Banks v Attorney-General [2010] NZCA 342 (2 August 2010)

Last Updated: 10 August 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA101/2010

[2010] NZCA 342

AND BETWEEN KEVIN RAYMOND BANKS
Applicant

AND THE ATTORNEY-GENERAL
Respondent

Counsel: E Orlov for Applicant
J C Holden for Respondent

Judgment: 2 August 2010 at 10.30 am

JUDGMENT OF ARNOLD J

The application for review of the Registrar’s refusal to dispense with security for costs is declined. The applicant must pay $3,555 by way of security for costs within 20 working days of the date of this decision.

REASONS

Introduction

[1] The applicant, Mr Banks, has filed an appeal and applied to the Registrar for a dispensation from the requirement to pay security for costs. The Registrar declined to waive security but reduced the amount to $3,555, which is 75 per cent of the sum normally required. This is an application for review of that decision.

Background

[2] In September 2006 Mr Banks brought a claim against the Attorney-General (as representative of the Ministry of Social Development) for physical, sexual and psychological abuse which he alleged he suffered in 1973 while he was at a Boys’ Home administered by the Department of Social Welfare. The claim comprised several causes of action: negligence, breach of a non-delegable duty, assault and battery, false imprisonment and breach of fiduciary duty. The Attorney-General pleaded that the proceeding was time-barred. Mr Banks then filed an application for leave to bring the claim out of time on “reasonable discoverability” and “disability” grounds.

Reasonable discoverability

[3] Gendall J held that Mr Banks’ claim was an action in respect of bodily injury, which had a two year limitation period.[1] Mr Banks submitted that leave could be granted to allow the case to proceed as the absolute limitation period of six years had not elapsed since the cause of action accrued.[2]
[4] Gendall J noted that a cause of action accrues when all facts necessary to establish the claim are in existence. Where a claim is based on a deliberate tort requiring lack of consent, the cause of action accrues when the plaintiff should have recognised that true consent was not given.[3] Where damage is a required element of the cause of action, such as in negligence, then the cause of action does not accrue until the damage is or should reasonably have been identified as being linked to the events which allegedly caused the damage.[4] The Judge considered it uncertain whether the “reasonable discoverability” approach was available when psychological damage was alleged to arise from physical abuse.[5]
[5] But the Judge did not have to consider this as he found that there was no evidentiary foundation for the claim that Mr Banks could not and did not identify the damage he alleged as being linked to his time in the Boys’ Home. The Judge noted that Mr Banks had lived at the Lake Alice Hospital both before and after the time he was in the Boys’ Home. When interviewed in 1977 regarding complaints he made in relation to mistreatment at Lake Alice, Mr Banks recalled physical and psychological harm. Moreover, Mr Banks was a party to proceedings brought against the Attorney-General in 1999 by a number of Lake Alice residents in which it was alleged that they suffered harm as a result of physical and sexual assaults and abuse inflicted on them by members of staff. Those proceedings were ultimately settled.
[6] The Judge held that Mr Banks’ ability to recall abuse at Lake Alice in 1977 and later in 1999 strongly pointed against Mr Banks lacking understanding at those dates regarding the connection between abuse and damage at the Boys’ Home. Absent expert evidence supporting Mr Banks’ contention that he was unable to appreciate the link between events at the Boys’ Home and his psychological injuries, issues of “reasonable discoverability” did not arise.[6]

Disability

[7] Gendall J then dealt with the situation where the accrual of the limitation period is suspended while the plaintiff remains under a disability.[7] The Judge noted that an extension of time was only permitted if the disability prevented the plaintiff from suing.[8] There was no evidence, expert or otherwise, to support the view that Mr Banks was at any stage inhibited in his ability to sue through mental trauma or such like. The Judge said that, although Mr Banks may have suffered from post-traumatic stress disorder, he was able to pursue complaints about his treatment at Lake Alice as early as 1977, and again in 1999.[9]
[8] After finding no disability sufficient to suspend the running of time, the Judge considered time began to run at the latest from 1999, so that any application for leave had to be made by 2005. The claims in 2006 for negligence, breach of a non-delegable duty, assault and battery, and false imprisonment were out of time. In noting that breach of fiduciary duty was technically an equitable cause of action, Gendall J considered the claim was analogous to tort as it concerned breach of a duty of care.[10]
[9] Finally, counsel for Mr Banks submitted at the hearing that there were also broader grounds relating to breaches of international covenants. Gendall J held that the submissions could not succeed as domestic law prevailed in the courts of New Zealand, and the claims were statute-barred.[11]
[10] In the result, all Mr Banks’ claims were time-barred. Gendall J declined the leave application for want of jurisdiction. Mr Banks then appealed to this Court, and applied for a dispensation from the requirement to pay security for costs.

