Review of the Registrar's decision - Gifford

[2021] NZHC 1773

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2021-485-332

[2021] NZHC 1773

IN THE MATTER OF

A review of the Registrar’s decision

regarding an intended proceeding between JAMES GUY GIFFORD and IONA

HOLSTED

On the papers
Judgment:	14 July 2021

JUDGMENT OF MALLON J

Introduction

[1]    Mr Gifford seeks the review of a Registrar decision declining to waive the filing fee for an intended proceeding.

The intended proceeding

[2]    Mr Gifford is a retired teacher. He intends to bring a claim for judicial review against the Secretary of Education in relation to changes regarding fundraising by the proprietors of integrated schools and has forwarded the intended statement of claim and notice of proceeding. He says the Ministry of Education exceeded its authority when it reversed a longstanding interpretation of the Education Act 1989, s 451 (replaced by the Education and Training Act 2020, s 34 of Sched 6), which covers financial contributions. He contends that integrated schools are now permitted by the Ministry to raise funds for any purpose, when previously proprietors could raise funds for buildings and the Board of Trustees could raise funds for teaching and each was to be kept separate. He says that integrated schools are adding a margin to their boarding charges and using that money to fund extra staffing, which he says is a consequence

RE A REVIEW OF THE REGISTRAR’S DECISION [2021] NZHC 1773 [14 July 2021]

of the Ministry of Education reinterpreting the legislation. The Ministry of Education denies any change of interpretation.

The waiver application

[3]    Mr Gifford has requested a waiver of the filing fee for this claim. The grounds for this request were that the claim brings him no personal advantage and is for the public good. He says this is because hundreds of parents are forced to make these payments and his review may force the Ministry to review their interpretation of the legislation regarding donations.

[4]    The application form for a waiver asks the applicant to complete step 4 if the applicant is unable to pay the fee and Mr Gifford wrote “not applicable” across this. At step 5, the form asks whether, if the waiver was refused, the applicant would move forward with the proceeding anyway. Mr Gifford ticked the box to indicate he would start or continue the proceeding anyway. At step 6, he requested that the proceeding be allowed to start or continue while the form was being processed. He said it would be unreasonable if the proceeding did not move forward because parents are paying for something that is not correct/legal and are being denied tax credits they are entitled to.

The Registrar’s decision

[5]    In declining the fee waiver, the Registrar referred to the High Court Fees Regulations 2013, reg 18(2)(b), which provides that a fee can only be waived if the Registrar is satisfied that the proceeding concerns a matter of public interest and is unlikely to be commenced or continue unless the fee is paid. As Mr Gifford had indicated he would start or continue the proceedings if the waiver was declined, the Registrar determined that the second part of the test was not satisfied. The application for a fee waiver was therefore declined.

Review request

[6]    Mr Gifford seeks a review of that decision. He emphasises the public importance of this claim, his efforts to resolve this over six years to no avail, that he is funding this himself without legal aid and that does not seek personal gain from this.

Assessment

[7]Regulation 18 provides for the power of the Registrar to waive fees:

18       Power to waive fees

(1)A person otherwise responsible for the payment of a fee required in connection with a proceeding or an intended proceeding may apply to a Registrar for a waiver of the fee.

(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.

[8]    Mr Gifford indicated on his form that he is able to pay the fee by writing “not applicable” in the section  regarding  those  who  cannot  pay  the  fee.  Therefore  reg 18(2)(a) cannot be relied upon.

[9]    As the Registrar set out, reg 18(2)(b) has two requirements. The first is that the matter is of genuine public interest. Mr Gifford provides arguments in support of this ground, but it is not necessary to determine this because the second requirement is clearly at issue. The second requirement is that the proceeding is unlikely to be commenced or continued unless the fee is waived. The Registrar identified this as the reason for refusing the waiver. Mr Gifford’s arguments do not address this point.

[10]   Under step 5 of the application form, Mr Gifford ticked the box to indicate he would start or continue the proceeding anyway if the waiver was refused. In addition,

Mr Gifford’s determination and persistence is evident in the documents he has provided in relation to his claim and the waiver issue.   All of this indicates that     Mr Gifford is likely to commence or continue this proceeding even if the filing fee is not waived. The Registrar was therefore correct to refuse the request on the basis that reg 18(2)(b)(ii) had not been met.

Result

[11]The application for review is accordingly dismissed.

Mallon J