Clarke v Kiwirail Limited - [2020] NZCA 59

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA491/2019
[2020] NZCA 59

BETWEEN	NEIL MARTN CLARKE Appellant
AND	KIWIRAIL LIMITED First Respondent NEW ZEALAND POLICE Second Respondent

Counsel:	Appellant in person M L Campbell and A J W O Lomas for Respondents
Judgment: (On the papers)	16 March 2020 at 11.00 am

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

The application to review the Deputy Registrar’s decision declining to dispense with security for costs is declined. Security for costs of $7,060 is payable by 15 April 2020.

____________________________________________________________________

REASONS

Introduction

On 6 November 2015 Mr Clarke filed a proceeding against the respondent, Kiwirail Ltd, and the New Zealand Police relating to events said to have occurred between 1 January 2000 and 7 November 2009. The proceeding was not served on Kiwirail until 11 June 2019.
On 28 August 2019 Associate Judge Johnston made an order on the application of Kiwirail striking out Mr Clarke’s claim for three reasons:
(a)the claim was time barred;
(b)the delays in commencing and serving the proceeding were an abuse of process; and
(c)the claim against Kiwirail that it made “false complaints” to the police concerning Mr Clarke was not a tenable cause of action.[1]
[1]Clarke v Kiwirail Ltd [2019] NZHC 2127.
On 25 September 2019 Mr Clarke filed a notice of appeal against the strike‑out order. The only ground advanced was that he had not been “given the chance to collate all the information [apparently yet to be received] from Legal Aid, NZ Police, Wellington High Court and Wellington District Court under sections 6 and 12 of the Official Information Act 1982”.
By letter dated 26 September 2019 Mr Clarke was advised by the Registry that security for costs had been set at $6,600 and this was required to be satisfied by 24 October 2019. Mr Clarke made application for dispensation from the requirement to pay security for costs. In a decision dated 26 November 2019 the Deputy Registrar declined the application for dispensation. Mr Clarke now seeks a review of that decision.

Relevant principles

The principles applicable to dispensation from security for costs were reviewed by the Supreme Court in Reekie v Attorney-General.[2] The Court stated that the Registrar should dispense with security if of the view that it is right to require the respondent to defend the judgment under challenge without the usual protection as to costs provided by security.[3] The Court explained:
[35] … we consider that the discretion to dispense with security should be exercised so as to:
(a)preserve access to the Court of Appeal by an impecunious appellant in the case of an appeal which a solvent appellant would reasonably wish to prosecute; and
(b)prevent the use of impecuniosity to secure the advantage of being able to prosecute an appeal which would not be sensibly pursued by a solvent litigant.
A reasonable and solvent litigant would not proceed with an appeal which is hopeless. Nor would a reasonable and…

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.

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Details

Case: [2020] NZCA 59
Decision Date: 16 March 2020 at 11.00 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Neil Martin Clarke against Kiwirail Limited and the New Zealand Police regarding a proceeding filed by Mr Clarke on 6 November 2015. The proceeding, which was not served on Kiwirail until 11 June 2019, pertained to events allegedly occurring between 1 January 2000 and 7 November 2009. Associate Judge Johnston struck out Mr Clarke’s claim against Kiwirail on 28 August 2019, citing the claim as time-barred, the delays in commencing and serving the proceeding as an abuse of process, and the claim that Kiwirail made “false complaints” to the police as not tenable. Mr Clarke filed a notice of appeal against the strike-out order on 25 September 2019, arguing he had not been given the chance to collate all information from various sources under the Official Information Act 1982. The Court reviewed the Deputy Registrar’s decision on 26 November 2019, declining Mr Clarke’s application for dispensation from the requirement to pay security for costs.

The legal issue before the Court was whether the Deputy Registrar correctly declined Mr Clarke's application for dispensation from the requirement to pay security for costs. The principles applicable to this discretion were reviewed in the Supreme Court’s decision in Reekie v Attorney-General. The Court noted that the Registrar should dispense with security if it is right to require the respondent to defend the judgment under challenge without the usual protection as to costs provided by security. The Court also stressed the importance of a de novo review of the decision. Mr Clarke argued that he was on a Work and Income benefit and unable to afford the security for costs. However, he did not provide comprehensive financial information or evidence of his ability to borrow funds or apply for legal aid. The Court also considered the merit of the appeal, finding that there was no realistic prospect of success given the multiple grounds on which the strike-out order was made.

In the Court's reasoning, it found that the Deputy Registrar had correctly applied the relevant principles from Reekie and had correctly calculated the amount of security for costs. The Court agreed with the Deputy Registrar that Mr Clarke had not provided sufficient evidence of impecuniosity and that the appeal lacked merit, involved greater potential costs than benefits, and engaged no issue of public interest. The Court found no error in the Deputy Registrar’s decision and accordingly declined the application to review the decision. The Court emphasised that a reasonable and solvent appellant would not proceed with such a hopeless appeal, and thus there was no justification for requiring Kiwirail to defend the judgment without the usual protection of security for costs. The Court concluded that security for costs of $7,060 was payable by 15 April 2020.

Orders