The application for review of the Registrar’s refusal to waive the requirement to pay security for costs is declined.
However, the amount fixed by way of security is reduced from $16,680 to $11,120, to be paid within 20 working days of the date of this judgment.

REASONS

Introduction

[1] In conjunction with filing an appeal against a decision of Keane J striking out an application for judicial review,[1] the applicant, Mr Reekie, sought a dispensation from the requirement to pay security for costs. The Registrar declined his application and security was set at $16,680. Mr Reekie now seeks a review of that decision.

Background to appeal

[2] On 9 March 2000, Mr Reekie was convicted and sentenced to imprisonment for burglary and aggravated assault. On 15 May 2001 a blood sample was taken from him under the Criminal Investigations (Bodily Samples) Act 1995. Mr Reekie resisted the taking of the sample, so that departmental officials were required to restrain him to allow a doctor to take it. Mr Reekie wished to bring civil proceedings to challenge this, on the basis that unreasonable force was used and his rights were infringed. In that context he applied for civil legal aid. When the Legal Services Agency (LSA) declined his request, Mr Reekie did not apply to the Legal Aid Review Panel (the Panel) for a review of the decision.
[3] In May 2003, Mr Reekie went to trial for serious sexual offending and was represented by counsel appointed on criminal legal aid. The Crown relied on DNA obtained from the blood sample taken in 2001 and Mr Reekie was convicted. He was sentenced to preventive detention with a minimum term of imprisonment of 25 years.[2] He lodged an appeal against both conviction and sentence but later abandoned his conviction appeal. On the sentence appeal, the minimum term of imprisonment was reduced to 20 years.[3]
[4] Mr Reekie made further requests for civil legal aid in 2005 and 2006 in relation to his proposed civil proceedings challenging the taking of the blood sample. The 2005 application was declined but the 2006 application resulted in an interim grant to allow counsel to report on the merits of the proposed proceedings.
[5] Concerned that Mr Reekie’s claim might become time-barred, counsel prepared a statement of claim. It contained causes of action against the doctor who took the sample for assault and against the Attorney-General on behalf of the Department of Corrections for assault and breaches of the New Zealand Bill of Rights Act 1990 (NZBORA). The statement of claim was filed on 15 May 2007.
[6] On 3 June 2008 the LSA withdrew the interim grant of legal aid on the ground that Mr Reekie’s claims had little prospect of success. Counsel applied to the Panel for review, but on 5 September 2008 it upheld the LSA’s decision to refuse legal aid. Mr Reekie’s civil proceeding was heard in September and October 2008, with Mr Reekie appearing for himself with a McKenzie friend. On 22 December 2008 Andrews J dismissed the claims as time-barred[4] and held that in any case they were without merit as the defendants had statutory immunity from civil liability.[5]
[7] Mr Reekie appealed against the Panel’s decision to the High Court. On 20 February 2009, before the appeal was heard, the Panel issued a second decision in which it held that some legal aid was appropriate. The High Court appeal nevertheless went ahead on 26 February 2009. On 6 March 2009 Asher J dismissed the appeal, holding that the point was moot as the case had already been heard and that, in any event, the Panel had not erred in law in its decision of 5 September 2008.[6]
[8] On 11 March 2010 Mr Reekie sought to appeal out of time against the decision of Andrews J. He also applied to adduce further evidence, to the effect that he was under a disability when the cause of action accrued so that time did not start running until a later date.[7] This Court declined to receive the evidence as Mr Reekie had been assisted by counsel prior to trial.[8] The Court also held that the appeal did not have sufficient merit to justify the grant of an extension of time. The doctor had a clear limitation defence and while claims under NZBORA may not be subject to the Limitation Act 1950, the Department of Corrections was authorised by legislation to obtain the blood sample by reasonable force if necessary and the officers of the Department were immune from civil suit. A subsequent application to this Court for that decision to be recalled was also declined.[9]
[9] Mr Reekie then applied for judicial review of the LSA and Panel’s decisions not to grant legal aid and of Asher J’s dismissal of the legal aid appeal. In that context he sought public law compensation. Mr Reekie claimed that in declining legal aid until 2009 the LSA and Panel had breached NZBORA as he was unable to prosecute his civil claims because they had become time-barred. In response the defendants applied to have the proceeding struck out as not containing any arguable cause of action and on the ground that the subject matter was “res judicata”.
[10] In striking out the judicial review proceedings, Keane J observed that the decisions of High Court judges were not susceptible to judicial review and that judges are immune from suit.[10] In relation to the LSA and Panel, Mr Reekie had not exhausted his rights of review or appeal in relation to each of the legal aid decisions. The judicial review proceedings amounted to an impermissible collateral attack on the legal aid appeal and decisions of the LSA and Panel. Mr Reekie had also failed to challenge the DNA evidence at trial and had abandoned his appeal against conviction. In that sense, the judicial review was an attempt to relitigate his convictions and the civil claim. The Judge concluded that the proceeding was not merely untenable but was vexatious and an abuse of process.[11]
[11] Mr Reekie then filed the present appeal against Keene J’s decision and sought a dispensation from the requirement to pay security for costs. He said that, as a sentenced prisoner facing a long term of imprisonment, he was impecunious. The filing fee of $900 was waived but the Registrar fixed security for costs at $16,680.[12] The Registrar noted that while Mr Reekie was impecunious, that alone was insufficient to dispense with security. Keane J’s conclusion that the proceeding was vexatious and an abuse of process meant the respondents were entitled to some protection for their costs.

