Reekie v Secretary for Justice as the Relevant Successor to the Legal Services Agency
[2011] NZCA 411
•25 August 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA558/2010 [2011] NZCA 411 |
| BETWEEN NICHOLAS PAUL ALFRED REEKIE |
| AND SECRETARY FOR JUSTICE AS THE RELEVANT SUCCESSOR TO THE LEGAL SERVICES AGENCY |
| AND LEGAL AID TRIBUNAL AS THE SUCCESSOR OF THE LEGAL AID REVIEW PANEL |
| AND JUSTICE OF THE HIGH COURT AT AUCKLAND |
| Hearing: 23 August 2011 |
| Court: Ellen France, Randerson and Wild JJ |
| Counsel: Appellant in Person |
| Judgment: 25 August 2011 at 3.30 pm |
JUDGMENT OF THE COURT
AThe application for an extension of time to file the case on appeal is dismissed.
B No order as to costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
By application filed on 25 May 2011, and pursuant to r 43 of the Court of Appeal (Civil) Rules 2005, Mr Reekie seeks an extension of time to file his case on appeal.
Mr Reekie filed his appeal on 1 September 2010. As he has neither applied for a hearing date nor filed his case on appeal, r 43(1) will treat his appeal as abandoned unless he is granted the extension he seeks.
This matter has a long and convoluted history stemming from the compulsory taking of a blood sample from Mr Reekie in prison on 15 May 2001. All that has happened since is chronicled both in the judgment of Keane J,[1] which is the decision under appeal, and in a judgment Arnold J gave in this Court on 22 November 2010[2] dealing with security for the costs of this appeal. No point is served in setting out the background yet again.
[1] Reekie v Legal Servcies Agency [2010] NZAR 617 (HC).
[2] Reekie v Legal Services Agency [2010] NZCA 538.
For two different reasons we decline Mr Reekie’s application for an extension of time. The first reason is that the merits of the proposed appeal are an important factor in considering whether to extend time under r 43(2). Having considered the judgment of Keane J and the submissions made to us, both by Mr Reekie and by counsel for the first and third respondents, we are satisfied that the appeal has no prospect of succeeding. Our reasons are two-fold.
First, and at a general level, at the root of all Mr Reekie’s concerns is the taking of the blood sample mentioned in [3] above. In his submissions Mr Reekie makes it clear that he continues to regard the way in which that blood sample was taken as both forensically defective and in breach of his rights under the New Zealand Bill of Rights Act 1990. Based on those concerns Mr Reekie brought both a criminal appeal and a civil proceeding. He also appealed against the decisions made by the legal aid authorities in respect of both his criminal trial and his civil proceeding. Thus, he took action on three fronts.
On the criminal front, Mr Reekie appealed against the convictions entered against him following his trial in May 2003. In that trial the Crown relied on DNA evidence based on a blood sample taken on 15 May 2001. Mr Reekie abandoned his appeal against conviction in February 2004.[3] So Mr Reekie has exhausted his appeal rights on the criminal front. As Keane J pointed out,[4] it is not open to Mr Reekie, on this appeal, to seek collaterally to challenge his convictions.
[3]Noted in this Court’s judgment on the sentence appeal, R v Reekie CA339/03, 3 August 2004 at [1].
[4]Reekie v Legal Services Agency [2010] NZAR 617 (HC) at [48].
Turning to Mr Reekie’s civil actions, first, he sued the Crown and the doctor who took the blood sample in May 2001. He claimed damages, alleging that the taking of the blood sample constituted both an assault on him and a breach of his rights under the New Zealand Bill of Rights Act. In a judgment she delivered on 22 December 2008, Andrews J dismissed that claim on the basis that it was time barred.[5] The Judge also held the claim lacked merit because any force used to take the blood sample from Mr Reekie was reasonable and was expressly authorised by statute. Further, the doctor who took the sample and the Corrections officers who assisted him all had statutory immunity from suit.
[5] Reekie v Attorney-General [2009] NZAR 304 (HC).
