Opai v Attorney-General [2018] NZHC 1540 (26 June 2018)

Last Updated: 6 August 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2014-092-001026 [2018] NZHC 1540

BETWEEN	MELISSA OPAI Applicant
AND	ATTORNEY-GENERAL Respondent

Hearing:	On the papers
Counsel:	Applicant in person
Judgment:	26 June 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 26 June 2018 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ...............................

OPAI v ATTORNENY-GENERAL [2018] NZHC 1540 [26 June 2018]

[1] Ms Opai has sought a review of the Registrar’s decision to deny her a fee waiver. The hearing fee for her matter is $14,400. The Registrar recorded she was a homeowner and her expenses did not exceed her income.

[2] Ms Opai seeks a waiver based on hardship grounds. Her application noted her total weekly income is $963.50, plus $100 received by her in the form of board. Her total weekly expenses are $877. This included $557 towards a mortgage.

[3] On my request, Ms Opai has clarified that her mother has recently died intestate, but she is now responsible for the mortgage repayments on her mother’s house. She also itemised her expenses as follows:¹

(a)	Proof of income:	$3,854 per month
(b)	Mortgage 1:	$895.78 per month
(c)	Mortgage 2:	$1,333.32 per month
(d)	Personal Loan:	$750.01 per month
(e)	Council Rates:	$82.64 per month
(f)	Credit Card:	$143.00 per month (approx.)
(g)	Sky TV:	$65.00 per month
(h)	Power:	$200 per month (approx.)
(i)	Phone/Internet:	$270 per month (approx.)
(j)	Petrol:	$120 per month (approx.)
(k)	Food:	No set amount

[4] Ms Opai declared that she does not own a house and now claims her expenses exceed her income based on the above. She also advised that she has tried to secure funding for the litigation, but has been unable to do so.

Framework

[5] The power to waive fees is set out at regs 18 and 19 of the High Court Fees Regulations 2013 (Regulations). The relevant parts provide:

¹ This breakdown does not include the board noted at [2].

18. Power to waive fees

...

(2) The Registrar may waive the fee payable by the person if satisfied –

(a) on the basis of one of the criteria specified in regulation 19, that the person is unable to pay the fee; or

(b) that the proceeding –

(i) on the basis of one of the criteria specified in regulation 20, concerns a matter of genuine public interest; and

(ii) is unlikely to be commenced or continued unless the fee is waived.

...

19. Criteria for determining when person unable to pay fee sought to be waived

...

(b) the person –

...

(i) would otherwise suffer undue financial hardship if he or she paid the fee.

[6] Undue hardship in the Supreme Court context was described by McGrath J as
simply “excessive” hardship.² Relevantly, McGrath J found:

I am satisfied that the applicants’ financial position is precarious. If the fee is not waived they will go further into debt in order to pay it. I consider the hardship they would suffer in those circumstances is such as qualifies as undue under the Regulations.

[7] I am aware of various Court of Appeal authorities which appear to take a harder line than taken by McGrath J.³ But context is important. The High Court, in the present case, is a trial Court of first instance and therefore the first portal for access to justice. This heightens the need to be sure that the imposition of the fee does not unduly fetter the ability of litigants to vindicate their claims.

² Jaffari v Grabowski [2014] NZSC 150 at [7].

³³ Boswell v Millar [2013] NZCA 219; Szekely v North [2017] NZCA 295; Appleton v Tauranga Law

[2012] NZCA 418.

[8] Returning to the present case, the Registrar declined the application because he was not satisfied that the hearing fee would cause undue financial hardship. The Registrar noted that Ms Opai was a homeowner, with no dependants, and her expenditure does not exceed her income.

[9] Having reviewed the further information supplied by Ms Opai as to her financial position, I am, however, satisfied that payment of the fee would cause undue financial hardship. Her regular outgoings consume most, if not all, her fixed income. Based on the additional information supplied by her, she has about $400 left for food per month (assuming she receives the board payments). She has an existing substantial mortgage debt. If relief is not granted, Ms Opai will have to go into further debt to bring the claim which inevitably will put substantial strain on her living circumstances. Her position is evidently precarious.

[10] One factor that was unsatisfactorily explained by Ms Opai is whether she stands to inherit her mother’s house. There is no mention of a surviving spouse or other siblings. Given Ms Opai is a co-mortgagor, she must at least have some expectation of receiving an interest in the property. Nor is there any explanation of any other inheritance which might be available to her. Her apparent lack of transparency on this is not favourable to her. Balanced against this, Ms Opai has diligently pursued her action, first in the District Court and now in this Court. She has already committed significant resources, energy and time to the vindication of her claims. This background further heightens the importance of access to justice.

[11] Overall therefore, access to justice is a prevailing consideration in this case. Court fees should not become a barrier to earnest litigants of limited financial means, with prima facie legitimate claims, coming to this Court. She is one of those litigants. Ms Opai has shown to my satisfaction that a fee of $14,400 would cause undue financial hardship. I therefore grant the fee waiver.