SMITH v NEW ZEALAND PAROLE BOARD [2018] NZCA 295

SMITH v NEW ZEALAND PAROLE BOARD [2018] NZCA 295 [7 August 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA238/2018[2018] NZCA 295BETWEEN PHILLIP JOHN SMITHApplicantAND NEW ZEALAND PAROLE BOARDRespondentCounsel: Applicant in personM S Smith for RespondentJudgment:(On the papers)7 August 2018 at 2.30 pmJUDGMENT OF CLIFFORD J(Review of Registrar's Decision)A The application for review of the Deputy Registrar's decision refusing todispense with security for costs is declined.B Security for costs in the sum of $6,600 must be paid into Court by28 August 2018.____________________________________________________________________REASONSIntroduction[1] Mr Smith applies for review of the Deputy Registrar's decision to decline todispense with security for costs on Mr Smith's appeal.Background[2] Mr Smith appeals against a decision of Simon France J in the High Court dated7 May 2018 dismissing Mr Smith's application for judicial review.1 Mr Smith hadapplied for judicial review in respect of a decision by the respondent, the Parole Board,declining Mr Smith parole.[3] Simon France J held that the Parole Board had considered all relevantconsiderations.2 Simon France J accepted that proportionality was relevant to paroledecisions, but declined to make a declaration to that effect.3 He reasoned thatthe Parole Act 2002 "inherently involves a proportionality assessment", displacing theprocedural formalities of an inquiry pursuant to s 5 of the New Zealand Bill of RightsAct 1990.4 On the facts, the Parole Board "did undertake a proportionalityassessment" pursuant to the scheme of the Parole Act.5[4] Mr Smith filed a notice of appeal against that decision. Security for costs wasfixed at $6600. On 17 May 2018, Mr Smith applied to dispense with security for costs,on the basis that he is impecunious, and the appeal has merit and raises a question ofpublic importance (being the application of s 5 of the New Zealand Bill of RightsAct in the parole context). The Deputy Registrar declined the application on 27 June2018.[5] Mr Smith now applies for review of the Deputy Registrar's decision underr 7(2) of the Court of Appeal (Civil) Rules 2005. He relies on the following grounds:(a) He is impecunious (in fact, insolvent) and is unable to pay security forcosts;(b) He has been successful in all applications he has brought beforethe High Court as a self-represented litigant, other than the judgmentunder appeal; and1 Smith v New Zealand Parole Board [2018] NZHC 955.2 At [32].3 At [49].4 At [45].5 At [37]–[39].(c) The appeal has a strong prospect of success.Analysis[6] The relevant principles are well-established. The default position is thatsecurity for costs should be provided in relation to an appeal to this Court.6 Departurefrom that principle is exceptional.7 Security for costs should only be dispensed withif it is right to require the respondent to defend the judgment under challenge withoutthe protection as to costs that the security provides.8Impecuniosity[7] Mr Smith says he is impecunious.[8] Mr Smith has been granted a fee waiver on the appeal, but that is notdeterminative.9[9] The onus is on the appellant to provide evidence that they are financiallyunable to pay security.10 Mr Smith has provided no evidence of this, although he sayshe can provide "a statement of financial position if he is required to do so".[10] However, as the Deputy Registrar recognised, impecuniosity does not, in andof itself, justify an order dispensing with security for costs.11 Security should only bedispensed with in circumstances where a reasonable and solvent litigant wouldreasonably wish to proceed with the appeal.12 A reasonable and solvent litigant wouldnot proceed with an appeal that is hopeless, or where the benefits to be obtained areoutweighed by the costs of the appeal.136 Court of Appeal (Civil) Rules 2005, r 35(2).7 Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [28].8 At [31].9 At [42].10 Court of Appeal (Civil) Rules, r 35(2).11 Reekie, above n 7, at [20].12 At [35].13 At [35].The merits[11] On that basis, the Deputy Registrar was correct to go on to consider the meritsof the appeal. If the merits of the appeal are weak, or the costs outweigh the benefits,then there is no reason to dispense with security for costs.