IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA188/2020
 [2020] NZCA 262

	
BETWEEN	
DONNA MARY NEWLANDS
Applicant	
	
AND	
NELSON CITY COUNCIL
Respondent	

Counsel:	
Applicant in person
K E Mitchell for Respondent	

Judgment:
(On the papers)	
29 June 2020 at 10.00 am	

JUDGMENT OF COLLINS J
(Review of Deputy Registrar’s decision)

A	The application for review of the Deputy Registrar’s decision is declined.
B	Security for costs of $7060 is payable by 10 July 2020.
____________________________________________________________________

REASONS
[1]	Ms Newlands applied to dispense with security for costs in relation to an appeal she wishes to pursue.  The Deputy Registrar declined Ms Newlands’ application.  She now seeks to review that decision.
Background
[2]	Ms Newlands faces two charges under the Dog Control Act 1996 (the Act).  Her dog, Baloo, is an American Pitbull Terrier.  He is classified as a menacing dog and is required to be muzzled in public places.  On 17 December 2018, Ms Newlands took Baloo to Cable Bay beach near Nelson.  He was not muzzled and attacked another dog, Jasmine, who subsequently died.  Ms Newlands was charged under s 33EC(1) of the Act for failing to muzzle Baloo in a public place, and under s 57(2) for being the owner of a dog that attacked another domestic animal.  The Nelson City Council (the Council) also seeks an order for Baloo’s destruction under s 57(3) of the Act.
[3]	Ms Newlands sought a pre-trial ruling on whether strict liability is imposed by s 57(2) of the Act.  The District Court Judge declined to make a ruling, considering that it would be best addressed at trial.  Ms Newlands applied for leave to appeal to the High Court on a question of law, namely whether her rights under the New Zealand Bill of Rights Act 1990 (NZBORA) had been breached by the District Court’s decision.  Cull J held that there was no jurisdiction for such an appeal as there had been no pre-trial ruling made by the District Court Judge.  Ms Newlands filed a claim in the High Court seeking orders under the Declaratory Judgments Act 1908 relating to liability under the Act.  The Council successfully applied for the claim to be struck out.  
[4]	Ms Newlands has appealed the strike-out decision to this Court.  Security for costs was set at $7,060.
[5]	In declining Ms Newlands’ application to dispense with security for costs, the Deputy Registrar said that there was insufficient information to support a finding that Ms Newlands is impecunious and that the costs outweighed the potential benefits of the appeal.  The Deputy Registrar also concluded that the merits of the appeal are weak and there is no genuine public interest in the appeal as the relevant law is already settled.
[6]	Ms Newlands seeks a review of this decision.  She submits that the appeal is one of public interest as the issue of strict liability engages the right to be presumed innocent until proven guilty, citing s 25(c) of the NZBORA.  Ms Newlands says it is appropriate to resolve this issue through the Declaratory Judgments Act, as opposed to at trial.  She also says the proceedings are not a collateral challenge on Cull J’s judgment or an abuse of process.
Analysis
[7]	The principles for determining whether security for costs should be dispensed with were reviewed by the Supreme Court in Reekie v Attorney-General.  The Court identified two grounds upon which security for costs could be dispensed with:
(a)	where costs are unlikely to be ordered against the appellant; or 
(b)	where the appellant cannot pay or will suffer severe hardship if payment is required. 
[8]	Impecuniosity is not, in itself, sufficient grounds for dispensing with security.  Security for costs should be dispensed with if “it is right to require the respondent to defend the judgment under challenge without the usual protection as to costs provided by security”.
[9]	The discretion to dispense with security for costs should be exercised so as to preserve access to this Court by an impecunious appellant who is bringing an appeal that a solvent appellant would reasonably wish to prosecute.  However, impecuniosity should not be used to pursue an appeal that would not be sensibly pursued by a solvent appellant.  A solvent appellant would not sensibly pursue an appeal that is hopeless or that involves costs (economic or otherwise) that far outweigh the benefits.
[10]	Ms Newlands has not provided any further information beyond her income to support a finding of impecuniosity.  I see no reason to depart from the Deputy Registrar’s decision on this point.  Ms Newlands has said that she intends to apply for legal aid.  If granted, security for costs will no longer be required.  However, this review cannot be predicated on the basis that legal aid may be granted.
[11]	Turning to the merits of the appeal, I find that there is little prospect of success.  Strict liability under s 57(2) of the Act has been recently considered by this Court.  There is little public interest in further litigating this issue.  The costs of the appeal will likely outweigh any potential benefits and there is therefore no reason to dispense with security for costs.  These conclusions render it unnecessary to consider the abuse of process arguments raised by the Council.
[12]	The Council should not have to defend this appeal without the protection of security for costs.  I agree with the Deputy Registrar’s decision.  
Result
[13]	The application for review of the Deputy Registrar’s decision is declined.  
[14]	Security for costs of $7060 is payable by 10 July 2020.

Solicitors: 
Tasman Law Ltd, Nelson for Respondent