REEKIE v ATTORNEY-GENERAL (for the SECRETARY OF JUSTICE) [2018] NZHC 2496

REEKIE v ATTORNEY-GENERAL (for the SECRETARY OF JUSTICE) [2018] NZHC 2496 [24 September2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2018-485-000168[2018] NZHC 2496UNDER The Judicature Amendment Act 1972,Prisoners' and Victims' Claims Act 2005 andthe New Zealand Bill of Rights Act 1990IN THE MATTER OF Application for Judicial ReviewBETWEEN NICHOLAS PAUL ALFRED REEKIEApplicantAND ATTORNEY-GENERAL (for theSECRETARY OF JUSTICE)RespondentHearing: 17 September 2018Counsel: Applicant in personM J McKillop and J B Watson for RespondentJudgment: 24 September 2018JUDGMENT OF COLLINS JIntroduction[1] The principal issue raised by Mr Reekie's application for judicial review iswhether a settlement sum agreed to by Mr Reekie and the Attorney-General is"compensation" under the Prisoners' and Victims' Claims Act 2005 (the Act).[2] Regrettably, ancillary issues raised by Mr Reekie's application concerning theprocedures followed by the Ministry of Justice (the Ministry) under the Act have hadto be adjourned because a judgment in a related proceeding dealing with proceduralsteps required by the Act was made available just prior to the hearing of Mr Reekie'sapplication.1 An adjournment was necessary to enable the parties, and in particularMr Reekie, the opportunity to consider what consequences follow from the relatedjudgment. Mr Reekie has indicated he may appeal that judgment. If he does so, adecision from the Court of Appeal may bear on how the procedural aspects of thecurrent application are to be resolved.Background[3] In August and October 2016, Mr Reekie, a prisoner who is serving a sentenceof preventive detention for several rapes, filed statements of claim with the HumanRights Review Tribunal.[4] Mr Reekie's claims related to failures by the Department of Corrections (theDepartment) to comply with his requests for personal information. ThePrivacy Commissioner had previously investigated Mr Reekie's complaints andconcluded there had been breaches of his rights under the Privacy Act 1993.[5] On 30 March 2017, the Attorney-General, acting on behalf of the Department,and Mr Reekie entered into an agreement (the Agreement) to settle his claims againstthe Department. The relevant parts of the Agreement state:4 The defendant undertakes to pay, in accordance with clause 5, the sumof four thousand dollars ($4,000) in full and final settlement of theclaims 5 The plaintiff acknowledges that pursuant to s 17(1) of thePrisoners' and Victims' Claims Act 2005, the sum of $4,000 referredto in clause 4 will be paid to the Secretary for Justice to be dealt within accordance with the provisions of that Act.7 The plaintiff and the defendant acknowledge that there shall be noorder sought by any party as to the costs of the proceedings.9 The defendant's agreement to enter into the settlement is madewithout any admission of legal liability as to damages.1 Reekie v Claimants A and B [2018] NZHC 2434.[6] Mr Reekie's arguments rely in part on a letter from counsel for the Departmentthat accompanied the Agreement. In particular, Mr Reekie relies on the heading"without prejudice save as to costs" at the top of counsel's letter.[7] Mr Reekie maintains that the $4,000 paid by the Department is notcompensation as defined in the Act. I explain the relevant provisions of the Act at [10]to [12]. Suffice for present purposes to record that on a previous occasion Mr Reekiehad reached an agreement with the Department in relation to another alleged PrivacyAct breach. Under the terms of that agreement it was acknowledged that the settlementsum (then $1,350) was "compensation" and was to be paid to the Secretary for Justice(the Secretary) in accordance with s 17(1) of the Act so that it could be made availableto the victims of Mr Reekie's offending.[8] In the present case, Mr Reekie argues that there was no acknowledgement thatthe $4,000 was "compensation" and therefore that sum should be paid to him and notmade available to victims of his offending.The Act[9] The Act was passed following the High Court's judgment in Taunoa vAttorney-General, in which compensation was awarded to prisoners unlawfullydetained in a segregated behaviour management regime.2 Parliament passed the Actbecause, as the Minister of Justice said in Parliament:3Most people, including myself, have a deep sense that it is wrong that servingoffenders can be awarded compensation for wrongful treatment without thoseoffenders themselves being required to pay compensation to their victims forthe serious wrongs inflicted upon them.