Reekie v Attorney-General
[2018] NZHC 2496
•24 September 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-485-000168
[2018] NZHC 2496
UNDER The Judicature Amendment Act 1972, Prisoners’ and Victims’ Claims Act 2005 and the New Zealand Bill of Rights Act 1990 IN THE MATTER OF
Application for Judicial Review
BETWEEN
NICHOLAS PAUL ALFRED REEKIE
Applicant
AND
ATTORNEY-GENERAL (for the SECRETARY OF JUSTICE)
Respondent
Hearing: 17 September 2018 Counsel:
Applicant in person
M J McKillop and J B Watson for Respondent
Judgment:
24 September 2018
JUDGMENT OF COLLINS J
Introduction
[1] The principal issue raised by Mr Reekie’s application for judicial review is whether a settlement sum agreed to by Mr Reekie and the Attorney-General is “compensation” under the Prisoners’ and Victims’ Claims Act 2005 (the Act).
[2] Regrettably, ancillary issues raised by Mr Reekie’s application concerning the procedures followed by the Ministry of Justice (the Ministry) under the Act have had to be adjourned because a judgment in a related proceeding dealing with procedural steps required by the Act was made available just prior to the hearing of Mr Reekie’s
REEKIE v ATTORNEY-GENERAL (for the SECRETARY OF JUSTICE) [2018] NZHC 2496 [24 September 2018]
application.1 An adjournment was necessary to enable the parties, and in particular Mr Reekie, the opportunity to consider what consequences follow from the related judgment. Mr Reekie has indicated he may appeal that judgment. If he does so, a decision from the Court of Appeal may bear on how the procedural aspects of the current application are to be resolved.
Background
[3] In August and October 2016, Mr Reekie, a prisoner who is serving a sentence of preventive detention for several rapes, filed statements of claim with the Human Rights Review Tribunal.
[4] Mr Reekie’s claims related to failures by the Department of Corrections (the Department) to comply with his requests for personal information. The Privacy Commissioner had previously investigated Mr Reekie’s complaints and concluded there had been breaches of his rights under the Privacy Act 1993.
[5] On 30 March 2017, the Attorney-General, acting on behalf of the Department, and Mr Reekie entered into an agreement (the Agreement) to settle his claims against the Department. The relevant parts of the Agreement state:
4The defendant undertakes to pay, in accordance with clause 5, the sum of four thousand dollars ($4,000) … in full and final settlement of the claims …
5The plaintiff acknowledges that pursuant to s 17(1) of the Prisoners’ and Victims’ Claims Act 2005, the sum of $4,000 referred to in clause 4 will be paid to the Secretary for Justice to be dealt with in accordance with the provisions of that Act.
…
7The plaintiff and the defendant acknowledge that there shall be no order sought by any party as to the costs of the proceedings.
…
9The defendant’s agreement to enter into the settlement is made without any admission of legal liability as to damages.
…
1 Reekie v Claimants A and B [2018] NZHC 2434.
[6] Mr Reekie’s arguments rely in part on a letter from counsel for the Department that accompanied the Agreement. In particular, Mr Reekie relies on the heading “without prejudice save as to costs” at the top of counsel’s letter.
[7] Mr Reekie maintains that the $4,000 paid by the Department is not compensation as defined in the Act. I explain the relevant provisions of the Act at [10] to [12]. Suffice for present purposes to record that on a previous occasion Mr Reekie had reached an agreement with the Department in relation to another alleged Privacy Act breach. Under the terms of that agreement it was acknowledged that the settlement sum (then $1,350) was “compensation” and was to be paid to the Secretary for Justice (the Secretary) in accordance with s 17(1) of the Act so that it could be made available to the victims of Mr Reekie’s offending.
[8] In the present case, Mr Reekie argues that there was no acknowledgement that the $4,000 was “compensation” and therefore that sum should be paid to him and not made available to victims of his offending.
The Act
[9] The Act was passed following the High Court’s judgment in Taunoa v Attorney-General, in which compensation was awarded to prisoners unlawfully detained in a segregated behaviour management regime.2 Parliament passed the Act because, as the Minister of Justice said in Parliament:3
Most people, including myself, have a deep sense that it is wrong that serving offenders can be awarded compensation for wrongful treatment without those offenders themselves being required to pay compensation to their victims for the serious wrongs inflicted upon them.
