IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA527/2018
 [2019] NZCA 70

	
BETWEEN	
PATRICK JOHN McGREEVY
Appellant	
	
AND	
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
First Respondent

NEW ZEALAND PAROLE BOARD
Second Respondent

CRC LIMITED
Third Respondent	

Counsel:	
A J Bailey for Appellant
K Laurenson for First Respondent	

Judgment:
(On the papers)	
26 March 2019 at 3.30 pm	

JUDGMENT OF CLIFFORD J
(Review of Registrar’s Decision)

A	The application for review of the Registrar’s decision refusing to allocate a hearing date is granted.
B	The appellant does not need to pay security for costs in this appeal.
C	The Registrar is to allocate a hearing date for this appeal.
____________________________________________________________________

REASONS
Background
[1]	Patrick McGreevy, the appellant, unsuccessfully sought judicial review from Mander J in the High Court of the way in which the Department of Corrections implemented an extended supervision order he is subject to.  Mr McGreevy filed an in time appeal against Mander J’s decision on 4 September 2018.  
[2]	On 4 December 2018 counsel for Mr McGreevy — Mr Bailey — filed the case on appeal and requested the allocation of a hearing date.  On 7 December the Registrar declined to allocate a hearing date and advised that Mr McGreevy’s appeal was deemed abandoned.  The Registrar based her decision on the fact that on 4 December Mr McGreevy had not paid security for costs set at $13,200, as he had been advised by the Registrar was required in an email sent to his counsel on 5 September 2018.  
[3]	Mr McGreevy now applies for review of that decision.
Analysis
[4]	In broad terms, an appellant granted legal aid is excused from paying security for costs.  Rule 36 provides, as relevant:
36 	Security for costs: legal aid
(1) 	This rule applies to every appeal in which the appellant has applied for, or been granted, legal aid at the time the appeal is brought.
(2) 	An appellant who has been granted legal aid at the time the appeal is brought does not need to pay security for the respondent’s costs in the Court.
(3) 	An appellant whose application for legal aid has not been determined at the time the appeal is brought does not need to pay security for the respondent’s costs in the Court while that application is pending.
(4) 	As soon as the application is determined, the appellant must promptly give the Registrar and the respondent written advice and proof of the outcome.
(5) 	If the application is granted, the appellant does not need to pay security for the respondent’s costs in the Court.
(6) 	If the application is declined, rule 35 applies to the appeal with the following (and any other necessary) modifications:
(a) 	the time specified in rule 35(3) within which the appellant must pay to the Registrar security for the respondent’s costs in the Court is 20 working days after the date on which the appellant’s application for legal aid is declined; and
(b) 	the time specified in rule 35(7)(a) within which an application to the Registrar may be made for the making of an order under rule 35(6) is 20 working days after the date on which the appellant’s application for legal aid is declined or legal aid is later withdrawn.
[5]	As can be seen, r 36(3) through (5) addresses the situation where an application for legal aid has been made at the time an appeal is brought, but at that time has not been determined.  In those circumstances, the appellant is not required to pay security for costs while that application is pending, but must advise the Registrar once her application is determined.  If the application is granted, the appellant is then relieved of the obligation to pay security for costs.  If not, she must either:
(a)	pay that required security within a further 20 days; or
(b)	within the same time frame, apply for security to be dispensed.
[6]	Mr Bailey had in fact filed — electronically I infer — an application for legal aid for Mr McGreevy on 27 August, before he filed Mr McGreevy’s appeal.  On the same day that application was “returned”, again electronically, as certain information had not been completed.  Mr Bailey was invited to re-submit that application, which he did on 7 November.
[7]	When filing Mr McGreevy’s appeal, Mr Bailey advised that legal aid had been applied for and also sought a fee waiver on Mr McGreevy’s behalf.  The standard application form for fee waiver, as completed by Mr McGreevy, also confirmed that he had applied for legal aid and that his application had yet to be decided.  
[8]	On 5 September a Court Registry Officer emailed Mr Bailey, acknowledging the filing on 4 September of Mr McGreevy’s appeal, advising Mr Bailey — amongst other things — that security for costs had been set at $13,200, that any application to waive or dispense with that requirement should be filed within 20 days of 4 September, and that the case on appeal and hearing date application were to be filed within three months of 4 September.
[9]	On 18 September, before that time period had elapsed, Mr Bailey advised the registrar that legal aid had been granted, copying the Registrar the grant letter of 17 September 2018.  
[10]	On the basis of that grant, Mr McGreevy’s fee waiver application was in turn granted by the Registrar on 26 September.
[11]	On 6 November, the Registrar sent Mr Bailey a standard form letter, reminding him of the 4 December deadline for filing the case on appeal and for applying for a fixture date.
[12]	In her 7 December decision the Registrar would appear to have reasoned because (i) the initial legal aid application had been rejected and (ii) because the grant of legal aid made referred to an application received on 7 September, that in terms of r 36(1) Mr McGreevy had not applied for legal aid at the time his appeal was brought.  Therefore, he was not entitled to the relief from the obligation to pay security for costs provided by r 36.  
[13]	The Registrar then reasoned:
(a)	Mr McGreevy had not paid security for costs as required.
(b)	Rule 37(2) precluded Mr Bailey from applying, when he did, for a hearing date for Mr McGreevy’s appeal.
(c)	No application for a hearing having been made within three months of the date the appeal was brought, that is by 4 December, Mr McGreevy’s appeal was deemed to have been abandoned on that date pursuant to r 43. 
[14]	As can be seen, the interrelationship between the operation between rr 36 and 43 is not straightforward and can produce results which appellants — perhaps naturally — sometimes find confusing.  Having said that, however, I do not find myself able to agree with the Registrar’s reasoning.  In my view, the words, purpose and spirit of r 36 mean that, although Mr McGreevy’s application may have been returned because it did not provide all the required information, it was an application that had been made in terms of r 36(1) before his appeal was brought.  
[15]	It is also significant that:
(a)	Mr Bailey advised the Registrar, as required by r 36(4), that Mr McGreevy’s application had been granted before the time ran out for an application for dispensation from security to be made.  
(b)	On that basis, on 26 September the Registrar granted Mr McGreevy’s application for the filing fee for his appeal to be waived on the basis of impecuniosity.
(c)	Mr McGreevy was, on the basis of the Registrar’s approach, already in default of his obligation to pay security on 6 November when Mr Bailey was advised of the 4 December deadline.  No mention was made of that fact even though, until that “default” was remedied, no application for a hearing date could be made.
[16]	In my view, each of those additional considerations reflect what I consider to be the correct interpretation of the reference in r 36(1) to an application for legal aid having been made at the time an appeal is brought.
[17]	Furthermore, and as the Registrar advised Mr Bailey, Mr McGreevy could pursue his appeal, notwithstanding its deemed abandonment, by:
(a)	applying for and receiving an extension of time pursuant to r 43(2) for the filing of the case on appeal and the application for hearing date; and, 
(b)	on the basis that in these circumstances such an extension is likely to be granted, thereafter address the question of security for costs pursuant to the general provisions of r 35.  
[18]	I cannot envisage any reason why, if Mr McGreevy followed that alternative procedural route, his application for dispensation from an obligation to pay security for costs would not be granted on the basis of his grant of legal aid.  
[19]	For all those reasons I allow Mr McGreevy’s appeal for review of the Registrar’s decision, and direct that:
(a)	Mr McGreevy does not need to pay security for costs in this appeal; and
(b)	the Registrar is now to allocate a hearing date for this appeal. 

Solicitors: 
Patient & Williams, Christchurch for Appellant
Crown Law Office, Wellington for First Respondent