[10] The relevant provisions are contained in subpart 2 of Part 2 of the Act.Section 17(1) provides that any person who becomes liable to pay compensation to aprisoner must pay that money to the Secretary, who applies the money towards settlingcharges under the Legal Services Act 2011, reparation orders and claims under s 46 of2 Taunoa v Attorney-General [2004] 8 HRNZ 53 (HC). The damages awards were ultimatelyreduced by the Supreme Court in Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR429.3 (14 December 2004) 622 NZPD 17986.the Act. Any money remaining is then held by the Secretary in an interest-bearingaccount.[11] Victims of offending are required to follow procedures set out in the Act forfiling claims against sums held by the Secretary,4 who refers claims to a Victims'Special Claims Tribunal (the Tribunal) comprising a designated District Court Judge.5If the Tribunal accepts a victim's claim it may, after having regard to all other relatedclaims accepted by it, order that an amount of money be paid to the victim under s 46of the Act.6 In determining the amount to be paid to a victim, the Tribunal must nothave regard to the amount of money actually held by the Secretary in the account forthe offender.7[12] Of key importance in this case is the definition of compensation in the Act, therelevant parts of which state:8compensation—(a) means any form of monetary compensation or damages(however described) required by a court or tribunal to be paid(including, without limitation, an amount of, or in the nature of,exemplary damages); and(b) for the purposes only of subpart 2 of Part 2, includes any formof monetary compensation or damages (however described)required to be paid as, or as part of, an out-of-court finalsettlement of a claim (including, without limitation, an amountpaid in final settlement of a claim for an amount of, or in thenature of, exemplary damages); and(d) does not include an amount required or agreed to be paid as, ortowards, the costs of making a claim.4 Prisoners' and Victims' Claims Act 2005, s 28.5 Section 58.6 Section 46(3).7 Section 47(1).8 Section 4, definition of "compensation".Prior claims concerning Mr Reekie[13] Soon after the $1,350 from Mr Reekie's earlier settlement with the Departmentwas paid into the account managed by the Ministry, notices were issued in dailynewspapers advising victims of Mr Reekie's offending of their entitlement to makeclaims against the money held in the account. Claims by two victims (A and B) werelodged under the Act.[14] On 25 August 2017, Judge Blackie, sitting as a Tribunal, concluded pursuantto s 46 of the Act that A and B were victims of Mr Reekie's offending and that theyhad suffered injuries and damage for which they were unlikely to receive effectiveredress. Judge Blackie awarded each victim $25,000 to reflect Mr Reekie's"outrageous conduct".[15] Mr Reekie appealed Judge Blackie's decision to the High Court. That appealwas allowed by Moore J on 14 September 2018. Moore J was satisfied that theMinistry had committed serious procedural errors when it failed to serve Mr Reekiewith the claims by victims A and B and provide him with a reasonable opportunity torespond. Moore J observed:9 The mandatory requirement that the offender be served a copy of the claimand given a reasonable opportunity to make submissions was not met Inthis case, the breach of the rules of natural justice has tainted the Tribunal'ssubstantive decision.[16] There is an overlap between the matters addressed by Moore J and the claimsof procedural irregularity by Mr Reekie in the present case. In particular, in his currentapplication Mr Reekie claims that the Ministry had miscalculated the statutory timelimit for when victims could claim against the $4,000. He also says he was notprovided with notification of claims by victims A and B in relation to the $4,000currently held by the Ministry.[17] Mr Reekie was unaware of Moore J's judgment at the commencement of thehearing before me. In those circumstances, I consider it appropriate to confine thisdecision to a determination of whether or not the $4,000 held by the Ministry is9 Reekie v Claimants A and B, above n 1, at [31] (footnote omitted).compensation under the Act. The hearing in relation to the procedural complaintsraised by Mr Reekie will, if necessary, be resumed on a later date.Is the $4,000 compensation under the Act?[18] Mr Reekie's submissions can be distilled to the following three points.[19] First, he observes that the Agreement does not describe the $4,000 payment as"compensation". Mr Reekie says this is particularly relevant as on the previousoccasion that the Department paid $1,350 in settlement of his claims for breach ofprivacy, the payment was specifically described as "compensation".