Harrison v Harrison [2022] NZCA 246 (13 June 2022)

Last Updated: 24 June 2022

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

CA725/2020 [2022] NZCA 246

	BETWEEN	PAULINE JANICE HARRISON Appellant
	AND	ADRIENNE HARRISON AND GRAEME ROSS HARRISON First Respondents NICHOLAS HAMILTON BIRDSEY Second Respondent RAYMOND OWEN PARMENTER Third Respondent CHILDFUND NEW ZEALAND LIMITED Fourth Respondent ASB BANK LIMITED Fifth Respondent

Counsel:	Appellant in Person
Judgment: (On the papers)	13 June 2022 at 11.00 am

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

1. The application for review of the Deputy Registrar’s decision is declined.
2. Ms Harrison is to pay security for costs in the sum of $14,120.00 by 12 July 2022. Should she fail to do so her appeal will be struck out under r 37(1) of the Rules.

____________________________________________________________________

REASONS

Introduction

• [1] Ms Harrison appeals from a judgment of the High Court in which Powell J made inter alia the following orders:^[1]

(a) striking out proceeding CIV-2019-404-2078 issued by Ms Harrison against the first respondents;

(b) striking out Ms Harrison’s claims against ASB Bank Ltd in proceeding CIV‑2019-404-2566; and

(c) an extended civil restraint order against Ms Harrison pursuant to s 166(2) of the Senior Courts Act 2016 (the SCA).

• [2] Security for costs was fixed at $35,300 pursuant to r 35 of the Court of Appeal (Civil) Rules 2005 (the Rules) by reference to the number of respondents named in the notice of appeal. Ms Harrison applied for dispensation from the requirement to pay security for costs. Her application was dismissed but the Deputy Registrar reduced the amount of security to $14,120 because only the first respondents and the fifth respondent would be actively involved in the defence of the appeal.

Relevant principles

• [3] The principles applicable to dispensation from security for costs were reviewed by the Supreme Court in Reekie v Attorney‑General.^[2] 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.^[3] 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.

• [4] The Court also ruled that the review function of the judge in relation to security for costs is to be exercised de novo.^[4]

Ms Harrison’s previous challenge to the security for costs regime

• [5] Ms Harrison’s application for dispensation was made on the ground that she was unable to pay security and would suffer severe hardship if payment was required. In accordance with usual practice the Deputy Registrar requested that Ms Harrison provide detailed financial information in support of her claim that she was impecunious.
• [6] Ms Harrison did not provide that information. Instead she filed an interlocutory application seeking a declaration of inconsistency between rr 35–37 of the Rules and ss 145 and 148 of the SCA. In dismissing her application this Court noted that in its discussion in Reekie of the security for costs regime, the Supreme Court observed that the default position in New Zealand (since 1882) has always been that security for costs should be provided in relation to appeals. This Court stated that, if sustained, Ms Harrison’s argument would have wide implications for what has generally been regarded as an essential element of providing for the just despatch of the business of this Court and the administration of justice.^[5]
• [7] The Court observed that it was inappropriate to engage with such an issue in an interlocutory process and on an ex parte basis, pointing out that an application for a declaration of the kind Ms Harrison wished to make would need to be the subject of a proceeding properly commenced in the High Court.^[6] The Court allowed Ms Harrison a further period of five working days to provide the information sought by the Deputy Registrar. The Court directed that if no response was received within that timeframe, the Deputy Registrar was to proceed to deal with the application for dispensation with security for costs on the basis of the information then available.^[7]
• [8] Ms Harrison sought leave to appeal to the Supreme Court from this Court’s decision. In declining leave, the Supreme Court remarked:^[8]

[9] As will be apparent, we consider that the challenge to the validity of the rules has insufficient prospects of success to justify the granting of leave. This is for the following reasons:

(a)  The High Court Rules 2016 (which have statutory effect under s 147(1) of the Senior Courts Act) provide for security for costs in relation to appeals to the High Court. These requirements are not open to challenge as ultra vires by reason of s 147 and they might be thought to establish that rules as to security for costs are within the statutory purposes.

(b)  The validity of the security for costs rules should be assessed against s 51C of the [Judicature Act 1908] rather than s 145 of the [SCA] but, in any event, the legislative history represented by s 51C is that a rule can be justified by reference to either (a) or (b) of s 145. As well, there is inevitably some tension between the different elements of the statutory purposes. Promotion of the just and speedy dispatch of court business may impose expense. Debate over the proper scope of discovery illustrates this. Those making the rules must balance competing considerations. That a procedural requirement imposes expenses on litigants is not in itself a basis for concluding that it is invalid.