[10] The relevant provisions are contained in subpart 2 of Part 2 of the Act. Section 17(1) provides that any person who becomes liable to pay compensation to a prisoner must pay that money to the Secretary, who applies the money towards settling charges under the Legal Services Act 2011, reparation orders and claims under s 46 of
2 Taunoa v Attorney-General [2004] 8 HRNZ 53 (HC). The damages awards were ultimately reduced by the Supreme Court in Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.
3 (14 December 2004) 622 NZPD 17986.
the Act. Any money remaining is then held by the Secretary in an interest-bearing account.
[11] Victims of offending are required to follow procedures set out in the Act for filing claims against sums held by the Secretary,4 who refers claims to a Victims’ Special Claims Tribunal (the Tribunal) comprising a designated District Court Judge.5 If the Tribunal accepts a victim’s claim it may, after having regard to all other related claims accepted by it, order that an amount of money be paid to the victim under s 46 of the Act.6 In determining the amount to be paid to a victim, the Tribunal must not have regard to the amount of money actually held by the Secretary in the account for the offender.7
[12] Of key importance in this case is the definition of compensation in the Act, the relevant parts of which state:8
compensation—
(a)means any form of monetary compensation or damages (however described) required by a court or tribunal to be paid (including, without limitation, an amount of, or in the nature of, exemplary damages); and
(b)for the purposes only of subpart 2 of Part 2, includes any form of monetary compensation or damages (however described) required to be paid as, or as part of, an out-of-court final settlement of a claim (including, without limitation, an amount paid in final settlement of a claim for an amount of, or in the nature of, exemplary damages); and
…
(d)does not include an amount required or agreed to be paid as, or towards, the costs of making a claim.
4 Prisoners’ and Victims’ Claims Act 2005, s 28.
5 Section 58.
6 Section 46(3).
7 Section 47(1).
8 Section 4, definition of “compensation”.
Prior claims concerning Mr Reekie
[13] Soon after the $1,350 from Mr Reekie’s earlier settlement with the Department was paid into the account managed by the Ministry, notices were issued in daily newspapers advising victims of Mr Reekie’s offending of their entitlement to make claims against the money held in the account. Claims by two victims (A and B) were lodged under the Act.
[14] On 25 August 2017, Judge Blackie, sitting as a Tribunal, concluded pursuant to s 46 of the Act that A and B were victims of Mr Reekie’s offending and that they had suffered injuries and damage for which they were unlikely to receive effective redress. Judge Blackie awarded each victim $25,000 to reflect Mr Reekie’s “outrageous conduct”.
[15] Mr Reekie appealed Judge Blackie’s decision to the High Court. That appeal was allowed by Moore J on 14 September 2018. Moore J was satisfied that the Ministry had committed serious procedural errors when it failed to serve Mr Reekie with the claims by victims A and B and provide him with a reasonable opportunity to respond. Moore J observed:9
… The mandatory requirement that the offender be served a copy of the claim and given a reasonable opportunity to make submissions was not met … In this case, the breach of the rules of natural justice has tainted the Tribunal’s substantive decision.
[16] There is an overlap between the matters addressed by Moore J and the claims of procedural irregularity by Mr Reekie in the present case. In particular, in his current application Mr Reekie claims that the Ministry had miscalculated the statutory time limit for when victims could claim against the $4,000. He also says he was not provided with notification of claims by victims A and B in relation to the $4,000 currently held by the Ministry.
[17] Mr Reekie was unaware of Moore J’s judgment at the commencement of the hearing before me. In those circumstances, I consider it appropriate to confine this decision to a determination of whether or not the $4,000 held by the Ministry is
9 Reekie v Claimants A and B, above n 1, at [31] (footnote omitted).
compensation under the Act. The hearing in relation to the procedural complaints raised by Mr Reekie will, if necessary, be resumed on a later date.
Is the $4,000 compensation under the Act?
