Harriman v Attorney-General

IN THE COURT OF APPEAL OF NEW ZEALAND

CA463/2013
[2013] NZCA 674

BETWEEN	ALLEN LOUIS HARRIMAN Appellant
AND	ATTORNEY-GENERAL First Respondent
NEW ZEALAND PAROLE BOARD Second Respondent

Counsel:

Appellant in person
C A Griffin and L M Inverarity for First Respondent
F M R Cooke QC for Second Respondent

Judgment:

(On the papers)

19 December 2013 at 10.30 am

JUDGMENT OF FRENCH J
(Review of Registrar’s Decision
Re Dispensing with Payment of Security for Costs)

The application for review of the Registrar’s decision refusing to dispense with the payment of security for costs is dismissed.

____________________________________________________________________

REASONS

Introduction

Mr Harriman has filed an appeal against a decision of Goddard J.[1] In the decision, Goddard J dismissed Mr Harriman’s application for judicial review of the actions of the Department of Corrections and the New Zealand Parole Board.
[1]Harriman v Attorney-General [2013] NZHC 1516.
On 30 July 2013 security for costs on the appeal was set at $11,760.
Mr Harriman then applied for security to be dispensed with under r 35(6)(c) of the Court of Appeal (Civil) Rules 2005. The Registrar held that there was nothing in the appeal of public importance or significance and that the circumstances of the appeal could not be considered exceptional. She accordingly decided it was not an appropriate case for dispensation and advised Mr Harriman accordingly in a letter dated 20 September 2013.
Dissatisfied with that outcome, Mr Harriman sought a review of the Registrar’s decision under r 7(2). He has subsequently paid the full amount of the security, but on the basis that he still seeks review and a refund should the review be successful. The Attorney-General opposes dispensation being granted. The Parole Board abides the decision of the Court.

Grounds for review

Mr Harriman contends the Registrar was wrong to find the appeal is not exceptional and lacks public importance. He submits the appeal is exceptional because of factual and procedural errors that have occurred on the part of the Department of Corrections, the Parole Board and the High Court. He further submits the appeal raises important issues of statutory interpretation and important constitutional issues and is arguable. Reliance is also placed on impecuniosity.

Discussion

Mr Harriman is a serving prisoner. He has been considered for parole by the Parole Board on three occasions. Parole was refused on each occasion, the relevant dates being 17 January 2012, 7 August 2012 and 17 July 2013.
The High Court decision that Mr Harriman is seeking to impugn on appeal relates only to the January 2012 decision. The key findings made by Goddard J were essentially case specific and not of any general importance. Further, the findings also concur with findings made by Judge Mahoney in an earlier unsuccessful review of the same decision brought by Mr Harriman under s 67 of the Parole Act 2002. In terms of the merits of the appeal, Mr Harriman faces the further difficulties of there having been two subsequent Parole Board decisions also denying him parole[2] as well as the ongoing lack of a release plan. The merits of the appeal appear very weak.
[2]This Court has previously stated that, in the parole context, judicial review is unlikely to be warranted where alleged errors have been overtaken by subsequent decisions; see for example Miller v New Zealand Parole Board [2010] NZCA 600.
As for impecuniosity, that is obviously an important consideration because of access to justice issues. But impecuniosity is not determinative. Also important is the principle that a respondent should not have to face the risk of a hopeless appeal without provision for security. In any event, Mr Harriman has paid the security.
In my view, there is no reason justifying departure from the normal rule that appellants must pay security for costs. I accordingly uphold the Registrar’s decision.

Outcome

The application for review of the Registrar’s decision refusing to dispense with the payment of security for costs is dismissed.

Solicitors:
Crown Law Office, Wellington for First Respondent

The Court of Appeal of New Zealand heard an appeal from Allen Louis Harriman against the Attorney-General and the New Zealand Parole Board. Harriman sought judicial review of decisions made by the Department of Corrections and the Parole Board concerning his parole applications. The appeal was dismissed by Goddard J in the High Court, and Harriman now appealed against the dismissal and the requirement to pay security for costs. Harriman sought a review of the Registrar's decision that refused to dispense with the payment of security for costs, arguing that the appeal had public importance and was exceptional. The Attorney-General opposed the application, and the Parole Board abided by the court's decision.

The primary legal issue was whether the Registrar's decision was correct in refusing to dispense with the payment of security for costs. Harriman argued that the appeal was exceptional due to factual and procedural errors by the Department of Corrections, the Parole Board, and the High Court. He also submitted that the appeal raised significant issues of statutory interpretation and constitutional importance and was arguable. Harriman further relied on his impecuniosity as a reason for dispensation. The court needed to determine whether the appeal had public importance or significance and whether the circumstances were exceptional enough to warrant dispensing with the payment of security for costs.

The court found that the appeal was not exceptional and lacked public importance. The High Court's findings were case-specific and not of general importance, and they concurred with previous findings in a similar case. The appeal's merits were weak, given that Harriman had faced two subsequent parole denials and lacked a release plan. The court emphasised that judicial review is unlikely in the parole context where alleged errors are overtaken by subsequent decisions. While impecuniosity is an important consideration, it is not determinative. The principle that a respondent should not face the risk of a hopeless appeal without security provision was also considered. Since Harriman had already paid the security, the court upheld the Registrar's decision, dismissing the application for review of the decision on dispensing with the payment of security for costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established