| IN THE SUPREME COURT OF NEW ZEALAND |
| SC 47/2013 [2014] NZSC 63 |
| BETWEEN | NICHOLAS PAUL ALFRED REEKIE |
| AND | ATTORNEY-GENERAL DISTRICT COURT AT WAITAKERE |
| SC 102/2013 | |
| BETWEEN | NICHOLAS PAUL ALFRED REEKIE |
| AND | DEPARTMENT OF CORRECTIONS AND VISITING JUSTICE TO SPRING HILL CORRECTIONAL FACILITY |
| Hearing: | 27 November 2013 and 5 December 2013 |
Court: | Elias CJ, McGrath, William Young, Glazebrook and Arnold JJ |
Counsel: | Appellant in person via video link |
Judgment: | 29 May 2014 |
JUDGMENT OF THE COURT
The appeal in SC 47/2013 and the application for leave to appeal in SC 102/2013 are dismissed.
____________________________________________________________________
REASONS
(Given by William Young J)
An appeal and an application for leave to appeal against orders for security for costs
Nicholas Reekie was the plaintiff in two sets of proceedings that resulted in judgments – one delivered by Wylie J[1] and the other by Rodney Hansen J[2] – which he now wishes to challenge in the Court of Appeal. In both cases, he is faced with orders for security for costs which he cannot satisfy and which will therefore prevent his appeals being heard. These orders were made by the Registrar of the Court of Appeal and the appellant’s subsequent challenges to them were dismissed in judgments issued by single judges of the Court of Appeal.[3] We granted him leave to appeal against one of these judgments – relating to the case heard by Wylie J – and directed that the application for leave to appeal against the other be dealt with at the same time as this appeal.[4]
The security for costs regime in the Court of Appeal
Security for costs – an overview
Security for costs can be required in the High Court and District Court when it appears that an order for costs against the plaintiff might not be able to be enforced (either because of the plaintiff’s foreign residence or impecuniosity).[5] The jurisdiction to require security poses something of a conundrum for the courts. The poorer the plaintiff, the more exposed the defendant is as to costs and the greater the apparent justification for security. But, as well, the poorer the plaintiff, the less likely it is that security will be able to be provided and thus the greater the risk of a worthy claim being stifled.
[5]High Court Rules, r 5.45; and District Court Rules 2009, r 4.20.
Applications for security for first instance proceedings call for careful consideration and judges are slow to make…
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- Case
- [2014] NZSC 63
- Decision Date
CaseChat Overview and Summary
The Court held that the Registrar should only dispense with security if satisfied that it is right to require the respondent to defend the judgment under challenge without the usual protection as to costs provided by security. The Court also held that the discretion to dispense with security should be exercised so as to 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 to 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.
Applying these principles, the Court found that the appellant's appeals did not meet the criteria for dispensing with security for costs. The appellant's appeals were not hopeless, but the likelihood of the Court of Appeal interfering in a substantial way with the findings of fact made by the Judge was at best remote. The Court also found that the appellant had chosen not to apply for legal aid, and had difficulties over legal aid in relation to the proceedings at first instance, but there would have been no impediment to him applying for aid on the appeal. The Court concluded that it would not be just to require the respondents to defend the judgment without security for costs and dismissed the appellant's appeals.
The final orders were that the appeal and the application for leave to appeal were dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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