[18]Mr Reekie’s submissions can be distilled to the following three points.
[19] First, he observes that the Agreement does not describe the $4,000 payment as “compensation”. Mr Reekie says this is particularly relevant as on the previous occasion that the Department paid $1,350 in settlement of his claims for breach of privacy, the payment was specifically described as “compensation”.
[20] Second, Mr Reekie relies on the statement in cl 9 of the Agreement that the settlement is made without any admission of legal liability as to damages. Mr Reekie, referring to the phrase “compensation or damages” in the definition under the Act, interprets this as meaning that the payment is not “damages”, and so he has not received compensation.
[21] Third, Mr Reekie interprets cl 7 of the Agreement, and the correspondence with counsel for the Department that the $4,0000 payment was made “without prejudice except as to costs”, as meaning the $4,000 was paid as costs, and was therefore excluded from the definition of compensation.10
[22] The first limb to Mr Reekie’s argument is misguided. The relevant definition of “compensation” in s 4 of the Act refers to “monetary compensation or damages (however described) required to be paid as, or as part of, an out-of-court final settlement of a claim”. The words “however described” in the definition clearly rendered it unnecessary to include the word “compensation” in the Agreement. The
$4,000 payment falls within the definition of “compensation” in s 4 because it was a sum “required to be paid as, or as part of, an out-of-court final settlement of a claim”.
[23] I do note, however, a peculiarity about the wording of the definition. There is a potential circularity involved in the use of the phrase “compensation or damages” in
10 Prisoners’ and Victims’ Claims Act 2005, s 4, definition of “compensation”, para (d).
the definition of the word “compensation” (the potential circulatory arises by defining “compensation” as including “compensation”). Ascertaining the text and purpose of the Act, however, overcomes any potential ambiguity.11
[24] The phrase “compensation or damages” appears within the expression “monetary compensation or damages (however described)”, which is a preamble to the part of the definition that explains what kinds of payments are covered by the Act. The use of the word “compensation” appears to be a redundancy that was not intended to limit the scope of the definition. In context, it must be read together with the qualification “however described”. It appears the drafters used the phrase merely to provide examples of words that could be used to describe a payment of money. It is the latter half of the definition that is the operative part. It would be inconsistent with the purpose of the Act, which was to provide victims with the opportunity to make claims against money received by prisoners as redress, to adopt an interpretation that limited the scope of payments covered by the Act.
[25] The second limb of Mr Reekie’s case is also flawed. The statement in cl 9 of the Agreement that it was reached without any admission of legal liability as to damages simply means that although the Department agreed to settle the two claims by paying $4,000 it did so without admitting legal liability. Clause 9 does not detract from the clear effect of the definition of “compensation” in the Act and in particular, the clause cannot be construed as meaning the payment is not compensation as defined in the Act.
[26] The third aspect of Mr Reekie’s claim is also without merit. The fact the $4,000 payment was made “without prejudice except as to costs” cannot be construed as meaning the payment of $4,000 was “costs”. All the words “without prejudice except as to costs” mean is that if the claim had proceeded, the settlement offer would have been communicated to the court as a “Calderbank offer”.12 There is also nothing else in the Agreement to suggest that the payment was for costs as opposed to compensation. In particular, the acknowledgement in cl 5 strongly suggests that the payment was compensation rather than costs.
11 Interpretation Act 1999, s 5(1).
12 See High Court Rules 2016, r 14.10.
[27] For completeness, I record Mr Reekie’s claim that he intended the payment would be treated as costs, and that he had discussed this intention with a representative of the Department. That claim is of no assistance because, ultimately, the objective words of the Agreement must take precedence over a party’s subjective intentions.
Conclusion
[28] Mr Reekie has misinterpreted the Agreement. The Agreement concerned a sum of money that is compensation under the Act.
[29] The parties agree that the $4,000 currently held by the Ministry should continue to be held by the Ministry pending further order of the Court or agreement between the parties. I so direct.
[30] Any issue as to costs can be resolved once the final part of Mr Reekie’s application for judicial review has been heard and determined.
D B Collins J
Solicitors:
Crown Law Office, Wellington
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