Banks v Attorney-General - [2010] NZCA 342

IN THE COURT OF APPEAL OF NEW ZEALAND

CA101/2010
[2010] NZCA 342
AND BETWEEN KEVIN RAYMOND BANKS

Applicant

ANDTHE ATTORNEY-GENERAL

Respondent

Counsel:E Orlov for Applicant

J C Holden for Respondent

Judgment:2 August 2010 at 10.30 am

JUDGMENT OF ARNOLD J

The application for review of the Registrar’s refusal to dispense with security for costs is declined. The applicant must pay $3,555 by way of security for costs within 20 working days of the date of this decision.
REASONS
Introduction
[1]        The applicant, Mr Banks, has filed an appeal and applied to the Registrar for a dispensation from the requirement to pay security for costs. The Registrar declined to waive security but reduced the amount to $3,555, which is 75 per cent of the sum normally required. This is an application for review of that decision.
Background
[2]        In September 2006 Mr Banks brought a claim against the Attorney-General (as representative of the Ministry of Social Development) for physical, sexual and psychological abuse which he alleged he suffered in 1973 while he was at a Boys’ Home administered by the Department of Social Welfare. The claim comprised several causes of action: negligence, breach of a non-delegable duty, assault and battery, false imprisonment and breach of fiduciary duty. The Attorney-General pleaded that the proceeding was time-barred. Mr Banks then filed an application for leave to bring the claim out of time on “reasonable discoverability” and “disability” grounds.
Reasonable discoverability
[3]        Gendall J held that Mr Banks’ claim was an action in respect of bodily injury, which had a two year limitation period.[1] Mr Banks submitted that leave could be granted to allow the case to proceed as the absolute limitation period of six years had not elapsed since the cause of action accrued.[2]
[1]      Limitation Act 1950, s 4(7).
[2]      Ibid.
[4]        Gendall J noted that a cause of action accrues when all facts necessary to establish the claim are in existence. Where a claim is based on a deliberate tort requiring lack of consent, the cause of action accrues when the plaintiff should have recognised that true consent was not given.[3] Where damage is a required element of the cause of action, such as in negligence, then the cause of action does not accrue until the damage is or should reasonably have been identified as being linked to the events which allegedly caused the damage.[4] The Judge considered it uncertain whether the “reasonable discoverability” approach was available when psychological damage was alleged to arise from physical abuse.[5]
[3]      Banks v Attorney-General [2010] NZAR 264 (HC) at [27].
[4] At [32].
[5] At [33].
[5]        But the Judge did not have to consider this as he found that there was no evidentiary foundation for the claim that Mr Banks could not and did not identify the damage he alleged as being linked to his time in the Boys’ Home. The Judge noted that Mr Banks had lived at the Lake Alice Hospital both before and after the time he was in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Banks v Attorney-General

Details

AGLC: Banks v Attorney-General [2010] NZCA 342
Case: [2010] NZCA 342
Decision Date: 2 August 2010

CaseChat Overview and Summary

In Banks v Attorney-General, the Court of Appeal of New Zealand considered an application for review of the Registrar’s refusal to dispense with the requirement for security for costs in an appeal. The applicant, Mr Banks, sought to challenge the Attorney-General’s decision regarding his claims of physical, sexual, and psychological abuse that he allegedly suffered while at a Boys’ Home in 1973. Mr Banks' claims were time-barred according to the Limitation Act 1950, and the High Court had dismissed his application for leave to bring the claim out of time.

The legal issues before the Court of Appeal were whether the Registrar’s decision to require security for costs should be reviewed, and if so, whether the amount should be reduced or waived. The Court considered the principles governing security for costs, the importance of the issues raised in the appeal, and the public interest in having those issues determined. The Court also evaluated the applicant's financial circumstances and the merits of the appeal.

The Court found that the Registrar was correct in requiring security for costs, as the appeal did not present exceptional circumstances warranting a waiver or reduction. The Court highlighted that the appeal faced significant factual difficulties, as the High Court had already dismissed Mr Banks’ application for leave to bring the claim out of time. Additionally, the Court noted that the appeal did not engage any issue of public interest, and there was no evidence of Mr Banks’ financial position to warrant a reduction or waiver of security.

The Court of Appeal declined the application for review of the Registrar’s refusal to dispense with security for costs. Mr Banks was required to pay $3,555 by way of security for costs within 20 working days of the date of the decision.

Orders