An application for leave to appeal a Court of Appeal decision imposing a discretionary $3,000 financial barrier against an impoverished man has been filed with the New Zealand Supreme Court. The Appeal is against a 17 June 2009 Court of Appeal Judgment requiring a poor plaintiff pay the security before his claim will be heard. The Court of Appeal decision is Easton v Broadcasting Commission CA793/2008  NZCA 252.
While the Court of Appeal ruling was a $6,500 reduction from the financial barrier earlier imposed by the Registrar, it is being widely criticised because (1) the Judges recognised the plaintiff was financially impecunious (unable to pay the discretionary order) and (2) the defendant was a Crown entity. Consequently, the Court order amounted to a discretionary order which effectively killed the claim ahead of a fair hearing.
Before the loss of New Zealanders’ right of appeal to the Privy Council in England, it was generally accepted that any discretionary Court order resulting in a bonafide legal claim being nullified before hearing was an unfair restriction to Court access, aka justice. However, since the right to appeal to the Privy Council was abolished by the Supreme Court Act in 2004, the High Court and Court of Appeal have increasingly used security costs orders to manage their case loads. The effect has been more than ironic. Poorer litigants have had their cases dismissed simply because they have been unable to come up with the additional money, while wealthy litigants are exempt from paying.
Mr Easton’s appeal to the Supreme Court is based on this financial incongruity. He alleges this is a breach of equal access to justice, guaranteed by the New Zealand Bill of Rights. His grounds include the increasing court scenario in New Zealand where a Judge is allowed to use discretion to impose the highest security against the poorest parties to litigation. In one case last year, Auckland District Court Judge Roderick Joyce imposed a $20,000 security for costs against a bankrupted litigant before the Court would allow a 3 1/2 hour trial. In that case too, the plaintiff filed a civil rights claim and has appealed directly to the Human Right Commission.
Senior lawyers spoken to for this story claim this is nothing new – and that this legal challenge is long overdue. One explained that, if applied to the world of politics, everyone who voted for Helen Clark last election would be required to pay for the cost of the election before they were allowed to vote, simply because a pollster determined ahead of time she was going to lose. He added it was not difficult to imagine what affect this would have on access to voting. Another pointed to the Taito v the Queen ruling of the Privy Council in 2002, a scathing criticism of legal disregard by New Zealand Judges which many scholars consider was the catalyst for the New Zealand Law Society pushing to dump the Privy Council as an appellate Court of right. The Law Lords of the Privy Council were unreserved in exposing the unacceptable practice of NZ Judges denying legal aid and preventing access to Courts simpy to lighten their workloads.
The sad epilogue to the Taito case is that NZ Judges reacted by shooting the messenger. The fear today is that we are all poorer as a law-respecting democracy because of it. It is now up to the New Zealand Supreme Court to prove these fears are misplaced.