Reekie v Attorney-General - [2013] NZCA 131

IN THE COURT OF APPEAL OF NEW ZEALAND

CA532/2012
[2013] NZCA 131

BETWEEN NICHOLAS PAUL ALFRED REEKIE
Applicant

AND THE ATTORNEY-GENERAL (SUED ON BEHALF OF THE DEPARTMENT OF CORRECTIONS)
First Respondent

AND THE ATTORNEY-GENERAL
Second Respondent

AND THE DISTRICT COURT AT WAITAKERE
Third Respondent

Counsel: Applicant in person
J Foster for Respondents

Judgment: 6 May 2013 at 3.00 pm

(On the papers)

JUDGMENT OF WHITE J

(Review of Registrar’s decision refusing to dispense with security for costs)

AThe application to review the Registrar’s decision refusing to dispense with security for costs is dismissed.
BThe applicant is to pay the sum of $5,880 by way of security for costs within 20 working days of the date of this judgment.
____________________________________________________________________

REASONS

Background

The applicant, Mr Reekie, has filed an appeal against a judgment of Wylie J in the High Court at Auckland,[1] an application for an extension of time to appeal, and an application for review of the decision of the Registrar of this Court declining his application for a dispensation from the requirement to pay a security for costs.[2]
[1] Reekie v Attorney-General [2012] NZHC 1867.
[2] Court of Appeal (Civil) Rules 2005, r 35(6)(c).
Mr Reekie’s application for an extension of time to bring his appeal has not yet been heard by this Court.
Mr Reekie was partly successful in his High Court proceeding for declarations and damages for alleged unlawful imprisonment and treatment while in prison. Wylie J found that some aspects of his treatment and conditions of imprisonment (in 2002–2003 in the old High Care Unit in Auckland Prison) breached his rights under s 23(5) of the New Zealand Bill of Rights Act 1990 and declarations to this effect were made, but no compensation was awarded. Wylie J dismissed an allegation that the appellant had been tortured whilst being placed on a tie-down bed, as he could not conclude the alleged torture described by Mr Reekie occurred. Wylie J also found that Mr Reekie had not been falsely imprisoned when he had been remanded pursuant to an oral order made in Court for which a warrant was not issued until some weeks later.
Mr Reekie’s initial notice of appeal was defective, but he was permitted to file an amended notice which was also filed late. This led to the application for an extension of time to appeal.
On 11 March 2013 the Registrar of this Court declined Mr Reekie’s application to waive security for costs. The Registrar noted that the only ground for the application was that previous fee waiver grants had been made in this proceeding on the grounds of financial hardship and that Mr Reekie’s circumstances had not changed. The Registrar also noted that the respondents opposed the application on the basis that impecuniosity was not in itself a ground for dispensation, and that the case had no merit and there were no exceptional circumstances warranting waiver. The Registrar then noted the requirement that it must be in the interests of justice for security…

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: [2013] NZCA 131
Decision Date: 6 May 2013

CaseChat Overview and Summary

Nicholas Paul Alfred Reekie applied to the Court of Appeal of New Zealand for a review of the Registrar's decision to refuse to dispense with the requirement to pay security for costs. The Registrar had previously declined Mr Reekie's application to waive security for costs in his appeal against a judgment of Wylie J in the High Court at Auckland, where he was partly successful in his proceeding for declarations and damages for alleged unlawful imprisonment and treatment while in prison. The Court of Appeal was required to determine whether the Registrar's decision was correct and if Mr Reekie's application for a review should be granted.

The legal issue before the Court of Appeal was whether the Registrar was correct in refusing to waive the security for costs. The Court considered whether Mr Reekie's circumstances warranted a waiver, given that impecuniosity alone is not usually sufficient to justify such a waiver. The Court also assessed whether the appeal raised issues of public importance or contained any matter of significant legal principle, justice or public interest that required reconsideration. Furthermore, the Court evaluated the prospect of success of Mr Reekie's appeal.

The Court found that the Registrar was correct in refusing to waive the security for costs. Mr Reekie had not provided sufficient evidence of his financial hardship, and even if he was impecunious, that alone would not be a sufficient reason for a waiver. The Court held that exceptional circumstances are required to justify a waiver of security for costs. Additionally, the appeal did not raise issues of public importance or contain any matter of significant legal principle, justice or public interest that required reconsideration. The appeal had little prospect of success, as it was based on the sole ground that the trial judge's assessment of the evidence was unreasonable, without identifying any specific errors of law. The Court dismissed the application to review the Registrar's decision, and Mr Reekie was ordered to pay the sum of $5,880 by way of security for costs within 20 working days of the date of the judgment.

Orders