Reekie v District Court at Auckland

IN THE COURT OF APPEAL OF NEW ZEALAND

CA565/2015
[2016] NZCA 231

BETWEEN

NICHOLAS PAUL ALFRED REEKIE
Appellant

AND

DISTRICT COURT AT AUCKLAND
First Respondent

MHAIRI CATRIONA DUFF
Second Respondent

Counsel:

GDS Taylor for Appellant
M F McClelland QC for Second Respondent

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.

____________________________________________________________________

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

The case of Reekie v District Court at Auckland involves Nicholas Paul Alfred Reekie, who seeks judicial review of a decision made by Toogood J. The crux of the dispute is the refusal of the Deputy Registrar to waive the requirement for Reekie to provide security for costs. The decision under appeal originates from a case where Reekie had won a refund of professional fees in the Disputes Tribunal, a ruling that was subsequently overturned by the District Court. Reekie's appeal against the District Court decision was dismissed by Toogood J, leading him to seek judicial review of this dismissal.

The central legal issue before the court was whether the Deputy Registrar's decision to decline Reekie's application to waive security for costs was justified. The court needed to determine if the appeal raised significant issues that warranted the waiver of security for costs, considering factors such as the interests of justice and the impecuniosity of the appellant. Reekie argued that the appeal involved important issues with reasonable prospects of success, specifically concerning the absence of cross-examination and the lack of direction to Reekie about seeking leave to cross-examine. However, the court had to assess whether these issues were significant enough to justify waiving the requirement for security.

In its judgment, the Court of Appeal found that the issues raised by Reekie were peripheral to the outcome of the case. The court held that even if Reekie were to succeed on these issues, it would not necessarily lead to the overturning of Toogood J's decision. The appeal hinged on the fairness of the hearing and the applicability of the Consumer Guarantees Act 1993, but the court concluded that these were not likely to be grounds for the High Court to intervene on judicial review. Given the evidence on the record, the court determined that a reasonable and solvent litigant would not pursue the appeal. Therefore, the Court of Appeal dismissed Reekie's application to review the Deputy Registrar's decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established