REEKIE V LEGAL SERVICES AGENCY HC AK CIV 2009-404-003727

REEKIE V LEGAL SERVICES AGENCY HC AK CIV 2009-404-003727 17 August 2010IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2009-404-003727BETWEEN NICHOLAS PAUL ALFRED REEKIE Plaintiff AND LEGAL SERVICES AGENCY First Defendant AND LEGAL AID REVIEW PANEL Second Defendant AND JUSTICE OF THE HIGH COURT AT AUCKLAND Third Defendant Hearing: 6 August 2010 Appearances: Plaintiff in person R M Taylor for First & Second Defendants T J Warburton for Third Defendant Judgment: 17 August 2010JUDGMENT OF KEANE JThis judgment was delivered by Justice Keane on 17 August 2010 at 2.30pm pursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy Registrar Date:Solicitors: R Bartlett & Partners, Wellington for First Defendant Legal Aid Review Panel, Auckland for Second Defendant Crown Law Office, Wellington for Third Defendant Copy to N P A Reekie, P.O. Box 50-124, Albany, Auckland 0752[1] Nicholas Reekie is serving a sentence of preventive detention with a minimum term of 20 years, imposed on 15 July 2003 after trial, in respect of sexual offending against four complainants. The 20 year minimum term was substituted on appeal for a 25 year term. Mr Reekie had previously abandoned any appeal against conviction. [2] At Mr Reekie's trial the Crown relied in evidence on a DNA sample taken from him compulsorily on 15 May 2001, while he was serving an earlier prison sentence. Mr Reekie sued the Attorney-General, on behalf of the Department of Corrections, alleging that this constituted an assault on him and a breach of his rights under the New Zealand Bill of Rights Act 1990 (NZBORA). On 22 December 2008, following a hearing at which he represented himself, his claim was dismissed. It was held to be time barred but also lacking in merit. On 15 December 2009 the Court of Appeal declined as meritless Mr Reekie's application to appeal out of time. [3] In this present application for judicial review Mr Reekie seeks a declaration that the decisions of the Legal Services Agency, the Legal Aid Review Panel and the Judge of this Court on appeal, who upheld the Panel's ultimate decision vindicating the Agency's decision to withdraw aid, infringed his various rights under the NZBORA, and that those decisions are invalid. He seeks an order quashing them and public law compensation: compensatory and exemplary damages, in each case of not less than $100,000. [4] The Legal Services Agency seeks an order striking out the pleadings and dismissing the action, as the claim relates to it, contending that the pleadings disclose no reasonably arguable cause of action, and that the claim is vexatious and an abuse of process. Mr Reekie seeks by this claim, the Agency contends, to challenge decisions already taken that are now beyond challenge. The Legal Aid Review Panel takes essentially the same stance but abides the decision of the Court. [5] The Judge of this Court, who is the third defendant, seeks also to have the statement of claim struck out as it relates to him and on two grounds. One is that Judges of this Court cannot be reviewed judicially by this Court and, moreover, are immune from suit. The other is that this action constitutes an abuse of process. It is acollateral attack on his decision upholding the Panel, which Mr Reekie never sought to appeal. Mr Reekie concedes the first point. He seeks to substitute as third defendant the Attorney-General. In the case of the related causes of action, therefore, the issue is now solely the second: whether Mr Reekie is seeking to revisit vexatiously and abusively decisions adverse to him that are beyond challenge. [6] To resolve that single but multifaceted issue I will take the narrative of events principally from Mr Reekie's statement of claim. But not exclusively. His narrative omits some essential indisputable aspects of the record; and, as I shall say shortly, on applications to strike out applications for judicial review, whether for untenability or abuse of process, this Court is not confined to the pleadings.Critical events[7] On 30 April 2001, as Mr Reekie narrates in his statement of claim, a Databank Compulsion Order was made against him in the Waitakere District Court. He was then serving a three year sentence for aggravated assault and burglary. The sample was taken from him by a medical practitioner, while he was being restrained by prison officers; as he contends still by an unlawful exercise of force. [8] On 22 April 2002, Mr Reekie, acting through lawyer A, sought a grant of legal aid to pursue a civil claim arising from the taking of the sample. He obtained an interim grant so that his lawyer could investigate his prospects of success. On 30 August 2002, lawyer A advised the Agency that success was a 'very strong possibility'. In a letter on 