(c)  The security for costs rules in relation to appeals are not inconsistent with the inexpensive dispatch of court business. In this context, expense of litigation must be looked at in the round rather than from the point of view of particular litigants. If there was no requirement for security for costs, the proposed appeal would be less expensive from the point of view of Ms Harrison at this point but could be more expensive for the respondents, if they are later awarded costs which she is unlikely to pay; this given that she is bankrupt. The key policy issue in respect of security for costs rules is not expense but rather access to justice, as is discussed in the judgment of this Court in Reekie v Attorney-General.

(d)  Ms Harrison’s argument is inconsistent with the result in Reekie, which Ms Harrison says was decided per incuriam.

The Deputy Registrar’s decision

• [9] Ms Harrison failed to provide the information requested within the further period allowed. On 22 September 2021 the Deputy Registrar released the decision which is the subject of the present application for review. Applying the Reekie principles, the Deputy Registrar concluded that, in the absence of the financial information requested, Ms Harrison had failed to establish that she was impecunious. The Deputy Registrar saw little merit in the appeal of the extended civil restraint order and no merit in the appeal of the strike out orders. She considered there was an element of vexatiousness in the appeal and that it did not raise any issues of public interest. She concluded:

[27] In my view, the circumstances, taken together, do not justify dispensing with the requirement to provide security for the respondents’ costs. Ms Harrison has failed to show she is impecunious, and the appeal does not involve any issue of public interest that could justify dispensing with security for costs in the absence of established impecuniosity. The appeal also involves an element of vexatiousness and has little merit. Security should, however, be reduced to $14,120 because only two respondents will actively defend the appeal.

The application for review

• [10] Ms Harrison’s review comprised two documents. The first, a comparatively brief document entitled Notice of Legal Challenge, foreshadowed her intention to bring some form of legal challenge by way of an interlocutory application filed within 20 working days. The theme of the document is apparent from the third paragraph:

It is unlawful and unconstitutional of this Court to use its own rules for improper purpose as the Ministry of Justice is doing to filter and obstruct statutory right of appeal in violation of the governing Act of Parliament which enacts right of appeal in ss 56(4) and 169(8) and enacts the inexpensive bright‑line requirement in s 145 which mandates the purpose of practice and procedure of court rules. The Ministry of Justice’s arbitrary exclusion and overriding of the inexpensive bright-line requirement in its rules and policy is unlawful and unconstitutional, and as stated above — the Act has primacy of law.

In short, Ms Harrison’s first document reprised the ultra vires proposition previously rejected by both this Court and the Supreme Court.

• [11] A week later Ms Harrison filed a more extensive document, some 21 pages in length, described as an interlocutory application. It recited 81 contentions as “grounds”, the first of which pursued the theme of the earlier document:

2.1 GROUND: The key issue is, there is no legal mandate for the expensive security for costs scheme. Therefore the Public are not obliged to apply cap in hand for “waivers” of security for costs, when all the time the Deputy Registrar does not have valid jurisdiction to hold the Public to ransom in this way at pain of barricading the statutory right of appeal, barring law and justice.

The document proceeded to address several other themes, including the charge‑out rates for lawyers at various levels, the unfairness of the Deputy Registrar’s request to Ms Harrison for personal information, and commentary on various events in the previous wider litigation. Reference was made to the participation of four High Court Judges in addition to Powell J, whose judgment is the subject of the current appeal.

• [12] The concluding part of Ms Harrison’s second document, headed “Reflections”, revealed her inability to view the litigation with any objectivity:

The way Ms P J Harrison is being treated in the Justice system is violation of the Rule of Law. It is apparent that Ms P J Harrison is disadvantaged by an element of classism and marginalised in violation of fundamental constitutional legal principle and she is discriminated against for age, sex, health and being a litigant in person which are being taken advantage of, taking what belongs to her and treating her enslaved as if she has no rights. In the eyes of the law, that treatment is not allowed.

• [13] Ms Harrison’s documents do not comprise an endeavour to seek review of the Deputy Registrar’s decision. Her primary contention involves no more than a repetition of the ultra vires complaint previously rejected. I am unpersuaded that there is any justification for permitting Ms Harrison’s appeal to proceed without the provision of adequate security for costs for the two respondents affected. The Deputy Registrar’s decision was entirely sound. I share her view that the proposed appeal involves an element of vexatiousness.

Result

• [14] The application for review of the Deputy Registrar’s decision is declined. Ms Harrison is to pay security for costs in the sum of $14,120.00 by 12 July 2022. Should she fail to do so, her appeal will be struck out under r 37(1) of the Rules.

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^[1] Harrison v Harrison [2020] NZHC 3066.

^[2] Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.

^[3] At [31].

^[4] At [23].

^[5] Harrison v Harrison [2021] NZCA 301 at [6].

^[6] At [6]–[8].

^[7] At [11].

^[8] Harrison v Harrison [2021] NZSC 115 (footnotes omitted).