Loftus v Rewi [2020] NZCA 297 (17 July 2020)

Last Updated: 21 July 2020

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

CA179/2020 [2020] NZCA 297

	BETWEEN	STEPHEN LOFTUS Appellant
	AND	VIVIAN-LEE REWI Respondent

Counsel:	Appellant in person S P Symon and C G McDiarmid for Respondent
Judgment: (On the papers)	17 July 2020 at 10.00 am

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

1. The application to review the decision of the Deputy Registrar declining to dispense with security for costs is declined.
2. Payment of security of $7,060 must be made on or before Friday 7 August 2020.

____________________________________________________________________

REASONS

Introduction

• [1] This is an application for review of the Deputy Registrar’s decision on an application to dispense with security for costs in relation to an appeal to this Court by the appellant. The application to dispense with security for costs was made under r 35(6) of the Court of Appeal (Civil) Rules 2005 (the Rules). I have personally considered the application to review the Registrar’s decision under r 7(b) of the Rules and s 49(6) of the Senior Courts Act 2016.

Background

• [2] The appellant was charged with owning a dog, “Ringo”, that attacked an eight‑year-old boy, contrary to s 57(2) of the Dog Control Act 1996. In the District Court he maintained the charging notice was not valid for various reasons. Those arguments were not accepted by the District Court Judge, who convicted and sentenced him.^[1]
• [3] The appellant applied to the High Court for judicial review of the District Court decision. The Auckland Council (Council), which brought the charge against the appellant, was named as respondent. The Judge described the judicial review application as follows:^[2]

[3] Now “Stephen: loftus” seeks judicial review of the Judge’s decision. He says the legal process used was a not a lawful process. His statement of claim is a mish-mash of pseudo-legal phrases that have no meaning in New Zealand law. Some of those phrases correspond to labels of grounds of judicial review. But there are no details of them.

[4] The statement of claim closely resembles, in format and lack of substance, another statement of claim I struck out recently for abuse of process. There are also similarities to what one Canadian Judge has called “Organized Pseudolegal Commercial Argument” (OPCA). Ellis J recently considered the issue of OPCA litigants, and noted:

At a general level, it seems to me that it will inevitably be an abuse of process for a litigant to attempt to employ OPCA concepts in seeking to avoid or defeat any state, regulatory, contract, family or other obligations recognised by law.

[5] As “Stephen: loftus” acknowledged today in the call of the matter in the Judicial Review List, he considers the law of the land is “totally different” to the legal process being used in the New Zealand courts. He also acknowledged my suggestion that he would accordingly be unsurprised if I do not accept his arguments.

• [4] The High Court struck out the statement of claim on the basis that it disclosed no reasonably arguable cause of action, hearing it was likely to cause prejudice and delay to the respondent and the court system, and it was an abuse of the process of the court.

Appeal to this Court

• [5] On 3 April 2020 the appellant filed an appeal from the High Court judgment.^[3] The notice of appeal named as respondent Ms Rewi, the Council officer who signed the District Court summons. The Council, the respondent in the High Court proceedings, was not named as a respondent on appeal. A notice of appearance was filed on behalf of “Vivian-Lee Rewi of Auckland Council”. References in this judgment to “the respondent” are references to Ms Rewi and/or the Council, as the context requires.
• [6] The grounds of appeal set out in the notice of appeal read as follows:

2.1 To date, the lower court have not stated any grounds not to appeal or advised us clearly of our lawful right to appeal within the Judgment of Justice Palmer J.6 march 2020

2.2 To date, judgment documents received by us have no Court seal or registrars name or signature attached. Inconsistent with Senior Courts ACT 2016 part 2 High Court s 8 Seal (2) why?

Application to dispense with security for costs

• [7] Security for costs in respect of the appeal was set at $7,060 under r 35 of the Rules. On 6 May 2020 the appellant applied under r 35(6)(c) of the Rules to have security for costs dispensed with. That application was opposed by the Council.
• [8] On 2 June 2020 the Deputy Registrar declined the application to dispense with security for costs, and directed that it be paid by 16 June 2020.