23 September 2002, he added, the test case he envisaged could be crucial. By then Mr Reekie had been charged with some at least of the offences of which he was later convicted. The Crown was to rely at trial on the DNA sample. [9] On 24 September 2002 the Legal Services Agency declined Mr Reekie's application and said this:We believe there are no ... prospects of success. The presence of the police officer whilst the medical practitioner was taking the blood sample wassufficient compliance with the requirement of the relevant provisions of the Act. The opinion provided is seriously deficient. It should have included the provisions of the Act alleged to have been breached with an analysis of each of the elements required to be proved and a summary of the evidence available as proof. It furthermore does not specify what damage has been suffered and the relief to be sought. Accordingly aid is refused. If the issue becomes important in the rape prosecution then the matter can be assessed at that time. The advent of the rape charge does not alter our view expressed in relation to the extant proceedings.[10] Lawyer A did not apply for review to the Legal Aid Review Panel. On 26 November 2002 Mr Reekie did pursue that remedy himself. In a decision, dated 17 April 2003, the Panel held he had applied one month out of time and had to apply for an extension. If he did that, the Panel said, the decisive issue would be whether his claim had any prospect of success. He had to show more than that the DNA sample had been taken from him unlawfully. He had to show that his prospect of a remedy was sufficient to justify the costs of the claim. [11] Mr Reekie did not apply for an extension of time to pursue that appeal to the Panel. Nor did he, as the Panel advised him he might, make a fresh application for aid. Nor did he appeal the Panel's decision to this Court. The Agency's decision, declining his original application, remained undisturbed. This application constitutes Mr Reekie's first challenge to the Agency's and the Panel's original decisions. [12] Mr Reekie went to trial in May 2003 represented not by lawyer A, but by counsel appointed on criminal legal aid. The Crown, I gather, relied on the DNA specimen obtained in 2001 without having to contend with any defence objection. Mr Reekie was convicted and in July 2003 sentenced to preventative detention with a minimum term of 25 years. 1 He appealed his convictions and sentence. He abandoned the former and confined his appeal to the latter. He sought only to have the minimum term imposed reduced. As to that he was successful. The minimum term was reduced to 20 years.21 R v Reekie HC Auckland T021833, 15 July 2003.2 R v Reekie CA339/03, 3 August 2004.[13] On 1 February 2005 Mr Reekie made a second application for aid, this time assisted by lawyer B. In his covering letter to the Agency lawyer B said simply, 'I would expect the proceedings to be contested, and the matter would not readily be capable of settlement, judging from the present political climate.' By that, Mr Reekie told me, lawyer B was referring to a state of uncertainty then created by the possibility that prisoners might soon obtain a statutory right to claim compensation; the right now given by the Prisoners' and Victims' Claims Act 2005. [14] On 4 February 2005 the Agency asked lawyer B to supply a detailed and reasoned certificate as to Mr Reekie's prospects of success. In a letter, dated 14 March 2005, the lawyer confined himself to saying this:There has clearly been a breach by the authorities of Reekie's rights, and I submit that if that ground is correct, then Reekie must succeed in his claim. How any court will treat the breach of those rights by way of compensation is not a matter that I am able to predict with any accuracy. I am not able to predict the outcome with a comment that Reekie's claim will succeed to a level that guarantees success.[15] On 8 April 2005 the Agency declined this second application, still unconvinced that Mr Reekie had any prospect of success; or, more accurately, certainly unconvinced on the information it then had. It said:On what has been provided, we are unable to form a view on prospects of success. Mr Reekie's narrative is not sufficient. We need a proper outline of the facts from counsel along with advice of the cause(s) of action and remedies.