Reekie v Her Majesty's Attorney-General for New Zealand [2013] NZCA 318 (18 July 2013)

Last Updated: 25 July 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA532/2012 [2013] NZCA 318
BETWEEN	NICHOLAS PAUL ALFRED REEKIE Appellant
AND	HER MAJESTY'S ATTORNEY-GENERAL FOR NEW ZEALAND First Respondent HER MAJESTY'S ATTORNEY-GENERAL FOR HER MAJESTY THE QUEEN Second Respondent THE DISTRICT COURT AT WAITAKERE Third Respondent

Hearing:	8 July 2013
Court:	O'Regan P, Ellen France and Wild JJ
Counsel:	Appellant in Person with R Wood as McKenzie friend J Foster for Respondents
Judgment:	18 July 2013 at 11.30 am

JUDGMENT OF THE COURT

The application for an extension of time to appeal is granted.
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REASONS OF THE COURT

(Given by Wild J)

[1] By application filed on 19 March 2013, Mr Reekie seeks an extension of time to appeal. He is seeking to appeal a judgment of Wylie J delivered in the High Court at Auckland on 30 July 2012.
[2] In a direction he gave on 9 October 2012 White J directed Mr Reekie to file and serve, by 23 November 2012, an amended notice of appeal identifying those parts of the judgment appealed against, the grounds of appeal, and the relief sought.^[1] Failing compliance, White J’s direction stated that Mr Reekie’s appeal “will be treated as abandoned pursuant to r 30(3) of the Court of Appeal (Civil) Rules [2005]”.
[3] Mr Reekie did not file his amended notice of appeal until 7 December 2012. He was thus nine working days out of time.
[4] On 21 December the Crown filed a memorandum requesting that the appeal be treated as abandoned.
[5] On 4 February 2013 White J directed that Mr Reekie be given an opportunity to respond to the Crown’s memorandum and to apply for an extension of time for the filing of his amended notice of appeal, by 22 February 2013. Mr Reekie did apply, filing his application on 20 February.
[6] None of the excuses or explanations Mr Reekie has advanced for the situation just outlined have any force. For example, he complained that for a period following his transfer back from Springhill Prison to Auckland Regional Prison he did not have access to his court documents. But Mr Reekie accepts that by 14 September 2012 he again had access to everything he needed.
[7] However, Mr Reekie was only nine working days out of time, and Ms Foster accepts that was a short delay which has not prejudiced the respondents. Instead, Ms Foster submits an extension should not be granted because Mr Reekie’s appeal lacks any merit. It is a challenge to findings of fact made in a careful and thorough judgment upon the evidence of witnesses who gave evidence before the Judge, including under cross-examination, and in respect of whom the Judge made assessments of credibility and reliability. Ms Foster argues that Mr Reekie will face an impossible task in trying to persuade this Court to differ from the Judge’s findings, when this Court will not have seen or heard any of the witnesses.
[8] Given that Mr Reekie’s delay in filing his amended notice of appeal was short, and has not prejudiced the respondents, we intend granting Mr Reekie’s application to extend time. We appreciate – of course – that this involves granting Mr Reekie a second indulgence. Beyond making two observations, we prefer to say nothing about the merits of this appeal.
[9] Our first observation is this. In preparing to argue this appeal, Mr Reekie needs to confront the uphill battle he faces if he is trying to persuade this Court to differ from findings of fact by Wylie J based on his assessment of the credibility of witnesses he heard and saw – an advantage this Court will not have. That is referred to by the Supreme Court in its judgment in Austin, Nichols & Co Inc v Stichting Lodestar.^[2]
[10] Our second observation is that Mr Reekie should not confuse length and detail with cogency. The amended notice of appeal he filed on 7 December is 69 pages, 156 paragraphs, long. It seeks to impugn, almost paragraph by paragraph, the judgment of Wylie J. We urge Mr Reekie to try and identify any findings which he considers he can seriously submit are either unsupported by any evidence, or are wrong on the evidence, and to focus on those.
[11] The application is granted. Time for appeal is extended to 7 December 2012, the day on which Mr Reekie filed his amended notice of appeal.
[12] We note that Mr Reekie has sought leave to appeal to the Supreme Court against White J’s decision dismissing an application to review the Registrar’s decision that Mr Reekie must give the respondents security for their costs of this appeal.^[3] If that application is unsuccessful, Mr Reekie will need to give security before he can progress this appeal. If the Supreme Court rules against the requirement for security, then of course Mr Reekie can get on with this appeal. Either way, if Mr Reekie is able to progress the appeal, he can expect this Court to give directions to ensure that it is heard as soon as practicable, and in a focused manner.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] White J’s direction gave Mr Reekie 30 working days from 13 October 2012. Those 30 working days expired on 23 November 2012.

^[2] Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].

^[3] Reekie v Attorney-General [2013] NZCA 131.