Application for review

• [9] By letter dated 29 June 2020 the appellant sought review of the Deputy Registrar’s decision. The letter took issue with the terms of address used to refer to him, and said that the security for costs decision “is flawed in that it does not state a sum certain written amount and merely contains the numbers 7,060 proceeded [sic] by the symbol $ thereby creating uncertainty as to what the court is directing. Please explain?”
• [10] The letter goes on to set out a number of complaints about the proceedings in the District Court and High Court. The appellant says that he was advised by the East Tamaki and Papakura Community Law Centres that he would not be eligible for legal aid. Due to COVID-19, ill-health and “refusal by the Court staff and respondent to make available required documents”, it had been difficult to seek legal aid. The appellant complains that the Deputy Registrar’s decision was ultra vires, failed to observe natural justice, due process, procedural fairness and “the issue of law has not been stated or clarified with supported maxims of law within your decision document”.
• [11] The respondent filed a memorandum opposing the application for review of the Deputy Registrar’s decision.

Analysis

Relevant principles

• [12] Security for costs is normally required in every civil appeal to this Court, unless the appellant has applied for, or been granted, legal aid.^[4] The security for costs regime ensures the respondent has some protection in relation to the costs they incur in responding to an appeal, in the event that the appeal is unsuccessful and the Court awards costs against the applicant. The security for costs regime also imposes some discipline on litigants, discouraging the commencement of proceedings that are frivolous or disproportionate to the matters in issue.^[5]
• [13] The principles governing the discretion to dispense with security for costs in this Court were summarised by the Supreme Court in Reekie v Attorney‑General:^[6]

[35] Against that background, 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.

• [14] As the Supreme Court went on to observe, a litigant who is unable to provide security for costs usually finds it necessary to apply for legal aid. The availability of legal aid is subject to criteria which proceed very much along the lines of how a reasonable and solvent litigant would approach the decision whether or not to appeal. Security for costs will not be required where legal aid is granted.^[7]

Should security for costs be dispensed with in this case?

Impecuniosity

• [15] The Deputy Registrar noted that the information before her was not sufficient to establish impecuniosity. However she did not seek additional information on this issue, as she considered that security ought not to be dispensed with even if the appellant was impecunious. She therefore put the issue to one side.
• [16] The appellant has not provided any additional information in relation to his financial position. It remains the case that the Court has insufficient information to assess whether he is unable to pay security for costs. However it is not necessary to resolve that issue, in the circumstances set out below.

What would a reasonable and solvent litigant do?

• [17] I have carefully reviewed the High Court decision, and the appellant’s notice of appeal. I am firmly of the view that a solvent appellant would not reasonably wish to pursue an appeal from the High Court decision.
• [18] The notice of appeal does not identify any arguable error of law or fact in the High Court decision. Neither of the complaints made about the High Court decision, which were set out at [6] above, calls into question in any way the conclusions reached by the Judge. To the contrary, the content of the notice of appeal confirms that the proceeding appears to be an abuse of process that is likely to waste the time of the respondent and the courts.
• [19] I am satisfied that the appellant, even if impecunious, should not be able to use his lack of means to obtain the advantage of being able to pursue any appeal, which would not be sensibly pursued by a solvent litigant. I am also satisfied that it would be unfair to the respondent to require the appeal to be defended without any security for costs.

Result

• [20] The Deputy Registrar’s decision to refuse to dispense with security for costs was correct. Accordingly, I decline the application for review under r 7(b) of the Rules.
• [21] The appellant must pay to the Registrar security of $7,060 for the respondent’s costs in this Court in relation to the present appeal on or before Friday 7 August 2020.

Solicitors:
Meredith Connell, Auckland for Respondent

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^[1] Auckland Council v Loftus [2019] NZDC 2063 [District Court judgment].

^[2] Loftus v Auckland Council [2020] NZHC 416 [High Court judgment] (footnotes omitted).

^[3] The notice of appeal also on its face sought to challenge various minutes issued in the course of the High Court proceeding, and the District Court decision. But there is no right of appeal to this Court in respect of the High Court minutes or the District Court decision. The only decision referred to in the notice of appeal in respect of which this Court has jurisdiction to entertain an appeal is the High Court judgment.

^[4] Court of Appeal (Civil) Rules 2005, rr 35 and 36.

^[5] Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [33].

^[6] Reekie v Attorney-General, above n 5.

^[7] At [36].