McGuire v Wellington Standards Committee (no 1)

[2015] NZCA 163

IN THE COURT OF APPEAL OF NEW ZEALAND

CA26/2015
[2015] NZCA 163

BETWEEN

JEREMY JAMES MCGUIRE
Appellant

AND

WELLINGTON STANDARDS COMMITTEE (NO 1)
First Respondent

THE LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL
Second Respondent

Counsel:

Appellant in person
T J Mackenzie for First Respondent
P J Gunn and M McKillop for Second Respondent

Judgment:

(On the papers)

12 May 2015 at 3.30 pm

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

AThe application for a review of the Registrar’s decision is dismissed.

BSecurity for costs in the sum of $5,880 must be paid by Wednesday 3 June 2015.

____________________________________________________________________

REASONS

1. By letter dated 9 April 2015, Mr McGuire has sought a review of the Registrar’s decision not to waive some or all of the security for costs payable on his appeal.

2. The appeal was filed on 21 January 2015 and relates to a decision of Mallon J in the High Court delivered on 2 December 2014.[1]

   [1]McGuire v Wellington Standards Committee (No 1) [2014] NZHC 3042.

3. Security for costs was fixed by the Registrar pursuant to r 35 of the Court of Appeal (Civil) Rules 2005 (the Rules), in the sum of $5,880.  Mr McGuire was advised of that in a letter dated 22 January 2015, which also advised that under r 35(7) any application for an order under r 35(6) needed to be made within 20 working days of the filing of the notice of appeal.

4. Mr McGuire applied for security to be dispensed with or reduced in a letter dated 12 March 2015.  In his letter he noted that he was a sole practitioner with a modest practice in Palmerston North, that fees had been waived in the High Court and that he would find it “very difficult to pay security for costs of $5,800 [sic] in all of the circumstances.”

5. The Registrar advised the respondent of the applicant’s letter.  Wynn Williams, acting for the respondent, opposed Mr McGuire’s application in a letter dated 19 March.

6. On 7 April 2015 the Registrar wrote to Mr McGuire.  Her letter quoted r 35(6) and (7) of the Rules, noting that the requirement of the latter is that an application to reduce or dispense with security must be made and served within 20 working days after the notice of appeal has been filed.  She pointed out that since the appeal had been filed on 21 January 2015, an application under r 35(6) should have been made by 19 February 2015.  It was not in fact received until 16 March 2015, almost a month outside the time stipulated by the rule.  She said that since the application was out of time, she had no discretion to accept or consider it.

7. The Registrar’s approach was in accordance with the decision of this Court in Orlov v The National Standards Committee No 1.[2]  In that case, Wild J confirmed the mandatory nature of the requirement that such an application be filed within 20 working days. Because in that case the application had been filed more than two weeks outside the 20 working days allowed by the rule, the Registrar had been correct not to entertain the application, and to decline to consider it on its merits.

   [2]Orlov v The National Standards Committee No 1 [2014] NZCA 182, (2014) PRNZ 120.

8. The same position applies in the present case.  There is no basis to reach a different conclusion.

9. I add two further points.  First, Mr McGuire’s application was not accompanied by satisfactory information as to his financial position.  In that respect, apart from the assertions made in his letter of 12 March 2015 summarised above, Mr McGuire has not provided satisfactory financial information in support of his claim to impecuniosity.  With his application to review the Registrar’s decision he has included what appears to be a one-page extract from accounts prepared for the year ended 31 March 2014.  It is unclear who the author of that document is, although there is a disclaimer at the bottom of the single sheet referring to what I assume is a firm of accountants.  The document has been signed only by Mr McGuire, as a certified true and correct copy.  For present purposes, however, the significant point is that it says nothing about his income for the year ended 31 March 2015, which would have been the relevant period for present purposes.

10. Second, had it been necessary to reach the issue, I would not have been persuaded that the appeal which Mr McGuire seeks to proceed is a matter which, in accordance with the approach explained in Reekie v Attorney-General, is one that a solvent appellant would reasonably wish to prosecute.[3]  In this respect, I accept that Mr McGuire succeeded in the High Court on the only ground he raised which had any apparent merit.  As Mr Mackenzie observed for the respondent, the other issues raised and now sought to be pursued on appeal were able to be quickly dismissed by Mallon J.

Result

[3]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [35].

1. In the circumstances, having reviewed the Registrar’s decision, I uphold it and confirm that Mr McGuire is to give security for costs in the sum of $5,880.

2. Mr McGuire sought that if his application did not succeed and he was required to pay security, the time for paying security should be enlarged to within three working days of the date of the hearing.  That would mean that a significant amount of costs would be incurred by the respondent without the benefit of the payment of security.  I am not prepared to accede to that request which would be contrary to the purpose of the requirement for security.

3. I do however enlarge the time for payment of security for costs to Wednesday 3 June 2015 and direct that payment be made by that date.

Solicitors:
Wynn Williams, Christchurch for First Respondent
Crown Law Office, Wellington for Second Respondent