O'Neill v Bridgman [2019] NZCA 685 (20 December 2019)

Last Updated: 20 December 2019

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

CA229/2019 [2019] NZCA 685

	BETWEEN	CHRISTOPHER JOSEPH O’NEILL Appellant
	AND	ANDREW BRIDGMAN First Respondent
	AND	TANIA OTT Second Respondent
	AND	CARL CRAFAR Third Respondent

Counsel:	Appellant in Person A F Todd and J B Watson for Respondents
Judgment: (On the papers)	20 December 2019 at 11.30 am

JUDGMENT OF COURTNEY J
[Review of Registrar’s decision]

1. The application for review of the Deputy Registrar’s decision refusing to dispense with security for costs is declined.

2. Security for costs in the sum of $6,600 must be paid by 13 January 2020.

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REASONS

Introduction

[1] On 13 May 2019 Mr O’Neill filed a notice of appeal (CA229/2019) against the judgment of Thomas J, striking out Mr O’Neill’s application for judicial review against the respondents, who are the former Secretary for Justice and two senior employees at the Ministry of Justice.^[1]
[2] Pursuant to r 35 of the Court of Appeal (Civil) Rules 2005, security for costs was set at $6,600. Mr O’Neill applied for dispensation from security for costs under r 35(6) on the ground of his inability to pay it. In a decision dated 13 August 2019, the Deputy Registrar declined the application and directed that security be paid by 3 September 2019.
[3] Mr O’Neill seeks review of that decision.^[2]

Relevant principles

[4] The principles applicable to dispensation from security for costs were reviewed by the Supreme Court in Reekie v Attorney-General.^[3] The Court stated that the Registrar should dispense with security if of the view that it is right to require the respondent to defend the judgment under challenge without the usual protection as to costs provided by security.^[4] The Court explained:

[35] ...we consider that the discretion to dispense with security should be exercised so as to:

(a) preserve access to the Court of Appeal by an impecunious appellant in the case of an appeal which a solvent appellant would reasonably wish to prosecute; and

(b) prevent the use of impecuniosity to secure the advantage of being able to prosecute an appeal which would not be sensibly pursued by a solvent litigant.

A reasonable and solvent litigant would not proceed with an appeal which is hopeless. Nor would a reasonable and solvent litigant proceed with an appeal where the benefits (economic or otherwise) to be obtained are outweighed by the costs (economic and otherwise) of the exercise (including the potential liability to contribute to the respondent's costs if unsuccessful). As should be apparent from what we have just said, analysis of costs and benefits should not be confined to those which can be measured in money.

[5] The Court also ruled that the review function of the judge in relation to security for costs is to be exercised de novo.^[5]

Deputy Registrar’s decision

[6] After citing the relevant principles from Reekie, the Deputy Registrar considered the evidence submitted by Mr O’Neill under the heading “Impecuniosity”. Those documents show that Mr O’Neill, is retired, in poor health and his sole income is the New Zealand Superannuation. The Deputy Registrar noted that Mr O’Neill has not applied for Legal Aid and owes around $15,000 in legal costs. The Deputy Registrar also recorded funds of over $13,500 available in Mr O’Neill’s bank accounts, which the appellant says is for rates, insurance and health care.
[7] The Deputy Registrar was not satisfied that Mr O’Neill could not use part of his savings to pay the $6,600 security for costs. Specifically, there was no indication that Mr O’Neill was subject to any arrangement requiring regular repayments of his legal fees and planned surgery was to be undertaken through the public health system. The Deputy Registrar also noted that rates for which Mr O’Neill was responsible were $605 per quarter (Mr O’Neill has a quarter interest in the property in which he resides and has claimed a half interest in another property).
[8] In respect of the potential costs and benefits, the Deputy Registrar noted that the costs of the appeal to Mr O’Neill are largely financial, with the potential to have a costs order made against him of around $9,560 plus disbursements. By contrast, the Deputy Registrar noted that the potential benefit to Mr O’Neill are non-financial.
[9] Turning to address the merits of the appeal, the Deputy Registrar considered that it would be very unlikely that Mr O’Neill would be able to overcome the bases for strike out identified by Thomas J. She also noted that the conclusion of Thomas J that Mr O’Neill’s claim was “fundamentally flawed” due to the separation of the executive from the judiciary was fully reasoned and supported by constitutional principle and authority. She considered that the various grounds of appeal raised by Mr O’Neill in his 250 page bundle do not raise any arguments capable of defeating those conclusions.
[10] Finally, the Deputy Registrar acknowledged that there could be some public interest in the issue of whether the public has a right to seek judicial review of decisions made in response to complaints from members of the public about registry staff however did not consider that the proposed appeal would provide any precedent value. There already exists relevant authority on this issue.
[11] The Deputy Registrar was not satisfied that Mr O’Neill’s circumstances taken together were exceptional. In her view, it would not be right to require the respondents to defend the judgment under appeal without the usual amount of security for their costs.

Discussion

[12] Mr O’Neill’s submission in support of his application raises no new points. He remains focused on his allegations of corruption within the Court. In relation to the Deputy Registrar’s decision, he asserts that the Deputy Registrar did not read his application but rather deferred to the Crown submissions. In particular he takes issue with the finding that he was not impecunious, saying that his failure to make payments on his house from the funds in his bank account will leave him homeless, which must amount to hardship.
[13] In the absence of any new information, I consider that the Deputy Registrar was correct in her finding that Mr O’Neill was not impecunious. It is true that his finances are constrained, but on the available information he does have the ability to meet the security for costs as fixed.
[14] I also agree with the Deputy Registrar’s analysis of Thomas J’s decision and her conclusion that Mr O’Neill does not raise any argument that would undermine that decision. I cannot see any error in the Deputy Registrar’s finding that the proposed appeal appears to lack merit. The lack of apparent merit, together with the risk of costs being awarded against Mr O’Neill in the event of the appeal failing, means that a reasonable and solvent appellant would not choose to pursue this appeal.
[15] I therefore decline the application for review of the Deputy Registrar’s decision that security for costs must be paid if this appeal is to be pursued. Security for costs in the sum of $6,600 must be paid by 13 January 2020.

Solicitors:
Crown Law Office, Wellington for Respondents

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^[1] O’Neill v Bridgman [2019] NZHC 944.

^[2] Court of Appeal (Civil) Rules 2005, r 5A(3).

^[3] Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.

^[4] At [31].

^[5] At [23].