[12] In my view, the costs of the appeal outweigh the benefits of the appeal. Thefirst two grounds of Mr Smith's notice of appeal allege that the High Court erred infinding that proportionality in the parole context does not engage s 5 of theNew Zealand Bill of Rights Act and that the minimum impairment limb of theproportionality analysis is modified by the Parole Act. In essence, Mr Smith ischallenging Simon France J's finding that the proportionality assessment under theParole Act displaces or is analogous to the proportionality analysis under s 5 of theNew Zealand Bill of Rights Act. There may be something in that. However, I amsatisfied that the benefits of the proposed appeal do not outweigh the costs of it. Themost Mr Smith would gain would be declaratory relief — namely, a declaration thats 5 of the New Zealand Bill of Rights Act does apply in the parole context. But, ifMr Smith were to be unsuccessful on appeal, then he would be liable for costs of atleast $8,920. In my view, a reasonable and solvent litigant in Mr Smith's positionwould not proceed — especially as he is not seeking parole.[13] The third, fourth, and fifth grounds of appeal allege that the High Court madea number of other errors — including finding that the Parole Board's failure to explainwhy an alternative to imprisonment could not meet 'the undue risk to the safety of thecommunity test' was not necessary because Mr Smith did not seek parole; thatMr Smith's release plan, risk factors and early warning signs were taken into accountby the Parole Board; and that the Mr Smith's PPG results were not a relevantconsideration. As the Parole Board notes, however, these factors were of littlesignificance to the outcome — because the Parole Board rejected the low riskassessment of Mr Smith that was a pre-condition to that material being given weightso as to alter the practical outcome of the decision. The chance of these grounds ofappeal being successful on appeal to this Court is minimal. Further, and asthe Deputy Registrar noted, the benefit to be obtained would be that the Parole Boardwould reconsider its decision. This does not mean that the Parole Board would grantMr Smith parole. The chance of the Parole Board granting Mr Smith parole isminimal — Mr Smith did not seek immediate parole and the Parole Board has assessedMr Smith as high risk.[14] The sixth ground of appeal is that the Parole Board did not actually considerMr Smith for parole. There is no merit in this ground of appeal — the Parole Boardexpressly found "risk is undue and parole is declined".[15] In this context, I also note that Mr Smith has not applied for legal aid. As theSupreme Court noted in Reekie v Attorney-General, an appellant who "is not preparedto submit the proposed appeal to such assessment" "may not be well placed to obtaindispensation" of security for costs.14 This is because the appeal has not been subjectedto a cost-benefit analysis by Legal Aid Services.Other factors[16] I now consider the other factors that are relevant to an application to dispensesecurity for costs. First, and by reference to the relevance of an appellant's history ofunsuccessful litigation to the question of security for costs, Mr Smith says he has beensuccessful in all of the applications he has brought before the High Court as aself-represented litigant. I acknowledge that Mr Smith has had some measure ofsuccess in the High Court, but that factor is not determinative of the presentapplication.[17] Secondly, public interest considerations. I acknowledge, as does theParole Board and the Deputy Registrar, that there is some public interest in the issueof "how public bodies exercising statutory discretion are to consider rights that areguaranteed by the New Zealand Bill of Rights Act". Mr Smith has pointed to helpfulacademic commentary on the matter. However, for the reasons I noted above whenconsidering the merits of the appeal, I do not consider that this is an appropriate casefor those matters to be considered. The costs of the appeal outweigh the benefits ofthe appeal.14 Reekie, above n 7, at [38].[18] For those reasons, I conclude that it is not appropriate to require the ParoleBoard to defend the High Court judgment without the protection of security for costs.Accordingly, I agree with the Deputy Registrar's decision not to dispense with securityfor costs.Result[19] The application for review of the Deputy Registrar's decision refusing todispense with security for costs is declined.[20] Security for costs in the sum of $6,600 must be paid into Court by 28 August2018.