Reekie v Chief Executive of the Department of Corrections

[2019] NZCA 557

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA170/2013
 [2019] NZCA 557

BETWEEN	NICHOLAS PAUL ALFRED REEKIE Appellant
AND	CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS First Respondent
AND	VISITING JUSTICE TO SPRING HILL CORRECTIONAL FACILITY Second Respondent

Court:	Kós P, Brown and Clifford JJ
Counsel:	Appellant in person D J Perkins for First Respondent No appearance for Second Respondent
Judgment: (On the papers)	14 November 2019 at 11.30 am

JUDGMENT OF THE COURT

AThe appeal is struck out.

BThere is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

1. Mr Reekie is a prisoner serving a sentence of preventive detention.  In 2012, he brought proceedings seeking judicial review of decisions made by the respondents relating to his treatment in prison.  In the judgment under appeal, Rodney Hansen J found that prison authorities had failed to give Mr Reekie proper notice of certain aspects of his treatment but ultimately dismissed the application for judicial review.[1]  Mr Reekie appealed that judgment to this Court.

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

2. Mr Reekie applied for security for costs to be dispensed with.  The Registrar declined that application, a decision upheld on review by Miller J, who ordered him to pay security no later than 7 October 2013.[2]  Mr Reekie sought to appeal that judgment to the Supreme Court.  On 29 May 2014, following a full discussion of the principles applicable to security for costs, that Court declined leave.[3]

   [2]Reekie v Chief Executive of the Department of Corrections [2013] NZCA 422.

   [3]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737. The Supreme Court had earlier granted leave to appeal against the decision of White J in Reekie v Attorney-General [2013] NZCA 131, and that appeal was determined simultaneously with the application for leave to appeal Miller J’s decision.

3. Security for costs was never paid.  Matters briefly appeared to advance in September 2014, when Mr Reekie received an interim grant of legal aid.  A hearing was set down for May 2015, but the grant was eventually refused.  By then, Mr Reekie had filed both the case on appeal and a memorandum requesting the allocation of a hearing date.  The appeal was therefore not deemed abandoned.[4]

   [4]Court of Appeal (Civil) Rules 2005, r 43(1).

4. Without payment of security for costs, the Registrar could not allocate a hearing date.[5]  The appeal therefore lay dormant for several years until, on 9 August 2019, Clifford J issued a minute warning Mr Reekie that the Court intended to consider whether to strike out his appeal pursuant to r 44A of the Court of Appeal (Civil) Rules 2005 for failing to prosecute it with due diligence and dispatch.  The parties were invited to file memoranda.

   [5]Rule 37(2).

5. In a memorandum dated 21 August 2019, Mr Reekie maintained that, notwithstanding the passage of time that has occurred, he had not been idle but had faced a lack of resources and other difficulties associated with his imprisonment.  He also claimed that new and existing evidence had improved his prospects of obtaining a grant of legal aid.

6. For the Chief Executive of the Department of Corrections, Mr Perkins noted that — as with Mr Reekie’s other very old appeal[6] — security for costs had not been paid following years of delay, which had not been adequately explained.  Public interest in the finality of litigation required that the appeal be struck out.

   [6]Reekie v Attorney-General CA763/2012.

7. This appeal has seen no progress for far too long.  Whatever difficulties Mr Reekie may have faced in obtaining resources to pursue the appeal, they do not adequately explain the point that years have passed without him progressing matters. We are satisfied that he has failed to prosecute the appeal with due diligence and dispatch.[7]

   [7]Rule 44A(1)(b).

8. The appeal is struck out.

9. We make no order as to costs.

Solicitors:
Crown Law Office, Wellington for First Respondent