Reekie v Chief Executive of the Department of Corrections
[2013] NZCA 422
•9 September 2013 at 10.00 am (On the papers)
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA170/2013 [2013] NZCA 422 |
| BETWEEN | NICHOLAS PAUL ALFRED REEKIE |
| AND | CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS VISITING JUSTICE TO SPRINGHILL CORRECTIONAL FACILITY |
| Counsel: | Appellant (In person) |
Judgment: | 9 September 2013 at 10.00 am |
JUDGMENT OF MILLER J
(Review of Registrar’s decision)
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.
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REASONS
Introduction
Mr Reekie has filed an appeal from the decision of Rodney Hansen J dismissing his application for judicial review of various decisions of prison authorities and the Visiting Justice at Spring Hill Prison.[1]
Background
[1]Reekie v Chief Executive Officer of Department of Corrections [2013] NZHC 271.
On 15 July Mr Reekie was sentenced to preventive detention with a minimum period of imprisonment of 25 years.[2] The judicial review concerns the circumstances of his imprisonment, particularly the decision to transfer Mr Reekie from Auckland Prison to Spring Hill Prison from 28 February 2012 to 17 August 2012. He was placed in a unit with more onerous conditions than at Auckland Prison. Mr Reekie also alleged various deficiencies in respect of security classification, management plans and directed segregation. Hansen J found that Mr Reekie’s sense of grievance was understandable and well founded and that there was a breach of statutory requirements in failing to give notice of, and reasons for, the transfer. However, the transfer was lawful since it was made for proper reasons and it was not unreasonable.
[2]R v Reekie HC Auckland T021833, 15 July 2003, per Harrison J.
Mr Reekie also challenged the decisions of the Visiting Justice at Springhill. Hansen J dismissed these claims as they lacked substance, did not evidence procedural unfairness, and were not unreasonable.
On 17 March 2013 Mr Reekie filed a lengthy notice of partial appeal against this decision followed on 15 April 2013 by an application for waiver of security for costs and an accompanying memorandum. The grounds of the application are: that the judgment of Hansen J contains substantial errors; factual evidence was ignored; Mr Reekie’s circumstances as a prisoner are exceptional; he is facing extreme financial hardship; and there is public interest in this matter.
The Registrar’s decision
On 17 June 2013 the Registrar of this Court declined the waiver application. The Registrar noted the first respondent’s opposition that it is not in the interests of justice for security to be dispensed, the application is meritless, and the appeal is largely moot. The Registrar then noted that it must be in the interests of justice for security for costs to be waived and there must be exceptional circumstances to do so. Financial hardship alone is not sufficient.
While not commenting on the merits of the appeal the Registrar referred to part of Hansen J’s judgment, which stated:
[81] The effects of these oversights were, of course, relatively short-lived and were of no consequence to the substantive decisions themselves. They are now well and truly spent. A remedy will achieve nothing. In such circumstances, there is no reason to make the declarations sought by Mr Reekie. The Court's role is to resolve live disputes, not to rule on matters that have been rendered of academic importance.
(Footnote omitted.)
The Registrar did not accept that the circumstances of Mr Reekie’s appeal in this matter can be considered exceptional and stated that there is also nothing of public importance in the decision. In arriving at that conclusion the Registrar accepted that Mr Reekie’s financial position is not good. Finally the Registrar noted that security is necessary to protect the respondents in this case in terms of any costs that might be awarded against Mr Reekie if the appeal is unsuccessful.
General principles of security for costs
Security for costs is waived where it is in the interests of justice to do so. To justify waiver there must be exceptional circumstances. As set out in Jong v Yang:[3]
[8] In the normal course, appellants in civil proceedings in this Court are required to pay security for costs.[4] If an appellant wishes to apply to the Registrar for a waiver of security, he or she must do so within 20 days of filing the appeal.[5] The Registrar may vary or waive security “if satisfied that the circumstances warrant it”.[6] A party who is dissatisfied with the Registrar's decision may apply to a Judge for a review of the Registrar's decision. Such an application must be made within 10 working days after the decision,[7] although a Judge may extend that time limit.[8]
[9] Security for costs will be waived where it is in the interests of justice to do so. Given that the normal rule is that security must be provided, there will need to be some exceptional circumstance to justify waiver.[9] The circumstances of the appeal are relevant, in the sense that the appellant must honestly intend to pursue it and it must be arguable – respondents should not face the threat of hopeless appeals without provision for security. The importance of the issues raised in the appeal will be significant, as will the question whether there is any public interest in having them determined.[10] Impecuniousity alone is not usually sufficient to justify a waiver, but may be reason to reduce the quantum of security.[11]
Discussion
[3]Jong v Yang [2010] NZCA 343.
[4]Court of Appeal (Civil) Rules 2005, r 35(2).
[5]Rule 35(3) and (6).
[6]Rule 35(6).
[7]Rule 7(3).
[8]Rule 5(2).
[9]Fava v Zaghloul [2007] NZCA 498, (2008) PRNZ 943 at [9].
[10]Creser v Official Assignee CA196/05, 12 June 2006 at [29].
[11]Fava v Zaghloul at [9]; Easton v Broadcasting Commission [2009] NZCA 252 at [5].
I consider that the Registrar was correct to refuse to dispense with the requirement to pay security for costs.
I observe that Mr Reekie’s application provides no evidence of financial hardship, although that is the basis upon which the application was filed. I am prepared to assume for present purposes that he may be able to show that he cannot pay security, such that without a waiver his appeal will not proceed. But while impecuniosity is an important consideration, it is not enough in itself to require a waiver.
Mr Reekie also submits that his circumstances are exceptional because he is a long-serving prisoner presently subject to preventive detention, and is
self-represented. I do not agree that these matters justify a waiver in the interests of justice.It might be otherwise if the appeal, which concerns his management within the prison system, raised any issue of general or public importance that merit examination by this Court. It does not. I accept that a declaration can vindicate a right and that prisoners’ rights matter, but the breaches of prison regulations which the Judge identified were not serious and the issues are now all moot. I echo the comments of Hansen J set out above at [6]. There is no reason to suppose that, as Mr Reekie would have it, he needs a remedy here to ensure similar incidents do not happen in future.
Mr Reekie contends that, the respondents having behaved badly, they should not get the protection normally afforded by security for costs. I do not agree. Hansen J found that the substantive decisions made in relation to Mr Reekie were lawful and justified. The few breaches that the Judge identified were procedural in nature, and the authorities acted in good faith.
Nor does the appeal appear to have any substantive merit. The notice of appeal complains about almost every aspect of the High Court judgment and the decisions under review, but without identifying any strongly arguable grounds. The theme is that the High Court decision was in every respect unreasonable.
Mr Reekie has noted that an incorrect file number was given on the Registrar’s decision. It is clear from the substance of the decision that it refers to the judicial review application the subject of CA170/2013. Mr Reekie’s submission that the Registrar incorrectly stated the security was previously set at $5,880 is not correct. Security for CA170/2013 was fixed at $5,880 in a letter of 27 March 2013.
Result
The application to review the Registrar’s decision refusing to dispense with security for costs is dismissed. Mr Reekie must pay the sum of $5,880 by way of security for costs within 20 working days of the date of this judgment.
Solicitors:
Crown Law, Wellington for First Respondent
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