Reekie v District Court at Auckland
[2016] NZCA 231
•27 May 2016 at 2.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA565/2015 [2016] NZCA 231 |
| BETWEEN | NICHOLAS PAUL ALFRED REEKIE |
| AND | DISTRICT COURT AT AUCKLAND MHAIRI CATRIONA DUFF |
Counsel: | GDS Taylor for Appellant |
Judgment: (On the papers) | 27 May 2016 at 2.00 pm |
JUDGMENT OF MILLER J
(Review of Registrar’s decision)
The application to review the Deputy Registrar’s decision declining to dispense with security for costs is dismissed.
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REASONS
Before me is Mr Reekie’s application for review of the Deputy Registrar’s decision dated 22 April 2016 dismissing his application to waive security for costs.
The judgment under appeal is that of Toogood J in Reekie v District Court at Auckland.[1] Mr Reekie had won in the Disputes Tribunal an order that Dr Duff refund professional fees for preparing a report, and that decision was overturned in the District Court.[2] Mr Reekie then sought judicial review of the District Court decision. Toogood J dismissed the application.
[1]Reekie v District Court at Auckland [2015] NZHC 2045, [2015] NZAR 1685.
[2]Duff v Reekie DC Auckland CIV 2013-004-1776, 26 May 2014.
The criterion for exercise of the Registrar’s jurisdiction to waive security is the interests of justice.[3] Impecuniosity is an important but not necessarily dispositive consideration. The Court must also consider whether a reasonable and solvent litigant would pursue the appeal.[4]
[3]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.
[4]At [35].
Mr Reekie is a serving prisoner without resources, it appears. I am prepared to accept that he lacks the means to pay security. The Registrar took the same view.
It is said that the appeal raises important issues with respect to which there are reasonable prospects of success. The first issue is whether there ought to have been cross-examination before Toogood J, notwithstanding that this was a judicial review application. The second and related issue is whether as a self-represented litigant, Mr Reekie ought to have been told by the Judge that he might seek leave to cross-examine.
As to this, I agree with counsel for the respondent, and the Registrar, that the issues are of peripheral significance in this case. Put another way, even if Mr Reekie were to succeed on these issues he would not succeed in overturning Toogood J’s decision.
By way of elaboration, the questions on appeal to the District Court were whether the hearing was unfair and whether the Referee had jurisdiction to decide that the Consumer Guarantees Act 1993 applied. In a carefully reasoned decision Judge Harrison noted that the Referee appeared to misunderstand the case for Ms Duff and the context in which her reports were prepared. He also held that the hearing was unfair because the Referee misunderstood the circumstances which had led to Ms Duff not appearing at the hearing. The Judge’s decision that the process adopted by the Referee was unfair is not one that the High Court would lightly interfere with on judicial review. The outcome, after all, was merely that a hearing should be held in the District Court, a more suitable forum. Toogood J found that there was evidence on which Judge Harrison might reasonably conclude that Dr Duff had not received notices from the Disputes Tribunal, or adequate time to prepare. Given this evidence, which is apparent on the face of the record, it is not at all likely that the High Court would have permitted cross-examination, which is exceptional in judicial review proceedings.
For these reasons, I do not accept that a reasonable and solvent litigant would pursue this appeal.
The application to review the Deputy Registrar’s decision declining to dispense with security for costs is dismissed.
Solicitors:
Asco Legal, Auckland for Appellant
Crown Law Office, Wellington for First Respondent
DLA Piper, Wellington for Second Respondent
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