Nicholas Paul Alfred Reekie v Attorney-General

• Jurisdiction: New Zealand
• Judge: William Young J
• Judgment Date: 29 May 2014
• Neutral Citation: [2014] NZSC 63
• Docket Number: SC 47/2013
• Court: Supreme Court
• Date: 29 May 2014

Between

Nicholas Paul Alfred Reekie

Appellant

and

Attorney-General

First Respondent

District Court at Waitakere

Second Respondent

Between

Nicholas Paul Alfred Reekie

Appellant

and

Department of Corrections and Visiting Justice to Spring Hill Correctional Facility

Respondents

[2014] NZSC 63

Court:

Elias CJ, McGrath, William Young, Glazebrook and Arnold JJ

SC 47/2013

SC 102/2013

IN THE SUPREME COURT OF NEW ZEALAND

Appeal and an application for leave to appeal against two orders for security for costs — reconsideration by Supreme Court of basis for exercise of discretion in dispensing with security for costs based on the applicant's impecuniosity — appellant wished to appeal two decisions of the High Court relating to breaches of his rights while a prisoner — one of appeals related to now repealed legislation — security for costs orders were made by the Registrar of the Court of Appeal (CA) and the appellant's subsequent challenges to them were dismissed in judgments issued by single judges of the CA — whether decisions of a single judge as to security for costs could be reviewed by a panel of three CA judges — what were the principles for guiding the discretion to dispense with security for costs on appeal in cases of impecuniosity.

Counsel:

Appellant in person via video link

C R Gwyn and J Foster for Respondents on 27 November 2013

C R Gwyn and R D Garden for Respondents on 5 December 2013

A S Butler and O C Gascoigne as Amicus Curiae

The appeal in SC 47/2013 and the application for leave to appeal in SC 102/2013 are dismissed.

JUDGMENT OF THE COURT

REASONS

(Given by William Young J)

An appeal and an application for leave to appeal against orders for security for costs

1 Nicholas Reekie was the plaintiff in two sets of proceedings that resulted in judgments – one delivered by Wylie J 1 and the other by Rodney Hansen J 2 – which he now wishes to challenge in the Court of Appeal. In both cases, he is faced with orders for security for costs which he cannot satisfy and which will therefore prevent his appeals being heard. These orders were made by the Registrar of the Court of Appeal and the appellant's subsequent challenges to them were dismissed in judgments issued by single judges of the Court of Appeal. 3 We granted him leave to appeal against one of these judgments – relating to the case heard by Wylie J – and directed that the application for leave to appeal against the other be dealt with at the same time as this appeal. 4

The security for costs regime in the Court of Appeal

Security for costs – an overview

2 Security for costs can be required in the High Court and District Court when it appears that an order for costs against the plaintiff might not be able to be enforced (either because of the plaintiff's foreign residence or impecuniosity). 5 The jurisdiction to require security poses something of a conundrum for the courts. The poorer the plaintiff, the more exposed the defendant is as to costs and the greater the apparent justification for security. But, as well, the poorer the plaintiff, the less likely it is that security will be able to be provided and thus the greater the risk of a worthy claim being stifled.

3 Applications for security for first instance proceedings call for careful consideration and judges are slow to make an order for security which will stifle a claim. 6 A somewhat different approach has, however, been taken in respect of

appeals. It was explained, rather bluntly, in Cowell v Taylor, where Bowen LJ observed: 7

The general rule is that poverty is no bar to a litigant, that from time immemorial, has been the rule at common law, and also, I believe, in equity. There is an exception in the case of appeals, but there the appellant has had the benefit of a decision by one of Her Majesty's Courts, and so an insolvent party is not excluded from the Courts but only prevented, if he cannot find security, from dragging his opponent from one Court to another.

The same point was made more recently by Davies JA in the Queensland Court of Appeal, when he commented: 8

… an impecunious plaintiff who has lost at trial on the merits will have greater difficulty in relying on apparent merits as a factor against the making of an order for security the effect of which might stifle an appeal than would have been the case in respect of a similar reliance in opposition to an application for security of costs before trial. That is especially so where, as may have been the case here, the decision on the merits involved findings of fact based on credit.