[16] The Agency advised lawyer B, and Mr Reekie, of Mr Reekie's right to apply for review. Mr Reekie did not pursue review. Rather, it appears, he sought to re-engage lawyer A. He also complained to the Agency about lawyer B, whom he concedes in his statement of claim did not pursue his application sufficiently. Lawyer B, faced with that complaint, told the Agency he had reservations about Mr Reekie's claim and, furthermore, thought any damages likely to be nominal. [17] On 30 March 2006, lawyer C made Mr Reekie's third and final application. On 11 March 2006 Mr Reekie obtained an interim grant to enable lawyer C to report to the Agency on his prospects of success. Lawyer C may not then have made thatreport. If he did not, that may in part be explained by the fact that then or later he suffered an accident. Instead, concerned that Mr Reekie's claim might become time barred, he prepared and filed Mr Reekie's claim without a grant of aid. [18] On 28 November 2007, having taken advice from a specialist adviser, the Agency met lawyer C's invoices for launching the claim but gave notice that, subject to any submission he wished to make within a given time, it intended to withdraw aid. The Agency considered still that Mr Reekie was unlikely to obtain any remedy justifying the expense of trial. Mr Reekie, it seems, responded. Whether lawyer C responded is not entirely clear. But the decision of Asher J on appeal suggests that at some stage he gave an opinion to Mr Reekie, or to the Agency, or to both, that Mr Reekie's prospects were not great. On 3 June 2008 the Agency withdrew aid. [19] This time Mr Reekie applied for review and the Legal Aid Review Panel issued not one decision but two. In the first, dated 5 September 2008, it upheld as scrupulously fair, reasonable and correct in law the Agency's decision to withdraw aid. In the second, dated 20 February 2009, however, a differently constituted Panel held the Agency wrong in law and unreasonable to have withheld aid to enable lawyer C to inspect the Waitakere Court file relating to the making of the compulsory order. The two decisions do not sit easily together. But on 27 March 2009 the Agency, accepting the second decision, made a supplementary grant. [20] In the meantime, on 17 and 18 September and on 15 October, when his civil claim went to hearing in this Court, Mr Reekie was obliged to represent himself. On 22 December 2008 Andrews J dismissed his claim on the basis that lawyer C had feared; that it was time barred. 3 She held also that it lacked merit. Any force used to take the sample from Mr Reekie, she held, was reasonable and expressly authorised by statute. The Corrections officers enjoyed statutory immunity, as did the doctor who took the sample. [21] On 26 February 2009 Asher J heard Mr Reekie's appeal to this Court against the Panel's primary, 8 September 2008, decision vindicating the Agency's ultimate decision to withdraw aid. In his decision, dated 6 March 2009, Asher J first3 Reekie v Attorney-General [2009] NZAR 304 (HC).questioned whether Andrews J's decision rendered the appeal moot. 4 Assuming in favour of Mr Reekie that it did have that effect, however, he then found that the Panel's decision, when set against each of Mr Reekie's grounds of appeal, readily withstood scrutiny. The Panel, he held, had made no error of law. [22] The Panel, Asher J said, in assessing Mr Reekie's chances of success, and relying on advice from a specialist adviser, had concluded, as was open to it, that Mr Reekie was unlikely to obtain any significant relief, monetary or otherwise. As he said: 5The Agency, as the Panel noted, had before it an opinion from Mr Reekie's lawyer stating that the prospects of any significant financial return were poor. The Panel did turn its mind then to other elements of success such as some finding of assault or unlawful detention that might assist Mr Reekie in seeking an appeal of his criminal convictions. It did weigh the broader interest Mr Reekie had in the proceedings, but it rejected that ground. In my view it did so rightly.[23] The Agency, Asher J went on to say, had to be cautious when invited, as Mr Reekie had invited it, to fund proceedings with a collateral purpose. It was not obvious, he added, how Mr Reekie could rely on his civil claim, even assuming a successful result, to have his convictions set aside. As to that Asher J said: 6Mr Reekie had a chance to challenge the taking of the blood sample in the criminal proceedings that led to his conviction. Those proceedings are concluded. Any attempt that he has in mind to try some sort of collateral attack on the convictions through some helpful findings in civil proceedings seems most optimistic, and unlikely to help him in his ultimate goal of overturning the convictions. Therefore, in terms of his ultimate goal, whatever the merits of his assault claim, the prospect of success is slight.