Better Public Media Trust v Attorney-General [2020] NZCA 290 (15 July 2020)

Last Updated: 21 July 2020

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

CA171/2020 [2020] NZCA 290

	BETWEEN	BETTER PUBLIC MEDIA TRUST Applicant
	AND	ATTORNEY-GENERAL Respondent

Counsel:	E D Nilsson and S J Humphrey for Applicant D L Harris and J B Watson for Respondent
Judgment: (On the papers)	15 July 2020 at 10.00 am

JUDGMENT OF COLLINS J
(Review of Deputy Registrar’s decision)

The application for review of the Deputy Registrar’s decision not to fully dispense with security for costs is granted.
____________________________________________________________________

REASONS

• [1] Better Public Media Trust (the Trust) applied to dispense with security for costs in relation to an appeal it wishes to pursue. The Deputy Registrar declined this application. The Trust now seeks a review of that decision.^[1]

Background

• [2] The Trust is an incorporated trust board that operates to advance, promote and educate people about “public media” in New Zealand. The Trust’s application to be registered as a charity under the Charities Act 2005 was declined by the Charities Registration Board (the Board). The Trust appealed this decision to the High Court.^[2] Cull J found that the Trust did not have a sufficient charitable purpose to be registered as a charity.^[3] The Trust appeals this decision.
• [3] A filing fee of $1,100 and security for costs of $7,060 were set in relation to the appeal. The Trust applied for a waiver of the filing fee on the ground that the proceeding concerns a matter of genuine public interest and would be unlikely to continue if the filing fee was not waived.^[4] The Deputy Registrar granted this application.
• [4] The Trust also applied for dispensation of security for costs.^[5] The Attorney‑General opposed this application but consented to security for costs being reduced to $4,500.

The Deputy Registrar’s decision

• [5] The Deputy Registrar granted the application in part, reducing security for costs to $3,000. She concluded that while the appeal is of some potential benefit and some merit, its public importance does not justify dispensing with security for costs where the Trust is not impecunious and is in a position to be able to raise funds to make the payment. She considered that it was not at all clear that costs would not be awarded to the Attorney-General if the appeal fails. Costs remain at the discretion of the Court.^[6] Previous decisions relating to charities where costs were not awarded did not involve the Attorney-General as a respondent.^[7]

Submissions

• [6] The Trust submits that the full security for costs should have been dispensed with.
• [7] The Trust argues that it is impecunious:

(a) It relies on member subscriptions and donations for its income.

(b) A significant amount of the Trust’s liquid assets are ring-fenced for payment of deferred tax liability;

• [8] The Trust acknowledges, however, it could meet the reduced amount payable for security for costs but this would cause undue hardship.
• [9] The Trust contends the interpretation and application of the Supreme Court’s judgment in Re Greenpeace of New Zealand Inc involves important unresolved issues and that a reasonable and solvent appellant would pursue this appeal.^[8]
• [10] The Trust also argues:

(a) Any potential costs order is likely to be low. The Attorney-General confirms that it would only seek a “modest” costs award.

(b) Costs may not even be awarded, considering the public element involved in the appeal.^[9]

(c) The Attorney-General is not an “orthodox respondent” as he sought leave to be joined to the High Court proceedings in his capacity as “protector of charities”.^[10] In this respect, the Trust argues the Attorney‑General’s involvement is more akin to that of an intervener or amicus, who would not normally expect to receive an award of costs.

• [11] The Attorney-General submits:

(a) He is entitled to the protection of some measure of security for costs, even at the reduced amount that has been set.

(b) The Trust has not established impecuniosity or that it will suffer severe hardship if required to pay security for costs.

(c) The Trust has sufficient funds to make the security for costs payment through making calls upon its membership.^[11]

(d) The appeal is not one of significant public interest and the law engaged by the appeal is settled.

(e) The matter has already been considered by the Board (an independent tribunal) and on appeal (by way of rehearing) in the High Court. Further consideration by this Court is not in the public interest.

(f) The Attorney-General does not concede that he would be unlikely to be awarded costs in the event that the appeal fails.

(g) The presumption in favour of a successful party receiving costs is not rebutted by any aspect of this case.^[12]

(h) The Trust is not advancing any genuine public interest in pursuing the appeal.

Analysis

• [12] The Registrar may dispense with security for costs if they are satisfied that the circumstances warrant it.^[13] The Supreme Court considered circumstances that would warrant dispensation in Reekie v Attorney-General.^[14] The Court identified two grounds upon which security for costs could be dispensed with:^[15]

(a) where costs are unlikely to be ordered against the appellant; or

(b) where the appellant either cannot pay or will suffer severe hardship if payment is required.

