McGuire v Secretary for Justice [2019] NZCA 512 (23 October 2019)

Last Updated: 31 October 2019

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

CA70/2019 [2019] NZCA 512

	BETWEEN	JEREMY JAMES MCGUIRE Appellant
	AND	SECRETARY FOR JUSTICE Respondent

Hearing:	21 October 2019
Court:	Brown, Gilbert and Goddard JJ
Counsel:	Appellant in person G L Melvin and A R Williams for Respondent
Judgment:	23 October 2019 at 3 pm

JUDGMENT OF THE COURT

1. The application under r 43 of the Court of Appeal (Civil) Rules 2005 for an extension of time to apply for a hearing date is granted.
2. Mr McGuire must pay security for costs in the sum of $6,600 and apply for a hearing date within five working days of the date of this judgment.

100. We make no order for costs.

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REASONS OF THE COURT

(Given by Gilbert J)

[1] Mr McGuire, a legal practitioner who is not represented in this proceeding, applies under r 43 of the Court of Appeal (Civil) Rules 2005 for an extension of time to pay security for costs and apply for a hearing date for his appeal.
[2] Mr McGuire filed the case on appeal and paid the scheduling fee within time. He could not apply for a hearing date because he had not paid security for costs.^[1] He says he understood that time under r 43 was not running against him because he had applied to defer payment of security for costs and this application had not been determined by the time the three-month time limit expired. Mr McGuire advises he is able to pay security for costs and apply for a hearing date immediately if an extension is granted.
[3] Mr McGuire’s application for an extension of time is nevertheless opposed by the respondent.

Procedural background

[4] In a judgment delivered on 31 January 2019, the High Court dismissed Mr McGuire’s application for judicial review in which he challenged a decision of the Secretary for Justice on 27 October 2015 declining his application to provide legal aid services in a specified category of criminal work.^[2]
[5] Mr McGuire filed a notice of appeal against the High Court judgment on 1 March 2019. Security for costs was set at $13,200 and Mr McGuire was advised on 11 March 2019 that he had until 22 March to pay it. He did not.
[6] On 25 March 2019, Mr McGuire sought a deferral of the time for payment of security for costs on the basis that he had “not had time to fully consider [his] position” and the proceedings “may be discontinued against at least one of the respondents”. The New Zealand Law Society was at that time a second respondent to the appeal. The respondent did not oppose the deferral so long as Mr McGuire paid security for costs before the due date for filing the case on appeal and applying for the hearing date.
[7] On 17 May 2019, the Registrar granted a deferral to 29 May 2019 and advised Mr McGuire that this date was “three days prior to the r 43 deadline of 4 June 2019”.
[8] On 31 May 2019, Mr McGuire filed the case on appeal and paid the scheduling fee. He did not pay security for costs and the appeal was deemed to have been abandoned on 5 June 2019, three months after it was brought.
[9] In the meantime, on 28 May 2019, Mr McGuire advised the Registrar that he intended to apply for a review of her decision on security for costs and he calculated that he had until 17 June 2019 to do so. On 14 June 2019, Mr McGuire wrote, for the attention of “[t]he Duty Judge”, advising that he wished “to question” the Registrar’s decision dated 17 May 2019. Mr McGuire sought an order that security for costs be paid when he filed his submissions for the appeal. Alternatively, he asked the Court to consider whether “staggered payments” could be made. The Registrar treated this letter as an application for review of her decision and she referred it to a judge.
[10] The Judge disagreed with the Registrar’s characterisation of Mr McGuire’s letter. The Judge considered Mr McGuire was not seeking a review of the Registrar’s decision but was instead seeking a further deferral of the time to pay security for costs. The Judge therefore directed that this application be dealt with by the Registrar.
[11] The Registrar wrote to Mr McGuire on 15 July 2019 advising that the appeal was treated as having been abandoned, effective on 5 June 2019, because no application for a hearing date had been made prior to that date.
[12] Mr McGuire filed a memorandum the following day, 16 July 2019, claiming that his letter of 14 June 2019 was an application for a review of the Registrar’s decision concerning deferral of security for costs and accordingly rr 43(1A) and 43(1B) were engaged. The deemed abandonment under r 43(1) is subject to any suspension or extension of time granted under r 43(1B). Rule 43(1B)(c) enables the Registrar to suspend the application of r 43 for periods of up to one month at a time if a review of a Registrar’s decision on an application under r 35(6) has yet to be determined. Rule 35(6)(d) deals with the Registrar’s power to defer the date by which security must be paid.
[13] On 17 July 2019, the Registrar responded to Mr McGuire stating that his application of 25 March 2019 was for a deferral pursuant to r 35(6)(d) but it was not an application under r 43(1B) for suspension of the three‑month time limit. Mr McGuire applied for a review of that decision. This application was declined on 29 July 2019.^[3]
[14] Mr McGuire filed the present application for an extension of time on 7 August 2019.

Submissions

[15] Mr McGuire says the case is important to him. He claims there is no prejudice to the respondent from the delay, which was the result of a misunderstanding. He thought his appeal remained alive pending the determination of his application brought on 14 June 2019, which he had signalled on 28 May 2019, concerning the date for payment of security for costs.
[16] Ms Williams, for the respondent, submits there is no credible explanation for the delay. She argues that Mr McGuire is simply seeking to prolong the legal process for as long as possible to avoid payment of his debts to the respondent. Ms Williams contends there is material prejudice to the respondent because this proceeding is delaying insolvency proceedings that have been brought against Mr McGuire. She also argues the appeal is effectively moot. Even if the appeal succeeded, no useful remedy could be granted because it concerns Mr McGuire’s application for legal aid approval in 2015. There would be no point in the respondent reconsidering his decision because any assessment under the Legal Services (Quality Assurance) Regulations 2011 must be current. Rather, Mr McGuire needs to make a fresh application and provide current information about his experience and other relevant matters.

Decision

[17] Mr McGuire has a right of appeal against the High Court judgment. He clearly wishes to exercise that right and has proceeded with reasonable diligence since filing his notice of appeal. His intended appeal is not so clearly hopeless that it would be appropriate to dismiss it summarily. Mr McGuire has explained the reasons for the delay, which is comparatively short. We accept the delay was caused by a genuine misunderstanding. We are not persuaded the respondent will suffer any real prejudice if the appeal is allowed to proceed, particularly given the very short extension of time sought. We consider the course most consistent with justice is to grant an extension of time to allow the appeal to be determined on its merits.

Result

[18] The application under r 43 of the Court of Appeal (Civil) Rules 2005 for an extension of time to apply for a hearing date is granted.
[19] Mr McGuire must pay security for costs in the sum of $6,600 and apply for a hearing date within five working days of the date of this judgment.
[20] We make no order for costs.

Solicitors:
Crown Law Office, Wellington for Respondent.

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^[1] Court of Appeal (Civil) Rules 2005, r 37(2).

^[2] McGuire v Secretary for Justice [2019] NZHC 42.

^[3] McGuire v Secretary for Justice [2019] NZCA 341.