess his position and, if he decided to proceed, to pay the security fixed.
[5] Neither counsel opposed deferral. However counsel for the first respondent did not object provided security was paid before the due date for filing the case on appeal and applying for a hearing date in terms of r 43(1) of the Court of Appeal (Civil) Rules 2005, which counsel calculated was 28 May.
[6] In her decision the Registrar granted deferral to 29 May advising “that date is three days prior to the r 43 deadline of 4 June 2019”. The Registrar’s decision stated the deferral was granted pursuant to r 35(6)(d). So Mr McGuire was granted a deferral of the payment of security for over two months and was reminded of the r 43 deadline.
[7] On 28 May Mr McGuire advised the Registrar he intended applying for a review of her decision. He calculated that he had until 17 June to seek a review. He added that he would file the case on appeal and pay the setting down fee in the meantime.
[8] On 31 May Mr McGuire filed the case on appeal and paid the scheduling fee of $2,700.
[9] By letter dated 14 June marked “For: The Duty Judge” Mr McGuire advised he wished “to question” the Registrar’s 17 May decision. He advised he had filed and served the case on appeal and paid the filing and scheduling fees. He added “I fully intend pursuing the appeal accordingly.” He then said this:

3. I am a sole practitioner with a fairly modest practice. I already have another appeal in this Court against the New Zealand Law Society where all payments have been made. We are now waiting for a hearing date to be allocated. My understanding is that time is now fairly scarce for this appeal to be heard before the end of this year.
4. In the circumstances, I seek an order that the security for costs be paid when I file my submissions for this appeal. That would not prejudice either respondent as, to date, neither has been required to do much for this appeal. I would be unable to proceed unless I also paid then. This, however, would appreciably assist my cash flow situation. Otherwise I request the Court to consider whether staggered payments could be made (say thirds or half in half) as directed by the Court.

[10] As the Registrar advised Mr McGuire in her letter of 15 July, she treated that 14 June letter as an application for review and referred it to me. Having considered the file I formed the view that Mr McGuire was not, in fact, seeking a review of the Registrar’s 17 May decision. That is not surprising because that decision gave Mr McGuire the deferral he had requested while he considered whether to pursue his appeal and, if he did, whether against one or both respondents. Having decided to pursue his appeal, Mr McGuire was seeking a further deferral of the date by which security must be paid: r 35(6)(d). And, pursuant to r 35(10), he also needed an extension of the time specified in r 35(7) to apply for that further deferral.
[11] I considered that application for a further deferral should be dealt with by the Registrar and not by me. Rule 35 vests the relevant powers firmly in the Registrar. I am aware that a Judge may exercise any power exercisable by the Registrar: r 7(b). However, if a Judge does that the power to seek review by a Judge of the Registrar’s exercise of her r 35 powers is no longer available. One Judge is not going to review another Judge’s exercise of a power vested in the Registrar. I accordingly referred the file back to the Registrar, explaining my view to her.
[12] The Registrar has now again referred this file to me. I have read the exchange of correspondence and memoranda between the Registrar and Mr McGuire on 15 and 17 July.
[13] I hold the position to be this:

• (a) Contrary to what he maintains in his 15 July memorandum, Mr McGuire did not, in his 25 March email, apply under r 43(1B) for a suspension of the three months period stipulated in r 43(1). He applied for “the payment of security for costs [to] be deferred”. That concerns the subject matter and uses the language of r 35(6)(d) and the Registrar expressly, and correctly, granted a deferral under r 35(6)(d). Mr McGuire did not demur when he received that decision: he did not protest that his application had been misunderstood, and was an application under r 43(1B). The reason is obvious: it was not such an application.
• (b) Thus, r 43(1A) and (1B) have not been engaged.
• (c) Mr McGuire has not applied for the allocation of a hearing date pursuant to r 38(1). As the Registrar pointed out to Mr McGuire in her 15 July letter, such an application needs to comply with r 38(3). There is nothing on the Court file from Mr McGuire which could be construed as an application under r 38(1). Quite apart from that, Mr McGuire could not apply under r 38(1) for the allocation of a hearing date while in default of his obligation to pay security for costs: r 37(2). And Mr McGuire has been in default of that obligation since 29 May.
• (d) The consequence is that this appeal was treated as having been abandoned, effective 5 June: r 43(1). Should Mr McGuire wish to pursue this appeal, his course is as outlined by the Registrar in her 15 July letter to Mr McGuire.
• (e) As there is no extant appeal, there is no review jurisdiction. But, so that Mr McGuire is not left in doubt, I reiterate my view that he did not apply for a review of the Registrar’s decision. I have explained this in [10] above. It was for that reason that I did not review that decision when this file was referred to me in June.

Result

[14] The Registrar is correct to treat this appeal as having been abandoned effective 5 June 2019 by operation of r 43(1). I therefore currently have no review jurisdiction. Quite apart from that, Mr McGuire did not, on 14 June, apply for a review of the Registrar’s decision.

Solicitors:
Crown Law Office, Wellington for First Respondent

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^[1] McGuire v Secretary for Justice [2019] NZHC 42.