Reid v Attorney-General [2013] NZCA 638 (11 December 2013)

Last Updated: 24 December 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA236/2012 [2013] NZCA 638
BETWEEN	JAMES ROBERT REID Applicant
AND	ATTORNEY-GENERAL Respondent

Counsel:	Applicant in person D Soper for Respondent
Judgment:	11 December 2013 at 12 pm

JUDGMENT OF O’REGAN P
(Application to Review Registrar’s Decisions)

1. The application to review the Registrar’s decision refusing to dispense with security for costs is dismissed. The applicant must pay the sum of $5,880 by way of security for costs within 20 working days of the date of this judgment.
2. The application to review the Registrar’s decision refusing to waive the setting down fee is dismissed. The applicant must pay the fee of $2,658.40 within 20 working days of the date of this judgment.

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REASONS

[1] The applicant appealed to this Court against an order made in the High Court ordering limited discovery be made by the respondent in proceedings under s 88B of the Judicature Act 1908. On 4 May 2012 this Court declined to hear the appeal before the conclusion of the s 88B proceedings in the High Court.^[1] Those proceedings have now concluded and the applicant was declared to be a vexatious litigant.^[2] However, the order does not prevent him pursuing this appeal. Although he has not appealed against the s 88B decision, he has indicated to the Court that he wishes to continue to pursue the present appeal.
[2] There are two outstanding applications that are dealt with in this judgment:

• (a) an application to review the decision of the Registrar refusing to dispense with security for costs;
• (b) an application to review the decision of the Registrar refusing to waive the setting down fee.

[3] An application by the applicant for review of the decision of the Registrar refusing to waive the filing fee for the present appeal was dismissed by Wild J. In Wild J’s decision, he summarised the background in tabular form as follows:^[3]

Date	Event
November 1998	The Attorney-General commenced a proceeding (Attorney-General v Reid, HC Wellington CP365/98) under the then s 88A Judicature Act 1908 seeking an order that Mr Reid not institute or commence civil proceedings except with the leave of the High Court.
February 2002	The Attorney-General discontinued that proceeding. The reason was apparently that Mr Reid had exercised restraint in his pursuit of extant and new litigation.
19 April 2011	Attorney-General commences a fresh proceeding (Attorney-General v Reid CIV-2011-454-254 against Mr Reid in the Palmerston North High Court, seeking orders under what is now s 88B Judicature Act 1908 – that Mr Reid not institute or continue any civil proceeding without leave of the High Court. The Attorney’s second amended statement of claim dated 20 April 2012 in that proceeding alleges that since 1984 Mr Reid has commenced at least 77 proceedings in different courts or tribunals in New Zealand. It further pleads that 54 of those have been determined against Mr Reid and a further 15 either stayed, adjourned, abandoned or not pursued. The Attorney allows that five of the proceedings were determined in Mr Reid’s favour, and that three remain extant.
1 June 2011	In his memorandum for the first case management conference of the proceeding, the Attorney stated: “No discovery or inspection is required for proceedings brought under ss 88B”.
2 June 2011	In his corresponding case management memorandum, Mr Reid stated: “Discovery and inspection of every item of litigation cited by the applicant is sought including the pleadings, Judge’s notes and judicial decisions. Discovery and inspection is also sought in relation to this proceeding ...”.
3 June 2011	The Minute of Associate Judge Gendall of the first case management conference gives no directions as to discovery. It does deal with the Attorney’s application to use certain affidavits from the 1998 proceeding in the fresh (2011) proceeding.
8 July 2011	A minute of Miller J of a telephone conference that day records: “[5] Discovery is not required at this stage, although Mr Reid indicated that he might seek discovery in specific matters”.
21 September 2011	Mr Reid applied to strike out the Attorney’s s 88B proceeding as “an abuse of process instituted for political purposes”.
10 October 2011	Mr Reid directed to the Attorney a notice requiring “discovery of all documents held by the Crown Law Office pertaining to the institution and conduct of these proceedings pursuant to paragraph [5] of the Minute of Justice Miller dated 8 July 2011”. He maintained that discovery was necessary “to determine whether the applicant is acting in the public interest as intended by Parliament when it enacted s 88B ... and empowered a politician (the Attorney-General) to institute proceedings instead of an independent statutory official (the Solicitor-General)”.
21 October 2011	The Attorney filed a notice of opposition to Mr Reid’s application for discovery. The first of the Attorney’s grounds of opposition was that “discovery is unnecessary in the context of s 88B Judicature Act 1908 proceedings”.
8 November 2011	Miller J made a minute of a telephone conference that day, which Mr Reid did not attend. That minute included: [4] Counsel advised that Mr Reid had signalled an application for discovery from the Attorney. Prima facie discovery is not warranted; any discovery that was relevant to any one of the subject proceedings will have been made in the context of such proceeding and need not be repeated ...”
3 April 2012	Keane and Woodhouse JJ made a minute of a telephone conference that day. In [2] and [3] of that minute they noted Mr Reid’s notice requiring discovery and gave directions as to the filing of submissions in relation to that, including by Mr Cooke QC who had been appointed amicus by Miller J back on 8 July 2011.

