Reekie v Attorney General - [2020] NZSC 29

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 135/2019
[2020] NZSC 29

BETWEEN	NICHOLAS PAUL ALFRED REEKIE Applicant
AND	ATTORNEY‑GENERAL (SUED ON BEHALF OF THE DEPARTMENT OF CORRECTIONS) First Respondent ATTORNEY-GENERAL Second Respondent DISTRICT COURT AT WAITAKERE Third Respondent

Court:	Glazebrook and Ellen France JJ
Counsel:	Applicant in person D J Perkins and H F Brockway for First and Second Respondents
Judgment:	6 April 2020

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for leave to appeal is granted.

BThe application for leave to appeal is dismissed.

CThe applicant must pay one set of costs of $250 to the first and second respondents.

____________________________________________________________________

REASONS

Introduction

The applicant, Mr Reekie, applies for leave to appeal against a decision of the Court of Appeal striking out his appeal to that Court.[1] The Court struck out the applicant’s appeal under r 44A(1)(b) of the Court of Appeal (Civil) Rules 2005, which empowers the Court to strike out or stay an appeal if “the appellant has failed to prosecute the appeal with due diligence and dispatch”.
[1]Reekie v Attorney-General (sued on behalf of the Department of Corrections) [2019] NZCA 554 (Kós P, Brown and Clifford JJ) [CA judgment].
The application for leave to appeal was filed a few days after the period for applying for leave had expired.[2] The applicant has explained the reasons for the delay and there is no prejudice to the respondent. We therefore grant the extension of time.

Background

[2]Supreme Court Rules 2004, r 11.

The applicant commenced proceedings in the High Court alleging that he had been unlawfully detained and mistreated in prison in breach of the New Zealand Bill of Rights Act 1990. The applicant had some success in that litigation, obtaining declarations to the effect that the Department of Corrections had acted in breach of s 23(5) of the New Zealand Bill of Rights Act (right of a person deprived of liberty to be treated with humanity and with respect for the inherent dignity of the person).[3]
[3]Reekie v Attorney-General [2012] NZHC 1867 at [290].
The preliminary view of the High Court Judge, Wylie J, was that costs should lie where they fall.[4] Nevertheless, the applicant sought costs of $5,762. In a judgment issued on 24 October 2012, Wylie J awarded the applicant costs of $1,000.[5] Unsatisfied, the applicant appealed the costs decision to the Court of Appeal.
[4]At [293].
[5]Reekie v Attorney-General (sued on behalf of the Department of Corrections) [2012] NZHC 2786.
The applicant also applied for security for costs to be dispensed with. The application was declined by the Registrar. That decision was upheld on review by O’Regan P.[6] O’Regan P considered that no matter of principle arose[7] and that the benefits the applicant sought to obtain via the appeal were “substantially outweighed by the costs of the exercise”.[8] O’Regan P ordered the applicant to pay security for costs no later than 4 September 2014.[9] That deadline was extended…

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] NZSC 29
Decision Date: 6 April 2020

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Mr Nicholas Paul Alfred Reekie sought leave to appeal against the Court of Appeal's decision to strike out his appeal. The Court of Appeal had struck out Mr Reekie's appeal under rule 44A(1)(b) of the Court of Appeal (Civil) Rules 2005, which allows the Court to dismiss an appeal if the appellant has failed to prosecute it with due diligence and dispatch. The Court of Appeal found that Mr Reekie had not advanced his appeal for five years and had not provided an adequate explanation for the delay. The Court of Appeal also noted that the underlying appeal related to a dispute in relation to the quantum of costs awarded, where the amount in dispute was less than $5,000.

The legal issues before the Supreme Court were whether the Court should grant Mr Reekie an extension of time to apply for leave to appeal, and whether Mr Reekie should be granted leave to appeal against the Court of Appeal's decision. The Court found that the application for an extension of time should be granted because the delay was due to the oversight of Mr Reekie's former counsel and there was no prejudice to the respondents. However, the application for leave to appeal was dismissed because the appeal did not give rise to any point of principle and there was no appearance of a miscarriage in striking out the appeal.

The Supreme Court found that the appeal had been dormant for five years and Mr Reekie had not provided an adequate explanation for the delay. The Court also noted that the amount in dispute was less than $5,000 and that there was no risk of a substantial miscarriage of justice in striking out the appeal. The Court found that the reasons advanced by Mr Reekie did not adequately explain a delay of this extent and that there was nothing in his submissions to suggest that security for costs would soon be paid.

The Supreme Court granted the application for an extension of time to apply for leave to appeal but dismissed the application for leave to appeal. Mr Reekie was ordered to pay one set of costs of $250 to the first and second respondents.

Orders