• [13] I agree with the Attorney-General that the Trust has not established impecuniosity. The funds are available to be put towards a security for costs payment. This would have significant repercussions for the Trust’s financial position, but it is not insurmountable.
• [14] The other ground discussed in Reekie, however, is more compelling.
• [15] The Attorney-General is not typically the respondent in appeals from decisions of the Board. Section 59 of the Charities Act prescribes a “right of appeal” to the High Court where any person is “aggrieved” by a decision of the Board.^[16] There is no requirement to serve “the appeal” on any respondent.^[17] In previous cases, the Commissioner of Inland Revenue, the Charities Commission or the Board has appeared as a contradictor.^[18] Costs awards are rare in charities appeals, given that the other party is not defending a decision they were party to, but rather are concerned with the development of the law more generally.^[19]
• [16] The Trust consented to the Attorney-General’s involvement in the High Court proceedings, both parties agreeing not to seek a costs award. Generally, the Attorney‑General is not named as a respondent, rather occupying the role of a contradictor.^[20] The Charities Act is silent on the role of the Attorney-General, but he should be involved where appropriate, given his role as protector of charities.^[21]
• [17] Relying on the first ground from Reekie, I am satisfied the Attorney-General suffers no meaningful disadvantage by defending the judgment without the usual protection provided by security for costs.^[22] Accordingly, no security for costs ought to be payable in relation to this appeal.
• [18] This outcome does not preclude this Court exercising its discretion and making a costs award at the conclusion of the substantive appeal. It has been previously recognised that there should not be a blanket rule against costs awards in the context of charities appeals.^[23]

Result

• [19] The application for review of the Deputy Registrar’s decision not to fully dispense with security for costs is granted.

Solicitors:
Lee Salmon Long, Auckland for Applicant
Crown Law Office, Wellington for Respondent

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^[1] Court of Appeal (Civil) Rules 2005, r 5A(3).

^[2] Charities Act 2005, s 59.

^[3] Better Public Media Trust v Attorney-General [2020] NZHC 350 at [86].

^[4] Court of Appeal Fees Regulations 2001, reg 5.

^[5] Court of Appeal (Civil) Rules, r 35(6)(c).

^[6] Court of Appeal (Civil) Rules, rr 53 and 53A.

^[7] The Trust referred the Deputy Registrar to decisions where no costs order was made: Re Education New Zealand Trust HC Wellington CIV-2009-485-2301, 29 June 2010 at [66]; Re Family First New Zealand [2015] NZHC 1493, (2015) 4 NZTR 25-014 at [103]; and Re The Foundation for Anti-Aging Research [2016] NZHC 2328, (2016) 23 PRNZ 726 at [99]. Additionally, the Trust referred to the decisions where the parties agreed not to seek costs: Canterbury Development Corporation v Charities Commission [2010] NZHC 331; [2010] 2 NZLR 707 (HC) at [112]; and The Foundation for Anti‑Aging Research v Charities Registration Board [2015] NZCA 449, (2015) 4 NZTR 25-022 at [60].

^[8] Re Greenpeace of New Zealand Inc [2014] NZSC 105, [2015] 1 NZLR 169.

^[9] Court of Appeal (Civil) Rules, r 53F(e).

^[10] Re The Foundation for Anti-Aging Research, above n 7, at [40]; and see also Wallis v Solicitor‑General for New Zealand [1903] AC 173 (PC) at 181–182.

^[11] Ngāti Te Ata v Minister for Treaty of Waitangi Negotiations [2018] NZCA 471 at [6].

^[12] Court of Appeal (Civil) Rules, r 53A(1)(a).

^[13] Court of Appeal (Civil) Rules, r 35(6)(c).

^[14] Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.

^[15] At [19].

^[16] The High Court is the first court to consider the matter, even though it is doing so on appeal. The Trust is entitled to an appeal as of right from the High Court’s judgment, see s 56(1)(a) of the Senior Court Acts 2016. Parliament deliberately chose not to preclude further appeal from the High Court, see this Court’s discussion in Foundation for Anti-Aging Research v Charities Registration Board, above n 7, at [46]–[47], citing the Charities Bill 2004 (108-2) (select committee report) at 13–14.

^[17] The Charities Registration Board cannot be named as a respondent for the purposes of the appeal as it is the decision-maker, see r 20.9(2) of the High Court Rules 2016. The Court can otherwise direct that the decision-maker be represented and heard at the hearing of an appeal, however: see r 20.17.

^[18] Re the Foundation for Anti-Aging Research, above n 7, at [39]. Prior to the Charities Act and the establishment of the Charities Commission in 2005, the Commissioner of Inland Revenue usually appeared as as there was no separate registration or monitoring regime. The Charities Commission has since been disestablished and its functions transferred to the Chief Executive of the Department of Internal Affairs and the Board. See the Charities Amendment Act (No 2) 2012.

^[19] See the decisions cited at n 7 above and Re Greenpeace of New Zealand Inc [2011] NZHC 77; [2011] 2 NZLR 815 (HC) at [78].

^[20] The Attorney-General is named as a respondent in Greenpeace of NZ Inc v Charities Registration Board [2019] NZHC 929, (2019) PRNZ 589 due to the judicial review proceedings, though described as “the effective contradictor” at [1]. I also note that the Board has been a named respondent in other cases, such as this Court’s decision in Foundation for Anti-Aging Research v Chartities Registration Board, above n 7, but there the parties agreed that there be no order as to costs.

^[21] Re the National Council of Women of New Zealand Inc [2014] NZHC 1297 at [35].

^[22] Reekie v Attorney-General, above n 14, at [31].

^[23] Re Education New Zealand Trust, above n 7, at [66].