[24] Mr Reekie's other grounds for appeal, that the Panel pre-judged his appeal, had incorrectly assessed costs and benefits, had taken into account irrelevant matters, and had failed to give due effect to the NZBORA, fared no better. As to that last complaint, which figures constantly in the present claim, Asher J remarked: 7 the NZBORA does not confer an absolute right to legal aid. Aid can only be granted in terms of the Legal Services Act 2000 and the restrictions on eligibility that are contained therein cannot be ignored. As was observed by4 Reekie v Legal Services Agency HC Auckland CIV-2008-404-6451, 6 March 2009.5 At [19].6 At [20].7 At [26].the Court of Appeal in the context of criminal legal aid in Brown v Attorney- General [2005] 2 NZLR 405 at [116], the NZBORA cannot override unambiguous legislation devised by Parliament to deal with the delivery of legal aid.[25] Mr Reekie had no greater success in the Court of Appeal, in his attempt to appeal against Andrews J's decision dismissing his civil claim. That appeal, like the claim itself, he brought out of time; and, in declining him an extension of time on 15 December 2009, the Court of Appeal held that he had no prospect of success, stating: 8... the applicant faces unequivocal and clear findings that the force used was necessary and reasonable. ... The reality is that the applicant's behaviour on 15 May 2001 was entirely unreasonable and rendered the application of force inevitable. 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.[26] Mr Reekie, on 22 June 2009, brought this present application for judicial review, claiming public law compensation; and that, the defendants say, must involve not simply revisiting the legal aid decisions made by the Agency, and the Panel, and the decision on appeal to this Court, but those adverse to him on his civil claim, even leaving aside his wish to challenge his convictions and sentence.Strike out jurisdiction[27] The defendants apply to strike out Mr Reekie's application relying on r 15.1(1) of the High Court Rules which says:The court may strike out all or part of a pleading if it – (a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or (b) is likely to cause prejudice or delay; or (c) is frivolous or vexatious; or (d) is otherwise an abuse of the process of the court.8 Reekie v Attorney-General [2009] NZCA 598 at [13](d) and (e).[28] The Court's power to strike out under this rule is without prejudice to its inherent jurisdiction: High Court Rules, r 15.1(4). In exercise of the power the Court may dismiss a proceeding or enter a stay: High Court Rules, r 15.1(2) and (3). [29] As to the usual primary ground, untenability, Richardson P stated inAttorney-General v Prince and Gardner, 9 the principles that apply:A striking-out application proceeds on the assumption that the facts pleaded in the statement of claim are true. That is so even although they are not or may not be admitted. It is well settled that before the Court may strike out proceedings the causes of action must be so clearly untenable that they cannot possibly succeed ; the jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material ; but the fact that applications to strike out raise difficult questions of law, and require extensive argument does not exclude jurisdiction .[30] To strike out entirely for untenability is a measure of last resort. It is not to be resorted to where there may be a cause of action, which has been insufficiently or inaccurately pleaded. Strike out is only justified when there is no cause of action disclosed, however pleaded.10[31] Applications to strike out an application for judicial review on the ground of untenability are to be decided on just these principles, but the Court is not confined to the pleadings. 11 The clearest instance of that in this case may well be Mr Reekie's attempt to review judicially the decision in this Court upholding the Agency and Panel decisions, and to obtain an award against the Judge. In that he faces, as he concedes, two insuperable difficulties. This Court cannot review itself and the Judge in the exercise of his office enjoys absolute immunity from suit.12 This aspect of his claim as presently pleaded, as he appears now to accept, has at the very least to be untenable. I need not say more about it. [32] Whether an application for judicial review is untenable and abusive because there is a statutory right of appeal that affords an adequate remedy also lies beyond9 Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 267.10 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [31].11 Southern Ocean Trawlers Ltd v Director-General of Agriculture & Fisheries [1993] 2 NZLR 53 (CA) at 62-63.12 Re Racal Communications Ltd [1981] AC 374 (HL); Hawkins v Attorney-General (1999) 14 PRNZ 5 (HC); Nakhla v McCarthy [1978] 1 NZLR 291 (CA).the pleadings. It could be a bar to review, or at least a consideration pointing against review. 