Principles

[12] In the normal course, appellants in civil proceedings in this Court are required to pay security for costs.[13] 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.[14] The Registrar may vary or waive security “if satisfied that the circumstances warrant it”.[15]
[13] Security for costs will be waived if it is in the interests of justice to do so. There must be some exceptional circumstance to justify waiver.[16] Impecuniousity alone is not usually sufficient to justify a waiver, but may justify a reduction of the amount of security required.[17] The appellant must honestly intend to pursue the appeal and it must be arguable, as respondents should not face the threat of hopeless appeals without provision for security. The importance of the issues raised in the appeal will be relevant, as will the question whether there is any public interest in having them determined.[18]

Discussion

[14] Mr Reekie will continue to be imprisoned for a lengthy period and the amount of security set is significant. I accept that Mr Reekie is genuinely impecunious and the appeal will be unable to be pursued if security is not waived or significantly reduced. However, I agree with the Registrar that a full dispensation from the requirement to pay security is not warranted in this instance.
[15] Keane J observed Mr Reekie’s objective in the judicial review proceedings was to set aside the legal aid decisions, which would allow him to re-appeal the decisions adverse to him in his civil proceedings and then his convictions.[19] This is also clear from Mr Reekie’s notice of appeal where he seeks as a remedy the reinstatement of the civil proceedings. That constitutes an improper attempt to relitigate concluded litigation.
[16] Further, the appeal does not appear to have any prospects of success. Mr Reekie’s notice of appeal states Keane J’s decision was wrong in law and manifestly unreasonable. However, Mr Reekie accepted before Keane J that the decisions of High Court judges were not susceptible to judicial review, and in any event, judges are immune from civil suit when acting in a judicial capacity.[20] Further, Mr Reekie did not exhaust his review and appeal rights under the Legal Services Act 2000 in relation to the decisions of the LSA and Panel. Judicial review should be used sparingly where existing appeal rights have not been exhausted.[21] Keane J found that Mr Reekie had failed to use judicial processes properly and that his proceedings were vexatious and an abuse of process.[22] Mr Reekie disputes this, but it is clear that Keane J was right in his assessment.
[17] Finally, Mr Reekie has not put forward any grounds in support of the public interest of the appeal, and none seem evident on the face of the matter. Considering the appeal is not arguable the respondents are entitled to some protection from the costs of defending the appeal.
[18] However, there are grounds for a reduction in security. Security was set at $16,680 in recognition of there being three respondents each with their own counsel.[23] Before Keane J the Panel took the same stance as the LSA and were represented by a single counsel. There seems to be no reason why a similar approach should not be adopted on this appeal. In recognition of this and considering the applicant’s impecuniosity, it is appropriate for security to be reduced to the amount payable for two respondents with independent counsel, namely $11,120. It may be that the requirement to pay this sum will still prevent Mr Reekie from pursuing the appeal, but the respondents are entitled to some protection given that the appeal appears to be hopeless and an abuse of process.

Decision

[19] The application for review of the Registrar’s refusal to waive the requirement to pay security for costs is declined. However, the amount fixed by way of security is reduced from $16,680 to $11,120, to be paid within working 20 days of the date of this decision.

Solicitors:
Crown Law, Wellington for Respondents

[1] Reekie v Legal Services Agency [2010] NZHC 1391; [2010] NZAR 617 (HC).

[2] R v Reekie HC Auckland T021833, 15 July 2003.

[3] R v Reekie CA339/03, 3 August 2004.

[4] Limitation Act 1950, s 4(7).

[5] Reekie v Attorney-General [2009] NZAR 304 (HC).

[6] Reekie v Legal Services Agency HC Auckland CIV-2008-404-6451, 6 March 2009.

[7] Limitation Act 1950, s 24.

[8] Reekie v Attorney-General [2009] NZCA 598 at [6]- [7].

[9] Reekie v Attorney-General [2010] NZCA 39.

[10] Reekie v Legal Services Agency [2010] NZHC 1391; [2010] NZAR 617 (HC) at [5].

[11] At [49].

[12] Court of Appeal (Civil) Rules 2005, r 35(4) and (5).

[13] Rule 35(2).

[14] Rule 35(3) and (6).

[15] Rule 35(6).

[16] Fava v Zaghloul [2007] NZCA 498 at [9].

[17] Fava v Zaghloul at [9]; Easton v Broadcasting Commission [2009] NZCA 252, (2009) 19 PRNZ 675 at [5].

[18] Creser v Official Assignee CA196/05, 12 June 2006 at [29].

[19] At [37].

[20] At [39]. See Crown Proceedings Act 1950, s 6(5).

[21] Fraser v Robertson [1991] 3 NZLR 257 (CA) at 260.

[22] At [49].

[23] Rule 35(4).

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