Legal Research
Cases
Reekie v Attorney-General

Reekie v Attorney-General

Link copied

Case Copied 29 May 2014 44 min read

Contents

On this page

IN THE SUPREME COURT OF NEW ZEALAND

SC 47/2013
[2014] NZSC 63

BETWEEN

NICHOLAS PAUL ALFRED REEKIE
Appellant

AND

ATTORNEY-GENERAL
First Respondent

DISTRICT COURT AT WAITAKERE
Second Respondent

SC 102/2013
BETWEEN	NICHOLAS PAUL ALFRED REEKIE Appellant
AND	DEPARTMENT OF CORRECTIONS AND VISITING JUSTICE TO SPRING HILL CORRECTIONAL FACILITY Respondents

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 C R Gwyn and J Foster for Respondents on 27 November 2013 C R Gwyn and R D Garden for Respondents on 5 December 2013 A S Butler and O C Gascoigne as Amicus Curiae
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

[1]Reekie v Attorney-General [2012] NZHC 1867.

[2]Reekie v Chief Executive Officer of the Department of Corrections [2013] NZHC 271.

[3]Reekie v Attorney-General [2013] NZCA 131 (White J); Reekie v Chief Executive of the Department of Corrections [2013] NZCA 422 (Miller J).

[4]Reekie v Attorney-General [2013] NZSC 74.

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…

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.

Keep reading for free

Create a free CaseChat account to read Reekie v Attorney-General and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NZSC 63
Decision Date: 29 May 2014

CaseChat Overview and Summary

This case involved an appeal by Nicholas Reekie against orders for security for costs made by the Registrar of the Court of Appeal in two sets of proceedings he had previously lost at first instance. The appellant, who was unable to satisfy these orders, argued that they prevented him from pursuing his appeals. The Court was required to decide whether the discretion to dispense with security for costs on grounds of impecuniosity should be exercised, and the role of the Registrar and the nature and extent of rights of review.

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