13 Where the statutory remedy conferred, the right of merit review or appeal, has actually been exercised a later application for judicial review can be an abuse; an attempt to re-litigate issues already resolved. Finality is in the public interest. Apart from any unfairness, re-litigation can strike at public confidence in the administration of justice.14[33] This latter inquiry will necessarily go to the issue as to whether Mr Reekie is precluded from advancing his claim, or more precisely to his ability to assert the essential foundation for it, by the doctrine of res judicata, the essence of which in its widest sense is this: 15 where a final judicial decision has been pronounced by a New Zealand judicial tribunal of competent jurisdiction over the parties to, and the subject-matter of, the litigation, any party or privy to such litigation, as against any other party or privy thereto, is estopped in any subsequent litigation from disputing or questioning the decision on the merits.[34] As the Court of Appeal there said, whether a claim is barred, if not by cause of action estoppel, then by issue estoppel ('a particular matter of fact or law in issue in the second proceeding ... decided by the prior judgment'), 16 depends on whether the issue of fact or law is identical in each case and how determinative it is. But even if there is strictly no issue estoppel, there may still be an abuse of process, where the point taken could as readily have been taken in the original proceeding. 17[35] Where there is a late challenge, and a question whether that connotes an abuse of process, the Supreme Court held in Z, that calls for a 'broad, merits-based judgment which takes account of the public and private interests involved'. 1813 RL v Chief Executive of the Ministry of Social Development [2009] NZCA 596.14 Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [58] and [62].15 Shiels v Blakeley [1986] 2 NZLR 262 (CA) at 266. Issue estoppel applies in the public law field in appropriate cases: Link Technology 2000 Ltd v Attorney-General [2006] 1 NZLR 1 (CA) at [47].16 At 266.17 See also Russell v Taxation Review Authority (2000) 19 NZTC 15,924 (HC).18 Z v Dental Complaints Assessment Committee at [63] per Elias CJ and at [127] per Blanchard, Tipping and McGrath JJ, quoting with approval Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 (HL) at 31 per Lord Bingham. See also Attorney-General v McVeagh [1995] 1 NZLR 558 (CA).Claim in essence[36] In his statement of claim Mr Reekie contends essentially, in each of the decisions taken, as to all three applications, the Agency, the Panel and Asher J on appeal, one or more of them, infringed one or more of his rights as a person charged (s 24), the minimum standards of criminal procedure (s 25), and his right to justice (s 27). He claims as well equivalent breaches of the International Covenant on Civil and Political Rights. He contends also that the Agency is in breach of a duty of care. [37] As a result, Mr Reekie contends, he was denied any ability to prosecute his civil claim as it deserved, before trial or after. He was convicted of very serious charges, and sentenced excessively to an indefinite sentence under which he is denied any reasonable prospect of parole. If those aid decisions are set aside, he is confident, he will be able to re-appeal the decisions adverse to him on his civil claim and then his convictions and sentence. He claims to be entitled now to public law compensation, both compensatory and exemplary. [38] Mr Reekie distinguishes between the decisions taken on his original application for aid, before he went to trial, and those on the two applications after trial. Those taken on his original application, he contends, are more critical. Had aid then been granted, he contends, he could have obtained a judgment before trial on which he could have relied to have the compromising DNA sample ruled inadmissible. And, he contends, his right to challenge the validity of those early decisions cannot be complicated by Asher J's decision. It concerns only his third application. [39] As to the decisions concerning his third application, he now accepts, he cannot review Asher J judicially and the Judge is immune from suit. If the Attorney- General is substituted, however, he contends, he must be able to challenge that decision and those it vindicates. In respect of all decisions taken on all three applications for aid, he must be entitled to the relief he seeks.Public law compensation[40] In resolving this present application to strike out Mr Reekie's judicial review application, and his claim for public law compensation, I begin with the latter, accepting in principle that public law compensation can exceptionally lie against the Crown for established breaches of rights under the NZBORA arising from decisions taken, or not taken, under the Legal Services Act 2000.19[41] For this purpose, I will assume, breaches inherent in Agency decisions are likely to be those of the executive branch of government. The Agency is a body corporate created by the Act, charged with administering it according to its purposes. 