REEKIE v THE ATTORNEY-GENERAL (SUED ON BEHALF OF THE DEPARTMENT OF CORRECTIONS) COA CA532/2012

REEKIE v THE ATTORNEY-GENERAL (SUED ON BEHALF OF THE DEPARTMENT OF CORRECTIONS) COA CA532/2012 [6 May 2013]IN THE COURT OF APPEAL OF NEW ZEALANDCA532/2012[2013] NZCA 131BETWEEN NICHOLAS PAUL ALFRED REEKIEApplicantAND THE ATTORNEY-GENERAL (SUED ONBEHALF OF THE DEPARTMENT OFCORRECTIONS)First RespondentAND THE ATTORNEY-GENERALSecond RespondentAND THE DISTRICT COURT ATWAITAKEREThird RespondentCounsel: Applicant in personJ Foster for RespondentsJudgment: 6 May 2013 at 3.00 pm(On the papers)JUDGMENT OF WHITE J(Review of Registrar's decision refusing to dispense with security for costs)A The application to review the Registrar's decision refusing to dispensewith security for costs is dismissed.B The applicant is to pay the sum of $5,880 by way of security for costs within 20 working days of the date of this judgment.____________________________________________________________________REASONSBackground[1] The applicant, Mr Reekie, has filed an appeal against a judgment of Wylie J in the High Court at Auckland,1 an application for an extension of time to appeal, and an application for review of the decision of the Registrar of this Court declining his application for a dispensation from the requirement to pay a security for costs.2[2] Mr Reekie's application for an extension of time to bring his appeal has not yet been heard by this Court.[3] Mr Reekie was partly successful in his High Court proceeding for declarations and damages for alleged unlawful imprisonment and treatment while in prison. Wylie J found that some aspects of his treatment and conditions of imprisonment (in 2002–2003 in the old High Care Unit in Auckland Prison) breached his rights under s 23(5) of the New Zealand Bill of Rights Act 1990 and declarations to this effect were made, but no compensation was awarded. Wylie J dismissed an allegation that the appellant had been tortured whilst being placed on a tie-down bed, as he could not conclude the alleged torture described by Mr Reekie occurred. Wylie J also found that Mr Reekie had not been falsely imprisoned when he had been remanded pursuant to an oral order made in Court for which a warrant was not issued until some weeks later.[4] Mr Reekie's initial notice of appeal was defective, but he was permitted tofile an amended notice which was also filed late. This led to the application for an extension of time to appeal.[5] On 11 March 2013 the Registrar of this Court declined Mr Reekie'sapplication to waive security for costs. The Registrar noted that the only ground for the application was that previous fee waiver grants had been made in this proceeding1 Reekie v Attorney-General [2012] NZHC 1867.2 Court of Appeal (Civil) Rules 2005, r 35(6)(c).on the grounds of financial hardship and that Mr Reekie's circumstances had notchanged. The Registrar also noted that the respondents opposed the application on the basis that impecuniosity was not in itself a ground for dispensation, and that the case had no merit and there were no exceptional circumstances warranting waiver. The Registrar then noted the requirement that it must be in the interests of justice for security to be waived and there must be exceptional circumstances to justify waiver, impecuniosity alone being insufficient. The Registrar noted that she could not comment on the merits of the appeal, but that the circumstances could not be considered exceptional and there was nothing in the appeal of public importance or significance. She therefore declined to waive security, noting it was necessary to protect the respondents should the appeal be unsuccessful. Security was set at $5,880 to be paid by 8 April 2013.[6] Mr Reekie applied for a review of the Registrar's decision on 4 April 2013, more than 10 days after the decision was made. Once again, Mr Reekie seeks an indulgence from this Court to extend time for his application.[7] The respondents oppose the application to review the Registrar's decision.[8] Mr Reekie has taken the opportunity to file further submissions in response to those filed on behalf of the respondents. He is critical of the submissions filed for the respondents, claiming that his appeal has merits and is exceptional because it is of public importance and significance.Security for costs – general principles[8] In the normal course, appellants in civil proceedings in this Court are required to pay security for costs.3 If an appellant wishes to apply to the Registrar for a waiver of security, he or she must do so within 20 days of filing the appeal.4The Registrar may vary or waive security "if satisfied that the circumstances warrant it".53 Rule 35(2).4 Rule 35(3) and (6).5 Rule 35(6).[9] Security for costs will be waived where it is in the interests of justice to do so. There must be some exceptional circumstance to justify waiver.6 The appellant must honestly intend to pursue the appeal and it must be arguable, as respondents should not face the threat of hopeless appeals without provision for security. The importance of the issues raised in the appeal will be significant, as will the question of whether there is any public interest in having them determined.7 Impecuniosity alone is not usually sufficient to justify a waiver, but may be reason to reduce the quantum of security.8Discussion[10] I consider that the Registrar was right to refuse to dispense with the requirement to pay security for costs in this case.[11] Mr Reekie has provided no evidence of his financial hardship. On the assumption that he is impecunious, however, that alone would not be a sufficient reason to dispense with security. Exceptional circumstances are required.[12] The appeal does not raise issues of public importance nor contain any matter of significant legal principle, justice or public interest that requires reconsideration by this Court. Rather, as submitted for the respondents, it involves matters of historic interest only, the relevant legislation no longer being in force9 and the old High Care Unit in Auckland prison having been closed since 2006.[13] The appeal has little prospect of success. In Mr Reekie's lengthy notice, no specific errors of law are identified, rather the appeal is based on the sole ground thatWylie J's assessment of the evidence was unreasonable. Nothing raised in Mr Reekie's notice or subsequent submissions reaches the threshold necessary tothrow into question the trial Judge's assessment of the evidence.6 Fava v Zaghloul [2007] NZCA 498, (2008) PRNZ 943 at [9]; and Orlov v National StandardsCommittee (No 1) [2013] NZCA 96 at [7] and [11].7 Creser v Official Assignee CA196/05, 12 June 2006 at [29].8 Fava v Zaghloul at [9]; and Easton v Broadcasting Commission [2009] NZCA 252, (2009)19 PRNZ 675 at [5].9 Penal Institutions Act 1954 and Penal Institutions Regulations 2000.Result[14] The application to review the Registrar's decision refusing to dispense withsecurity for costs is dismissed. Mr Reekie is to pay the sum of $5,880 by way of security for costs within 20 working days of the date of this judgment.Solicitors:Crown Law Office, Wellington for Respondents