4 The underlying approach still has considerable currency 9 and was relied on by the European Court of Human Rights in Tolstoy Miloslavsky v United Kingdom. 10 In that case, the applicant had appealed against a defamation judgment for £1,500,000 but was ordered by the English Court of Appeal to provide £124,900 as security for costs within 14 days of the order being made. The European Court rejected the applicant's contention that this was a breach of art 6(1) of the European Convention on Human Rights, the right to a fair and public hearing. In doing so, the Court placed considerable weight on the fact that the applicant had had “full access” to the first instance court. 11

5 There is obvious potential for orders for security for costs to operate unfairly against appellants of limited means. It was for this reason that in the United Kingdom, the Report of the Review of the Court of Appeal (Civil Division) (the Bowman Report) in September 1997 recommended that the rules for fixing security

for costs in respect of appeals should be similar to those which apply at first instance, a recommendation which was implemented by r 25.15 of the Civil Procedure Rules 1998 (UK). 12 There is a diversity of approach in Australia with the rules in some jurisdiction requiring special circumstances before security is ordered, whereas in others there is no such limitation. 13

6 In New Zealand, the default position has always been that security for costs should be provided in relation to appeals. This has been so, as we will explain, in relation to the Court of Appeal since 1882. 14 The situation is broadly the same for appeals from the District Court to the High Court and from the Court of Appeal to this Court, albeit that in respect of appeals to the Supreme Court, practice is affected by the fact that security for costs is only considered after leave to appeal has been granted.

7 The requirement to provide security has not, in practice, been a significant bar to appeals. At least since 1939, orders for security for costs on appeal in New Zealand have been modest with the result that such orders are well within the means of most appellants. 15 As well, as we will explain, appellants with apparently meritorious appeals have been able to proceed without providing security, in the past, under the in forma pauperis procedure and, in more recent times, with the assistance of legal aid. 16

The rules as to security for costs on appeal prior to 2005

8 The relevant history is as follows:

• (a) The first rules for the Court of Appeal were provided for in the schedule to the Court of Appeal Act 1882. Rule 18 provided:

  Due security for costs, and for the performance of the judgment of the Court of Appeal, shall, within six days after the notice of appeal has been given, be given to the satisfaction of the Registrar of the Court appealed from, unless the Court of first instance otherwise orders; and if no such security be given the notice of appeal shall be deemed abandoned.

• (b) Rule 22 of the Rules of the Court of Appeal which formed the third schedule to the Judicature Act 1908 was to the same effect. These rules were amended in 1939 so as to remove the requirement to give security for the performance of the judgment and to provide that security was in general to be fixed by reference to costs allowable for the first day of the hearing in the Court of Appeal. 17 The time for provision of security was extended from six to 14 days in 1953. 18

• (c) Rules 34 of the Court of Appeal (Civil) Rules 1955 and 11 of the Court of Appeal (Civil) Rules 1997 were to the same effect as Rule 22 of the 1908 Rules, as amended.

9 The Court of Appeal also exercised a jurisdiction to allow appeals in forma pauperis, 19 a jurisdiction which was formalised by additional Court of Appeal Rules made on 7 November 1903. 20 This procedure was carried through into the 1908 Rules and, under the heading “Poor Persons' Appeals”, into rr 50–68 of the Court of Appeal Rules 1955. These last rules were repealed by s 40 of the Legal Aid Act 1969. Security for costs was never required of an appellant who appealed in forma pauperis or “as a poor person”. 21 A party wishing to take advantage of this procedure was required to obtain an opinion from counsel certifying that the case

was “a proper case for appeal”. 22 The Court would not grant leave to appeal in forma pauperis unless independently satisfied that there were reasonable grounds for appeal. 23 Further, if the party who was granted leave to appeal on this basis conducted the appeal in “a vexatious or improper manner”, the order granting leave to appeal could be discharged. 24 The Court would usually assign solicitors and counsel to act for an appellant appealing in forma pauperis. 25 Such an appellant was not required to pay court fees. 26 Orders for costs were not usually made against someone suing in forma pauperis 27 unless an indulgence had been sought. 28 The state-funded legal aid system introduced under the Legal Aid Act 1969 replaced the in forma pauperis procedure

10 Under the rules as they were between 1882 and 2005, it was not open to the registrar of the court appealed from to dispense with security. 29 So there was no requirement for that registrar to address the likely merits of the appeal. Dispensation was for a judge of the court appealed...