Mr Reekie appealed the decision of Andrews J. He brought that appeal out of time. In declining Mr Reekie an extension of time, this Court held the appeal had no prospect of success. This Court offered this comment about Mr Reekie’s civil proceeding:[6]
… the whole case is extraordinarily trivial. It is effectively about two pin pricks. All that happened was what could fairly be expected when a prisoner refuses to comply with a court order as to the taking of a blood sample.
Thus, Mr Reekie’s civil proceeding also came to an end. Again, we endorse Keane J’s view[7] that it is not open to Mr Reekie to use this appeal to challenge, collaterally, the judgment of Andrews J and that of this Court.
[6] Reekie v Attorney-General [2009] NZCA 598 at [13](e).
[7] At [48].
Mr Reekie’s appeal to the High Court against the Legal Aid Review Panel’s decision upholding the Legal Services Agency’s decision withdrawing legal aid for Mr Reekie’s civil proceeding was dismissed by Asher J, in a judgment delivered on 6 March 2009.[8] Mr Reekie did not attempt to appeal that judgment. Thus, Mr Reekie’s challenge to the decision to withdraw legal aid for his civil proceeding is also at an end. Keane J was right to rule out any prospect of Mr Reekie using this appeal to mount a collateral challenge to the judgment of Asher J.
[8] Reekie v Legal Services Agency HC Auckland CIV-2008-404-6451, 6 March 2009.
Secondly, the present appeal is specifically against the judgment of Keane J we referred to in [3] above. That judgment was given in an application Mr Reekie brought seeking judicial review of the decisions of the Legal Services Agency, the Legal Aid Review Panel and Asher J, the end result of which was that legal aid for Mr Reekie’s civil proceeding was withdrawn. On the ground that those decisions infringed his rights under the New Zealand Bill of Rights Act, Mr Reekie sought a declaration that they were invalid and he also claimed public law compensation. Keane J granted applications by all three defendants and struck out the application for judicial review.
Having considered Mr Reekie’s submissions and those of counsel for the first and third respondents, we are satisfied that this appeal has no prospect of succeeding. Briefly, our reasons are:
(a)Insofar as Mr Reekie’s claim challenged decisions of the Legal Services Agency and the Legal Aid Review Panel, Keane J was right to point out that those challenges had already been dismissed by Asher J in a decision which Mr Reekie did not appeal. Accordingly, as Keane J pointed out, “Asher J’s decision must stand …”.[9]
(b)As Keane J pointed out, and as Mr Reekie accepted in his submissions to us, Asher J has judicial immunity from suit. Mr Reekie suggested that the “State” be substituted as third defendant. We agree with Keane J[10] that substituting the Attorney-General would not cure the untenability of Mr Reekie’s claims.
[9] At [45].
[10] At [49].
The second reason we decline Mr Reekie’s application relates to the security for the costs of this appeal. In his judgment dealing with that, Arnold J declined to review the Registrar’s refusal to waive the requirement that Mr Reekie give security for the costs of his appeal. But Arnold J reduced the amount of that security to $11,120, to be paid within 20 working days. Mr Reekie has not sought leave to appeal the judgment of Arnold J.
Unless and until Mr Reekie has paid that $11,120 security for costs he cannot apply for the allocation of a hearing date for his appeal: r 37(2). Thus, Mr Reekie’s ability to pursue his appeal further hinges on his ability to pay the security for costs.
In an open letter dated 25 November 2010 addressed to Arnold J, Mr Reekie stated “I cannot afford the reduced security for costs”. In the course of his submissions Mr Reekie confirmed he was unable to pay the security himself, and told us his only prospect was to find someone willing to back his cause by paying the security. If this were a realistic possibility, it could be expected that Mr Reekie would have located a backer during the approximately 160 working days that have elapsed since Arnold J fixed the reduced amount of security that must be paid. As it seems most unlikely that Mr Reekie will be able to pay the security for costs, there is no point in granting him an extension of time to file his case on appeal.
For those reasons Mr Reekie’s application for an extension of time to file the case on appeal is dismissed.
Neither the first or third respondent sought costs, presumably because any order would be pointless. Accordingly, we make no order as to costs.
Solicitors:
Bartlett Partners, Wellington for First Respondent
0