[4] The events subsequent to those set out in [3] above are:

1. The filing of the present appeal.
2. The decision of this Court declining to hear the appeal before the hearing of the substantive proceeding.

100. The High Court decision to declare the applicant a vexatious litigant. The applicant has not appealed that decision.

4. The decision of Wild J to uphold the Registrar’s decision refusing waiver of the filing fee.
5. The applicant paying the filing fee.

[5] The order challenged in this appeal is contained in the following part of a Minute issued by Keane and Woodhouse JJ on 17 April 2012:^[4]

[2] We have concluded, in broad agreement with Mr Cooke QC’s submissions, that there is a narrow category of documents which should be discovered because they may be relevant. We have also concluded that such documents are not subject to legal professional privilege or litigation privilege.

[3] Because of time constraints we will provide our reasons for these conclusions in due course.

[4] There is an order that the applicant make discovery of documents as follows:

(a) A document from or on behalf of any of the defendants or respondents in the proceedings referred to in paragraphs 63 to 91 of the first amended statement of claim and being a communication in the nature of a complaint to the applicant, or another officer or employee of the Crown, to the effect that the respondent had instituted, or was instituting, vexatious legal proceedings.

(b) This order does not apply to any document which came into existence once the applicant, or officers acting on behalf of the applicant, had commenced investigation of any such complaint, or communication in the nature of a complaint.

(c) This order will be sufficiently complied with if the Crown Law Office sends to Mr Reid copies of documents described in sub-paragraph (a).

[6] The applicant does not rely on impecuniosity. His applications are based on the proposition that the appeal raises a matter of public interest.
[7] In her decision refusing to dispense with security for costs, the Registrar referred to the following statement from Wild J’s judgment dismissing the applicant’s application for review of the Registrar’s decision refusing to waive the filing fee:

... I cannot see that the public interest is in any way served by Mr Reid pursuing this appeal. On the contrary, I view it as a vexatious and unnecessary distraction from the substantive proceeding.

[8] The Registrar concluded that security was necessary to protect the respondent in terms of any costs that could be awarded against the applicant on the appeal.
[9] In her decision refusing to waive the setting down fee, the Registrar said:

After considering the application I am of the view that on the material you have supplied, there is not a question of law that is of significant interest to the public or to a substantial section of the public, rather the judgment relates to a particular set of facts relating only to you.

[10] In his application for review in relation to the setting down fee, the applicant says:

The Registrar is wrong in concluding that Government secrecy about exercising statutory authority in the public interest is not a public issue.

[11] I agree with the Registrar that the present appeal does not raise issues of significant public interest. It concerns a procedural ruling in the course of management of the s 88B application. There is nothing in the High Court decision to support the need for further discovery. The only interest at stake appears to be the applicant’s personal interest.
[12] The applicant does not therefore meet the requirement in reg 5(4) of the Court of Appeal Fees Regulations 2001 for a waiver of the setting down fee. No error on the part of the Registrar has been demonstrated. That application is therefore dismissed.
[13] Nor does the applicant meet the criteria for dispensation from the requirement to pay security for costs.^[5] There is nothing exceptional about his appeal and, as noted above, no public interest is at stake. There is nothing to indicate that a refusal to dispense with security will render the applicant’s appeal nugatory. As noted earlier, Wild J’s assessment of the merits of the appeal was unfavourable to the applicant. Again, no error on the Registrar’s part has been shown.
[14] I therefore dismiss the applicant’s applications for review.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Reid v Attorney-General [2012] NZCA 174.

^[2] Attorney-General v Reid [2012] NZHC 2119, [2012] 3 NZLR 630.

^[3] Reid v Attorney-General CA236/2012, 12 July 2012.

^[4] Attorney-General v Reid HC Palmerston North CIV-2011-454-254, 17 April 2012.

^[5] The relevant principles are set out in Easton v Broadcasting Commission [2009] NZCA 252, (2009) 19 PRNZ 675 at [5]; Hills v Public Trust [2010] NZCA 401 at [13]–[15]; and Clark v Clark [2013] NZCA 284 at [6].