Reekie v Attorney-General
[2019] NZCA 251
•25 June 2019 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA625/2018 [2019] NZCA 251 |
| BETWEEN | NICHOLAS PAUL ALFRED REEKIE |
| AND | ATTORNEY-GENERAL (FOR THE SECRETARY OF JUSTICE) |
| Counsel: | Appellant in person |
Judgment: | 25 June 2019 at 3.00 pm |
JUDGMENT OF BROWN J
(Review of Deputy Registrar’s decision)
AThe application to review the Deputy Registrar’s decision declining to defer or to dispense with security for costs is declined.
BThe appellant is to pay the sum of $6,600 by way of security for costs by 16 July 2019.
____________________________________________________________________
REASONS
Introduction
On 15 October 2018 Mr Reekie filed a notice of appeal (CA625/2018) against a judgment of Collins J delivered on 24 September 2018 ruling that a settlement sum agreed between Mr Reekie and the Attorney-General constitutes “compensation” under the Prisoners’ and Victims’ Claims Act 2005.[1]
[1]Reekie v Attorney-General [2018] NZHC 2496.
In this Court security for costs on the appeal was set at $6,600. On 8 November 2018 Mr Reekie made an application in respect of security for costs under r 35(6) of the Court of Appeal (Civil) Rules 2005 (the Rules). Mr Reekie sought deferral of the date for payment of security for costs until after another appeal (CA684/2018) has been determined. If it should prove necessary for the appeal in CA625/2018 to proceed after the determination of CA684/2018, then Mr Reekie sought dispensation from security for costs in CA625/2018.
Appeal CA684/2018 relates to a decision of Moore J holding that in reaching a decision to award exemplary damages against Mr Reekie the Victims’ Special Claims Tribunal failed to meet procedural requirements in omitting to provide Mr Reekie with a copy of the claim forms lodged by two of his rape victims.[2]
[2]Reekie v Claimants A and B [2018] NZHC 2434.
Because the Deputy Registrar was not satisfied that the determination of CA684/2018 would render the appeal in CA625/2018 moot, Mr Reekie’s request for a deferral of the date by which security for costs were to be paid was declined. The Deputy Registrar also declined the application to dispense with security for costs. Mr Reekie seeks a review of her decision.
Relevant principles
The principles applicable to dispensation from security for costs were reviewed by the Supreme Court in Reekie v Attorney-General.[3] The Court stated that the Registrar should dispense with security if of the view that it is right to require the respondent to defend the judgment under challenge without the usual protection as to costs provided by security.[4] The Court explained:
[35] … we consider that the discretion to dispense with security should be exercised so as to:
(a)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
(b)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.
A reasonable and solvent litigant would not proceed with an appeal which is hopeless. Nor would a reasonable and solvent litigant proceed with an appeal where the benefits (economic or otherwise) to be obtained are outweighed by the costs (economic and otherwise) of the exercise (including the potential liability to contribute to the respondent’s costs if unsuccessful). As should be apparent from what we have just said, analysis of costs and benefits should not be confined to those which can be measured in money.
[3]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.
[4]At [31].
The Court also ruled that the review function of the Judge in relation to security for costs is to be exercised de novo.[5]
Deputy Registrar’s decision
[5]At [23].
Having correctly recited the relevant principles from Reekie the Deputy Registrar noted there was comparatively little authority regarding applications for a deferral of security for costs under r 35(6)(d) of the Rules. She concluded that a similar general principle to that in Reekie should apply: the date by which security must be paid may be deferred if, in the circumstances, it is right to require the respondent to take some steps in defence of the appeal without the protection of security for costs having yet been provided. She considered that as security would still be required by a later (deferred) date, an application for deferral may not require quite as extensive an assessment of factors (such as the merits of the appeal) as an application for dispensation.
The Deputy Registrar recorded that the respondent would not oppose a deferral of security for costs if success in another appeal would clearly render the present appeal moot. However she accepted the respondent’s submission that the issues in CA625/2018 were determined by Collins J precisely because it was severable from the other procedural issues. Hence she was not satisfied that the determination of CA684/2018 would render the present appeal moot and consequently there was no basis for deferring the date by which security for costs must be paid in CA625/2018.
Turning to the Reekie principles the Deputy Registrar accepted that Mr Reekie was impecunious, noting that he is a long serving prisoner and has been regarded as impecunious in other recent cases. She concluded that the potential costs to Mr Reekie of the appeal did not outweigh the potential benefits because if successful he would receive the settlement sum of $4,000 whereas if he failed he would be likely to pay costs of at least $8,920 to the respondent.
