Genge v Visiting Justice at Christchurch Men's Prison

[2018] NZCA 121

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA113/2018
 [2018] NZCA 121

BETWEEN	RICHARD GENGE Applicant
AND	THE VISITING JUSTICE AT CHRISTCHURCH MEN’S PRISON & ORS Respondent

Judgment:
(On the papers) 24 April 2018 at 2.30 pm

JUDGMENT OF GILBERT J

The application for review of the Registrar’s decision is declined.

____________________________________________________________________

REASONS

1. Richard Genge is serving a life sentence having been convicted of murder and rape.  He has been a prisoner for over 24 years. 

2. On 17 October 2013, Mr Genge was convicted by a Visiting Justice of behaving in an offensive, threatening and intimidating manner towards a prison doctor, an offence contrary to s 128(1)(c) of the Corrections Act 2004.  Mr Genge has long since served the penalty imposed for this offence, being 10 days loss of privileges. 

3. In 2017, Mr Genge sought judicial review of the Visiting Justice’s decision on various grounds including that there had been a breach of natural justice because he was not notified of the date of the hearing until the day before the hearing and he was unable to arrange the attendance of a material witness.  Gendall J dismissed Mr Genge’s application for judicial review in a judgment delivered on 15 December 2017.[1]  Although the Judge found that none of the grounds of review was made out, he considered that the Visiting Justice’s decision to proceed with the hearing in the absence of a material witness only survived scrutiny by “a reasonably fine margin”.[2] 

   [1]Genge v The Visiting Justice at Christchurch Men’s Prison [2017] NZHC 3168.

   [2]At [66].

4. In a further judgment delivered on 8 February 2018, Gendall J ordered Mr Genge to pay costs of $22,087.21.[3] 

   [3]Genge v The Visiting Justice at Christchurch Men’s Prison [2018] NZHC 70.

5. Mr Genge has not appealed against the substantive judgment dismissing his application for judicial review.  However, he has lodged an appeal against the costs judgment on the grounds that he cannot afford to pay these costs.    He notes that he has not previously been required to pay costs in other proceedings against the Department of Corrections where he has sought judicial review.

6. Security for costs on the present appeal has been set at $6,600.  Mr Genge applied to the Registrar pursuant to r 35(6)(c) Court of Appeal (Civil) Rules 2005 for an order dispensing with the requirement to pay security for costs.  This application was declined for reasons summarised as follows: 

   [24]     Although Mr Genge is a long-term prisoner earning negligible income, I am unable to determine that he is impecunious because I have no information about any assets he may have or whether any family members may be able to assist him financially.

   [25]     Even if Mr Genge did satisfy me that he is impecunious, there do not appear to be any exceptional circumstances to justify dispensing with security for costs.  While the potential benefits of the appeal may outweigh the potential costs, the appeal raises no matters of public interest and its merits are weak.  Mr Genge has also not applied for legal aid.

   [26]     In all the circumstances, I do not consider it would be right to require the respondents to defend the judgment under appeal without the usual amount of security for their costs.

7. Mr Genge now applies for a review of the Registrar’s decision. The review is to be conducted by a Judge pursuant to r 7(2) of the Court of Appeal (Civil) Rules.  In undertaking the review, the Judge is required to consider the matter afresh.[4]  The question is whether it would be right to require the respondents to defend the judgment in their favour, which Mr Genge seeks to challenge, without having the usual protection provided by security for costs.  Security may be dispensed with if necessary to preserve access to the Court of Appeal by an impecunious appellant in circumstances where a solvent appellant would reasonably wish to prosecute the appeal.  A failure to seek legal aid is relevant.

   [4]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.

8. Mr Genge has shown that he is impecunious.  He is a long-term prisoner and is currently earning $2.70 per week.  He has explained why he has not sought legal aid for his appeal — he mistrusts lawyers and considers that his legal representation over time has been inadequate.  However, I agree with the Registrar that the appeal has little prospect of succeeding, particularly because the substantive judgment is not challenged.  The normal rule is that costs follow the event.  The fact that an unsuccessful plaintiff may not be able to meet these costs is not generally relevant.  I do not consider that the appeal is one that a solvent litigant would reasonably wish to prosecute.  I am not persuaded that the Registrar was wrong.  I agree with her assessment that it would not be right to require the respondents to defend the judgment under appeal without the usual protection for costs provided by security. 

Result

1. The application for review of the Registrar’s decision refusing to dispense with security for costs on the appeal is declined.

Solicitors:
Crown Law Office Wellington, for Respondents