Nicholas Paul Alfred Reekie v Attorney-General

JurisdictionNew Zealand
CourtSupreme Court
JudgeWilliam Young J
Judgment Date29 May 2014
Neutral Citation[2014] NZSC 63
Date29 May 2014
Docket NumberSC 47/2013

[2014] NZSC 63



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

SC 47/2013

SC 102/2013

Nicholas Paul Alfred Reekie
First Respondent
District Court at Waitakere
Second Respondent
Nicholas Paul Alfred Reekie
Department of Corrections and Visiting Justice to Spring Hill Correctional Facility

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

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two decisions of the High Court relating to breaches of his rights while a prisoner — one of appeals related to now repealed legislation — security for costs orders were made by the Registrar of the Court of Appeal (CA) and the appellant's subsequent challenges to them were dismissed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.

Held: (1) Review by a panel of three CA judges: The review function of the judge in relation to security for costs under r7(2) Court of Appeal (Civil) Rules 2005 (“Civil Rules”)((Judge may exercise certain powers under rules) and s61A JA (incidental orders and directions may be made and given by 1 Judge) was to be exercised de novo for two reasons: the first was that it corresponded to that historically exercised by judges and the second was that the Judge was better placed that the Registrar to decide whether dispensing with security was appropriate, particularly where this involved an assessment of the merits of the appeal.

The current status of dispensation decisions of judges of the CA in respect of appeals would be less awkward if decisions under s61A(3) were subject to review under s 61A(2). This, however, was not in accordance with the structure of the section. Review decisions of a single judge under s61A(3) JA were not subject to further review under s 61A(2).

(2) Principles to be applied in considering dispensations: The current principles applied by the CA in reviewing dispensation decisions were:

a) it was for the appellant to show impecuniosity;

b) impecuniosity was not in itself enough to warrant dispensing with security;

c) security was the norm and security should be dispensed with only in exceptional circumstances and

d) a reduction in the amount of security required might, in some cases, meet the justice of the case and

e) some assessment of the merits of the case was required, along with an assessment of whether the appeal raised issues of public interest.

In most cases, security was not dispensed with. In such cases, the judge had usually seen the appeal to the CA as being hopeless or of doubtful merit. An impecunious appellant did not have to show an exceptionally strong case – or anything of that sort – to warrant dispensation. Subject to that possible caveat, the principles as they had been applied since 2005 generally appeared unexceptionable.

The approach to be adopted in the future was not substantially inconsistent with these principles but it was more elaborate and more closely focused on the types of case which had given rise to difficulty. The discretion to dispense with security should be exercised so as to:

a) preserve access to the CA by an impecunious appellant in the case of an appeal which a solvent appellant would reasonably wish to prosecute; and

b) prevent the use of impecuniosity to secure the advantage of being able to prosecute an appeal which would not be sensibly pursued by a solvent litigant.

A reasonable and solvent litigant would not proceed with an appeal which was hopeless or where the benefits (economic or otherwise) to be obtained were outweighed by the costs (economic and otherwise) of the exercise (including the potential liability to contribute to the respondent's costs if unsuccessful).

Security for costs would not be required where legal aid was granted. The respondent to an appeal which was funded on legal aid would not be able to recover costs if successful.

Providing the case was of the kind which would be appropriate for a grant of legal aid, an impecunious litigant who was privately represented should be able to obtain a dispensation from the requirement to provide security.

Where the appellant was a litigant in person, it would be legitimate to inquire into whether legal aid had been sought. If legal aid had been sought and declined on the basis of merits or cost/benefit assessments, the appellant would not be well placed to obtain dispensation. The same might be true of an appellant who was not prepared to submit the proposed appeal to such assessment.

Protecting respondents from vexatious appeals was a legitimate purpose of the security for costs regime.

As litigants in person might be more prepared to engage in litigation which, when viewed in light of the costs that others incurred, was disproportionate to the occasion and which therefore would not be prosecuted by a solvent litigant, the Registrar or reviewing Judge might conclude that it was unjust to require the respondent to defend the judgment without the protection of security.

Cost and benefit were not to be assessed in purely financial terms. An appeal might raise issues of public interest which were not measurable in economic terms. As well, considerations which were personal to an appellant (for instance, considerations affecting reputation) might legitimately fall to be considered as part of the cost/benefit assessment.

In terms of establishing impecuniosity, a waiver of fees granted by the Registrar could be indicative of impecuniosity but it was not conclusive, as security for costs was an inter parties issue. It might be appropriate to investigate whether it is reasonable for another party (such as a related family trust or a close relative) to provide funding.

In cases in which an appellant could not meet what would otherwise be an appropriate order for security but was able to come up with some money, a reduction in the amount of security might be appropriate. For this reason, it might be sensible for the Registrar or reviewing judge to make inquiries as to what, if any, security the appellant could provide.

R's appeals:

R had established impecuniosity had been established. Although the CA judge's decision was orthodox at that time, the above re-consideration and restatement required dispensation to be considered afresh. While R's appeal was not hopeless, he had not suffered perceptible prejudice. There was no continuing public significance given the changes in the legislative scheme by the repeal of the relevant Act. It was unlikely the CA would have interfered in the decision.

R had chosen not to apply for legal aid. Had he applied for legal aid, there would have been independent merits and cost/benefit assessments. R wished to relitigate the entire case which was not what a reasonable and solvent litigant would engage in. It followed that allowing R to proceed without security for costs would allow him to use his impecuniosity to obtain advantage. It would not be just to require the respondents to defend the judgment without security for costs and R's appeal was dismissed.

In respect of the Rodney Hansen J decision, R's notice on appeal was longer than the judgment itself. Every finding of the Judge on a disputed issue was challenged. While some of the challenges were not completely hopeless, none appeared to be particularly cogent and the prospects of R achieving substantial success were remote. Legal aid had not been sought. Assuming a grant of legal aid, it was inconceivable that counsel would conduct the case on the basis proposed by R. The effect of the decisions in question was spent and the proposed appeal was of little or no practical moment for R and of no public significance in terms of a vindication of rights. It would not be just to require the respondents to defend the judgment without security for costs and his application for leave to appeal was dismissed.

Appeal and application for leave to appeal dismissed.


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


(Given by William Young J)

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

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

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...

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