Security for costs

[11] In the normal course, appellants in civil proceedings in this Court are required to pay security for costs.[12] 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.[13] The Registrar may vary or waive security “if satisfied that the circumstances warrant it”.[14] A party who is dissatisfied with the Registrar’s decision may apply to a Judge for a review of the Registrar’s decision. Such an application must be made within 10 working days after the decision,[15] although a Judge may extend that time limit.[16]
[12] Security for costs will be waived where it is in the interests of justice to do so. Given that the normal rule is that security must be provided, there will need to be some exceptional circumstance to justify waiver.[17] The circumstances of the appeal are relevant, in the sense that the appellant must honestly intend to pursue it and it must be arguable – 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 whether there is any public interest in having them determined.[18] Impecuniosity alone is not usually sufficient to justify a waiver, but may be reason to reduce the quantum of security.[19]

The Registrar’s decision

[13] Mr Banks applied for a waiver or reduction of security on the basis that he had an arguable case; the claim raised important issues of human rights and state practice in respect of international covenants; Mr Banks faced “financial hardship”; and access to justice would be denied if security was not reduced or waived. Counsel for Mr Banks referred to the fact that he was acting pro bono in support of these grounds.
[14] The Registrar considered Mr Banks’ failure to obtain legal aid and the award of costs against him in the High Court meant that a waiver of security was not appropriate. However, security was reduced to 75 per cent of the usual amount, that is $3,555.

Discussion

[15] Mr Banks applies for a review of the Registrar’s decision on the grounds that the appeal will be unable to proceed unless security is further reduced or waived; the claim relates to fundamental human rights involving the public interest; and it is generally in the interests of justice to grant a reduction or waiver.
[16] While counsel is acting pro bono, that is insufficient to demonstrate Mr Banks’ impecuniosity. There is no further information in the application to support the ground of financial hardship. However, even assuming that Mr Banks is impecunious, that is not of itself sufficient – something more is required.
[17] The claim is said to concern the fundamental human right to bodily integrity, as contained in ss 9 – 11 of the New Zealand Bill of Rights Act 1990 (NZBORA) and art 7 of the International Covenant on Civil and Political Rights (ICCPR).[20] On behalf of Mr Banks, Mr Orlov challenges the Limitation Act in light of art 14 of the ICCPR, which provides that all persons are equal before the law, and s 27 of NZBORA, which provides for the right to natural justice.
[18] However, the appeal faces two particular difficulties. First, Mr Banks’ application for leave failed on the facts. Gendall J found there was no evidence to support his assertion that he was labouring under a disability or was unable to make the necessary connections until 2006 when the proceedings were issued. This Court has recently dismissed an appeal raising similar issues on the basis that there was no evidence to support an extension of the limitation period.[21] To the extent that there are difficult issues of law in this area, they do not arise in this particular case. Second, the claim in the High Court did not include breaches of NZBORA. Rather, the causes of action were negligence, breach of fiduciary duty and intentional torts. Those causes of action were subject to the Limitation Act and time-barred. Gendall J’s treatment of breach of fiduciary duty as analogous to tort is consistent with previous authority[22] and is recognised in the Limitation Act.[23] That claim too was out of time.
[19] Given the factual difficulties that Mr Banks faces, I do not consider that the appeal engages any issue of public interest, and there is no evidence of Mr Banks’ financial position. In these circumstances, I consider the Registrar was right to require Mr Banks to pay security for costs. I see no basis to interfere with the amount she has fixed.

Decision

[20] The application for review of the Registrar’s refusal to dispense with security for costs is declined. The applicant must pay $3,555 by way of security for costs within 20 working days of the date of this decision.

Solicitors:
Alastair McClymont, Auckland for Applicant
Crown Law Office, Wellington for Respondent

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[1] Limitation Act 1950, s 4(7).
[2] Ibid.
[3] Banks v Attorney-General [2009] NZHC 2177; [2010] NZAR 264 (HC) at [27].
[4] At [32].
[5] At [33].
[6] At [40].
[7] Limitation Act 1950, s 24.
[8] At [43].
[9] At [45].
[10] At [50] and following.
[11] At [59].
[12] Court of Appeal (Civil) Rules 2005, r 35(2).
[13] Rule 35(3) and (6).
[14] Rule 35(6).
[15] Rule 7(3).
[16] Rule 5(2).
[17] Fava v Zaghloul [2007] NZCA 498 at [9].
[18] Creser v Official Assignee CA196/05, 12 June 2006 at [29].
[19] Fava v Zaghloul at [9]; Easton v Broadcasting Commission [2009] NZCA 252 at [5].

[20] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976).
[21] White v Attorney-General [2010] NZCA 139.

[22] See Marsh v Attorney-General [2010] 2 NZLR 683 (HC) and the cases discussed therein at [20]–[22].
[23] Limitation Act 1950, s 4(9).