The Deputy Registrar saw no error in the High Court judgment which had dismissed all the arguments raised by Mr Reekie.
She therefore concluded that there was no obvious merit in the appeal and that a reasonable and solvent appellant would not proceed with it.
Discussion
Deferral of payment of security for costs
Mr Reekie contends that there were no grounds for the Deputy Registrar’s decision to refuse deferral to pay security. Indeed he submitted that the parties were in agreement that a deferral was appropriate. He maintained that the respondent had clearly stated that it was not opposed to the requirement for security in respect of CA625/2008 being deferred if an appeal against the judgment of Moore J had been filed.
The respondent rejects that contention. He submits that his position was that the application for deferral would not be opposed if it was clear that another appeal, namely CA648/2018, would render CA625/2018 moot.
I accept that the respondent’s version of events is accurate. On this issue his memorandum dated 23 November 2018 stated:
12The appellant notes that the judgment of Moore J is the subject of an appeal, and that if he is successful in that appeal that may render his appeal of Collins J’s decision moot. If it were clear that another appeal may render this appeal moot, then deferral of the payment date for security for costs until after that appeal is determined would not be opposed.
13However, it is not clear why the narrow question answered by Collins J would be affected by an appeal against the judgment of Moore J. Collins J determined the first [part] of the proceeding precisely because it was severable from the second part of the proceeding. Collins J’s judgment essentially turned on the construction of a memorandum of settlement between the Department of Corrections and Mr Reekie, an issue which bears no relation to Mr Reekie’s appeal against the Victims’ Special Claims Tribunal heard by Moore J.
I agree with the analysis in paragraph 13 of the respondent’s memorandum. CA684/2018 appears to involve separate and essentially unrelated issues, namely the procedural steps required by the Prisoners’ and Victims’ Claims Act. The determination of CA684/2018 will not render CA625/2018 moot. Consequently I reach the same conclusion as the Deputy Registrar on the request for deferral of payment of security for costs.
Dispensation from security
It is clear that Mr Reekie is impecunious. The primary questions are whether there is any merit to his proposed appeal and any public interest associated with it. It is necessary to briefly note the circumstances relating to the settlement which was the focus of the judgment under appeal.
In August and October 2016 Mr Reekie, who is serving a sentence of preventive detention for several rapes, filed statements of claim with the Human Rights Review Tribunal. Those claims related to failures by the Department of Corrections to comply with Mr Reekie’s requests for personal information. On 30 March 2017 Mr Reekie and the respondent entered into an agreement to settle his claims in consideration for a payment of $4,000. In the proceeding heard by Collins J Mr Reekie argued that there was no acknowledgment that the $4,000 was “compensation” and therefore that sum should be paid to him and not be made available to the victims of his offending.
I do not discern any error in the reasoning of the judgment under appeal. Furthermore I accept the submission of the respondent that the appeal, which relates to the interpretation of the settlement agreement, concerns a fact-specific issue which does not raise any issues of wider public importance.
There is a further and unusual aspect to the present application. Mr Reekie’s written memorandum in support of his application stated that technically he was entitled to the release of the $4,000 at the moment at which Moore J made an order quashing the Tribunal’s decision. However he noted that despite this he had not sought release of the funds. Indeed he stated that, even if he had sought release, he intended that the sum be paid to one of the claimants in any event. As he explained, that is the reason why the sum is being held by the respondent by consent.
The written submission went on to state:
As the court can see there is absolutely no merit to the appeal for the appellant personally, but it does not follow there is no merit to the appeal itself, when the issues are properly understood and considered correctly, they appear.
If, as Mr Reekie has indicated, it is his intention that the settlement sum should be utilised as a payment to one of his victims, I consider there is no merit to the proposed appeal either for him personally, as Mr Reekie concedes, or in the abstract. Nor do I perceive that there is any issue of public interest involved.
In these circumstances I do not consider that a reasonable and solvent litigant would wish to proceed with the appeal against the judgment. It follows applying Reekie that the application for dispensation should be declined.
Result
The application to review the Deputy Registrar’s decision declining to defer or to dispense with security for costs is declined.
The appellant is to pay the sum of $6,600 by way of security for costs by 16 July 2019.
Solicitors:
Crown Law Office, Wellington for Respondent
0
3
0