20 Any breach inherent in a Panel decision, I will assume, is more likely to be an error of the judicial branch. The Panel can only intervene if the Agency's decision is manifestly unreasonable or wrong in law. 21 But nothing turns on that. The Crown, I will assume, is as liable for breaches of human rights by the judicial branch; and in this case may be liable, as Mr Reekie seeks to say, for any breach inherent in the decisions of the Panel and of this Court on appeal. 22[42] All of that said, public law compensation is an exceptional remedy that will only usually lie where one of the non-monetary remedies proves inadequate to vindicate the right infringed. More basically, before such a claim can even begin to arise, the breach of rights on which it is said to depend must be able to be asserted legitimately in a proceeding, and, only once that is safely established, proved to the requisite standard.Invalidity claim barred[43] In his prayer for relief Mr Reekie recognises that to obtain any relief, let alone to found a claim for public law compensation, he must first obtain a declaration that the decisions he seeks to impugn were unlawful; that they were wrong in law and invalid. That, I consider, he cannot begin to do.19 Attorney-General v Chapman [2009] NZCA 552, [2010] 2 NZLR 317.20 Legal Services Act 2000, s 92.21 Legal Services Act 2000, s 54.[44] Mr Reekie's first two applications, those resulting in the decisions of the Agency dated 24 September 2002 and 8 April 2005, each failed for the same reason. In each the Agency held that Mr Reekie's then lawyer had insufficiently certified his prospect of success and the Agency was unconvinced that he had any. Those decisions then stood as final under the Act unless Mr Reekie pursued the remedies the Act gave him, whether by way of review or appeal, to the point where he was successful. He did not do so. As to the first decision adverse to him he applied for review to the Panel out of time. He did not pursue an extension, or apply for a fresh grant, or appeal. As to the second he did nothing beyond complain about his lawyer. Eventually he made the third application rendering his first two applications for aid, and the decisions relating to them, redundant. [45] On his third application Mr Reekie did receive both retrospective and supplementary grants. Again, however, the Agency finally withdrew aid on 3 June 2008 unconvinced by his prospects of success; a conclusion evidently shared in some degree by his then lawyer. The Panel sustained that decision and Asher J upheld the decision of the Legal Services Panel. Once again Mr Reekie did not seek to pursue his remaining right under the Legal Services Act. He did not seek to appeal the decision of Asher J to the Court of Appeal. Asher J's decision must stand, I consider, definitively. [46] By his application for review Mr Reekie now contends that the Agency, the Panel and Asher J variously infringed his rights under the NZBORA; and in that he must be contending that all three were wrong in fact and law as to the essential bases on which they made decisions adverse to him, as to his prospect of success. At the very least he has to be estopped from doing so. In fact, his application offends more fundamentally. It is vexatious and an abuse of process.Conclusion[47] By his application for judicial review, and his claim for public law compensation, Mr Reekie collaterally challenges decisions made under the Legal22 Attorney-General v Chapman.Services Act, denying him aid because he lacked any prospect of success, as to which he did not attempt to exhaust his statutory rights of review or appeal. [48] More, Mr Reekie challenges collaterally, if at a remove, the decisions of this Court and those on appeal, dismissing as meritless the civil claim for which he sought aid; decisions that confirm he had no prospect of success. More, he challenges collaterally, if at a greater remove, his convictions and sentence, though he made no challenge at trial to the DNA sample to which the civil claim related, and abandoned his appeal against conviction. [49] Mr Reekie's application, and consequent claim for relief including public law compensation, is not merely untenable. It is vexatious and an abuse of process. There is no possibility, I consider, that it could be reframed, in particular, by substituting the Attorney-General, to remedy these delinquencies. They are irremediable. [50] The three applications to strike out Mr Reekie's claim in its entirety are granted. As all three defendants agree, because Mr Reekie is a sentenced prisoner, there can be no consequent issue as to costs._____________ P.J. Keane J