Seager-Buckle v Hurrell

[2013] NZCA 21

IN THE COURT OF APPEAL OF NEW ZEALAND

CA673/2012
[2013] NZCA 21

BETWEEN  SUSAN MARGARET ANGELINA SEAGER-BUCKLE
Appellant

AND  ERIC CLYDE HURRELL AND VIVIENNE MARY HURRELL
First Respondents

AND  CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT
Second Respondent

AND  PAUL MAURICE BUCKLE
Third Respondent

Counsel:         Appellant in person
First Respondents in person
N Gray for Second Respondent
Third Respondent in person

Judgment:      22 February 2013 at 3.00 pm

(On the papers)

JUDGMENT OF STEVENS J – REVIEW OF REGISTRAR’S DECISION RE WAIVER OF SECURITY FOR COSTS

AThe application for review of the Registrar’s decision refusing to waive the payment of security for costs is dismissed.

BThe appellant must pay security for costs in the sum of $5,880.00 in relation to the appeal within 20 workings days of the date of this judgment.

____________________________________________________________________

REASONS

Introduction

1. The appellant has two appeals before the High Court both of which relate to her son, Cajetan Isaac Thomas Seager-Buckle (Cajetan).  The two appeals are:

   (a)Appeal 840 relating to a Family Court decision dated 5 October 2011 whereby the Chief Executive of the Ministry of Social Development was discharged as additional guardian of Cajetan;  and

   (b)Appeal 862 in relation to a decision of the Family Court dated 25 November 2011 whereby an Adoption Order in relation to Cajetan was made in favour of his foster carers, Eric and Vivienne Hurrell.

2. The appellant is self-represented in both appeals.  The High Court has appointed an amicus curiae in both matters with a brief to assist the appellant to prepare her papers for Court and to make any additional submissions as may assist the Court properly to understand the appellant’s perspective on the merits of the appeals.

3. In the course of the two High Court appeals the appellant filed an interlocutory application seeking to adduce further evidence on appeal.  That application was heard by Joseph Williams J who delivered a judgment dismissing the interlocutory applications in respect of both appeals (the High Court judgment).[1]

   [1]      Seager-Buckle v Chief Executive of the Ministry of Social Development [2012] NZHC 1451.

4. The appellant has filed a notice of appeal against the High Court judgment.  She sought to have security for costs dispensed with under r 35(6)(c) of the Court of Appeal (Civil) Rules 2005.  The Registrar determined that it was not an appropriate case for security for costs to be waived.  By letter dated 12 February 2013 the Registrar advised the appellant of her decision and confirmed that security remained set at $5,880.00.

5. The appellant has sought a review of the Registrar’s decision.

Registrar’s approach

1. In reaching her decision the Registrar referred to the fact that the appellant’s application was based on the fact that the appellant had a limited income and limited funds.  Further, the appellant believed that the case involved a matter of public interest.

2. After referring to the relevant authorities the Registrar concluded that on the material supplied the appeal did not raise a question of law that was of significant interest to the public or to a substantial section of the public.  Rather the judgment relates to a set of facts relating only to the appellant.  The Registrar emphasised that security is necessary to protect the respondent party in terms of any costs that might be awarded should the appeal be unsuccessful.

The review and issues involved

1. The appellant has, in her notice applying for the review, reiterated that the appeal is a matter of public interest and raises a number of points of law including issues arising inter alia under the New Zealand Bill of Rights Act 1990.

2. The key feature of this appeal is that it concerns an interlocutory application to adduce further evidence on appeal.  In the High Court judgment Joseph Williams J referred to the well settled principles applicable to an application to adduce new evidence on appeal.  He then carefully analysed the nature of the further evidence that the appellant sought to advance on appeal.  The Judge described how, in each case, the evidence did not meet the test for new evidence.  The Judge made the obvious point that, if there is any merit in the appeal (when eventually heard in the High Court) and further evidence is required, then it would be appropriate to refer the case back to the Family Court for the hearing of such evidence and further consideration.

The applicable principles

1. In the normal course, appellants in civil proceedings are required to pay security for costs.[2]  Security for costs may be waived where it is in the interests of justice to do so.  There must be some exceptional circumstances to justify waiver.[3]  The appellant must honestly intend to pursue the appeal and it must be arguable, as respondents should not face the threat of hopeless appeals without provision for security.  The importance of the issues raised in the appeal will be significant, as will the question whether there is any public interest in having them determined.[4]  Impecuniosity alone is not usually sufficient to justify a waiver, but may be reason to reduce the quantum of security.[5]

Discussion

[2]      Court of Appeal (Civil) Rules 2005, r 35(2).

[3]      Fava v Zaghloul [2007] NZCA 498, (2008) 18 PRNZ 943 at [9].

[4]      Creser v Official Assignee CA196/05, 12 June 2006 at [29].

[5]      Fava v Zaghloul at [9].

1. I consider that the Registrar was right to refuse to dispense with the requirement to pay security for costs.  The present interlocutory appeal raises no particular matter of public interest.  The only factor justifying anything other than a normal amount of security is the appellant’s financial position.  There is no doubt it is not strong.

2. As to the merits of the appeal, the issue of whether, in the context of the appeals in the High Court, further evidence should be heard has been carefully and fully considered in the High Court judgment.  There is nothing about this interlocutory appeal that could be considered to be exceptional.  On the contrary, it appears to be of doubtful merit.

3. In my view the appellant has not raised any exceptional circumstances of the type that would justify departure from the ordinary requirement to pay security for costs.  The second respondent should not have to face the threat of a hopeless appeal on an interlocutory matter without provision for security.

Decision

1. The application for review of the Registrar’s decision is security for costs is dismissed.  Security for costs in the sum of $5,880.00 must be paid into Court within 20 working days of the date of this judgment.  There is no order for costs on this application.

Solicitors:
Crown Law Office, Wellington for Second Respondent