REEKIE v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZCA 557 [14 November 2019]

REEKIE v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZCA 557[14 November 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA170/2013[2019] NZCA 557BETWEEN NICHOLAS PAUL ALFRED REEKIEAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSFirst RespondentAND VISITING JUSTICE TO SPRING HILLCORRECTIONAL FACILITYSecond RespondentCourt: Kós P, Brown and Clifford JJCounsel: Appellant in personD J Perkins for First RespondentNo appearance for Second RespondentJudgment:(On the papers)14 November 2019 at 11.30 amJUDGMENT OF THE COURTA The appeal is struck out.B There 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 respondentsrelating to his treatment in prison. In the judgment under appeal, Rodney Hansen Jfound that prison authorities had failed to give Mr Reekie proper notice of certainaspects of his treatment but ultimately dismissed the application for judicial review.1Mr Reekie appealed that judgment to this Court.[2] Mr Reekie applied for security for costs to be dispensed with. The Registrardeclined that application, a decision upheld on review by Miller J, who ordered himto pay security no later than 7 October 2013.2 Mr Reekie sought to appeal thatjudgment to the Supreme Court. On 29 May 2014, following a full discussion ofthe principles applicable to security for costs, that Court declined leave.3[3] Security for costs was never paid. Matters briefly appeared to advance inSeptember 2014, when Mr Reekie received an interim grant of legal aid. A hearingwas set down for May 2015, but the grant was eventually refused. By then, Mr Reekiehad filed both the case on appeal and a memorandum requesting the allocation ofa hearing date. The appeal was therefore not deemed abandoned.4[4] Without payment of security for costs, the Registrar could not allocatea hearing date.5 The appeal therefore lay dormant for several years until, on9 August 2019, Clifford J issued a minute warning Mr Reekie that the Court intendedto 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] 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 hadfaced a lack of resources and other difficulties associated with his imprisonment. Healso claimed that new and existing evidence had improved his prospects of obtaininga grant of legal aid.1 Reekie v Chief Executive Officer of the Department of Corrections [2013] NZHC 271.2 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 earliergranted leave to appeal against the decision of White J in Reekie v Attorney-General [2013] NZCA131, and that appeal was determined simultaneously with the application for leave to appealMiller J's decision.4 Court of Appeal (Civil) Rules 2005, r 43(1).5 Rule 37(2).[6] For the Chief Executive of the Department of Corrections, Mr Perkins notedthat — as with Mr Reekie's other very old appeal6 — security for costs had not beenpaid following years of delay, which had not been adequately explained. Publicinterest in the finality of litigation required that the appeal be struck out.[7] This appeal has seen no progress for far too long. Whatever difficultiesMr Reekie may have faced in obtaining resources to pursue the appeal, they do notadequately 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 anddispatch.7[8] The appeal is struck out.[9] We make no order as to costs.Solicitors:Crown Law Office, Wellington for First Respondent6 Reekie v Attorney-General CA763/2012.7 Rule 44A(1)(b).