[20] Second, Mr Reekie relies on the statement in cl 9 of the Agreement that thesettlement is made without any admission of legal liability as to damages. Mr Reekie,referring to the phrase "compensation or damages" in the definition under the Act,interprets this as meaning that the payment is not "damages", and so he has notreceived compensation.[21] Third, Mr Reekie interprets cl 7 of the Agreement, and the correspondence withcounsel for the Department that the $4,0000 payment was made "without prejudiceexcept as to costs", as meaning the $4,000 was paid as costs, and was thereforeexcluded from the definition of compensation.10[22] The first limb to Mr Reekie's argument is misguided. The relevant definitionof "compensation" in s 4 of the Act refers to "monetary compensation or damages(however described) required to be paid as, or as part of, an out-of-court finalsettlement of a claim". The words "however described" in the definition clearlyrendered it unnecessary to include the word "compensation" in the Agreement. The$4,000 payment falls within the definition of "compensation" in s 4 because it was asum "required to be paid as, or as part of, an out-of-court final settlement of a claim".[23] I do note, however, a peculiarity about the wording of the definition. There isa potential circularity involved in the use of the phrase "compensation or damages" in10 Prisoners' and Victims' Claims Act 2005, s 4, definition of "compensation", para (d).the definition of the word "compensation" (the potential circulatory arises by defining"compensation" as including "compensation"). Ascertaining the text and purpose ofthe Act, however, overcomes any potential ambiguity.11[24] The phrase "compensation or damages" appears within the expression"monetary compensation or damages (however described)", which is a preamble tothe part of the definition that explains what kinds of payments are covered by the Act.The use of the word "compensation" appears to be a redundancy that was not intendedto limit the scope of the definition. In context, it must be read together with thequalification "however described". It appears the drafters used the phrase merely toprovide examples of words that could be used to describe a payment of money. It isthe latter half of the definition that is the operative part. It would be inconsistent withthe purpose of the Act, which was to provide victims with the opportunity to makeclaims against money received by prisoners as redress, to adopt an interpretation thatlimited the scope of payments covered by the Act.[25] The second limb of Mr Reekie's case is also flawed. The statement in cl 9 ofthe Agreement that it was reached without any admission of legal liability as todamages simply means that although the Department agreed to settle the two claimsby paying $4,000 it did so without admitting legal liability. Clause 9 does not detractfrom the clear effect of the definition of "compensation" in the Act and in particular,the clause cannot be construed as meaning the payment is not compensation as definedin the Act.[26] The third aspect of Mr Reekie's claim is also without merit. The fact the $4,000payment was made "without prejudice except as to costs" cannot be construed asmeaning the payment of $4,000 was "costs". All the words "without prejudice exceptas to costs" mean is that if the claim had proceeded, the settlement offer would havebeen communicated to the court as a "Calderbank offer".12 There is also nothing elsein the Agreement to suggest that the payment was for costs as opposed tocompensation. In particular, the acknowledgement in cl 5 strongly suggests that thepayment was compensation rather than costs.11 Interpretation Act 1999, s 5(1).12 See High Court Rules 2016, r 14.10.[27] For completeness, I record Mr Reekie's claim that he intended the paymentwould be treated as costs, and that he had discussed this intention with a representativeof the Department. That claim is of no assistance because, ultimately, the objectivewords of the Agreement must take precedence over a party's subjective intentions.Conclusion[28] Mr Reekie has misinterpreted the Agreement. The Agreement concerned asum of money that is compensation under the Act.[29] The parties agree that the $4,000 currently held by the Ministry shouldcontinue to be held by the Ministry pending further order of the Court or agreementbetween the parties. I so direct.[30] Any issue as to costs can be resolved once the final part of Mr Reekie'sapplication for judicial review has been heard and determined._______________________D B Collins JSolicitors:Crown Law Office, Wellington