Clarke v Kiwirail Limited
[2020] NZCA 59
•16 March 2020 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA491/2019 [2020] NZCA 59 |
| BETWEEN | NEIL MARTN CLARKE |
| AND | KIWIRAIL LIMITED |
| Counsel: | Appellant in person |
Judgment: | 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.
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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 solvent litigant proceed with an appeal where the benefits (economic or otherwise) to be obtained are outweighed by the costs (economic and otherwise) of the exercise (including the potential liability to contribute to the respondent’s costs if unsuccessful). As should be apparent from what we have just said, analysis of costs and benefits should not be confined to those which can be measured in money.
[2]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.
[3]At [31].
The Court also ruled that the review function of the judge in relation to security for costs is to be exercised de novo.[4]
The Deputy Registrar’s decision
[4]At [23].
The Deputy Registrar commenced by noting that the correct amount of security for costs in this matter was $7,060, not the figure of $6,600 previously advised to Mr Clarke.[5]
[5]As a consequence of the High Court Amendment Rules 2019, from 1 August 2019 the default rate of security for costs increased to $7,060.
Having correctly recited the relevant principles from Reekie, the Deputy Registrar recorded that no financial information had been provided in support of the application to enable a finding of impecuniosity to be made. So far as the merits of the appeal were concerned the Deputy Registrar saw no realistic prospect of Mr Clarke overcoming any of the three bases of strike-out. She noted that the notice of appeal contained only one ground of appeal which went to the issue of delay in prosecuting the claim but did not offer any explanation for the delay of nearly ten years since the alleged events.
The Deputy Registrar considered that the potential costs of the appeal outweighed the potential benefits and that no element of public interest arose. She concluded:
[17] Mr Clarke has not provided evidence to establish his impecuniosity. However, even if he had, I consider there is nothing exceptional in the circumstances that could justify dispensing with security for costs. The appeal seems to lack merit, to involve greater potential costs than benefits, and to engage no issue of public interest. There is consequently no point in requesting further financial information from Mr Clarke.
[18] In my view, it would not be right to require Kiwirail to defend the decision under appeal without the normal amount of security for its costs. The evidence of Mr Clarke refusing to pay a previous costs order further supports this conclusion.
Discussion
In a document described as an appeal against security for costs filed on 18 December 2019, Mr Clarke stated that he is on a Work and Income benefit and, he having no capital, cannot afford to pay security for costs. He submitted that his claim is based on information to be provided by Legal Aid Services, the police and the Department for Courts and he made reference to the judgment in Lowrie v Hutt City Te Awa Kairangi.[6]
[6]Lowrie v Hutt City Te Awa Kairangi [2019] NZHC 359, [2019] NZAR 620.
In a memorandum filed on 16 January 2020 counsel for Kiwirail submitted that the application identified no error in the Deputy Registrar’s decision and submitted that the Deputy Registrar correctly applied settled law in Reekie.
Although Mr Clarke has submitted a copy of a Ministry of Social Development letter providing a breakdown of his weekly income support, he has not provided any of the broad range of financial information usually sought by the Deputy Registrar,[7] nor has he provided any information about his ability to borrow funds or apply for legal aid.
[7]Noted at [8] of her decision.
However, quite apart from the issue of impecuniosity, I reach the same view as the Deputy Registrar that there is no realistic prospect of Mr Clarke succeeding on an appeal against the strike-out order having regard to the multiple bases on which the order was made. I am satisfied that a reasonable and solvent appellant would not proceed with such an appeal which I consider to be hopeless. In those circumstances there is no justification for requiring Kiwirail to defend the judgment under challenge without the usual protection as to costs which security provides.
I agree with the submission for Kiwirail that the Lowrie decision has no apparent relevance to the matters in issue on the current review.
Result
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.
Solicitors:
Crown Law Office, Wellington for Respondents
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