Selling Justice Goes on Trial

SELLING JUSTICE GOES ON TRIAL

After years of New Zealand courts preventing hundreds if not thousands of similar appeals on “well-established” legal principles, the Supreme Court has granted leave to a prisoner who claims his right of appeal to the Court of Appeal has been unduly prevented by imposition of unaffordable security for costs.

‘Security for costs’ is a regime which requires poor litigants pay into court the anticipated legal costs of their adversary before the New Zealand courts will consider their legal claim. Most countries prohibit the practice as a draconian restraint on access to justice. Ironically, the NZ Court of Appeal which imposed the order in this case, and against many others who then sought challenge to the Supreme Court, has ” To no one will we sell, to no one will we refuse or delay, right or justice” emblazoned on its building.

On 25 July, the Supreme Court agreed to hear the appeal SC47/2013 Reekie v Attorney General on the ground “Whether a waiver of security for costs should have been granted?” This agreement to consider an appeal against a security for costs order on a factual ground created consternation in the legal community given the Supreme Court’s recent refusals to consider no less than six challenges to the security for costs regime on legal grounds. Each previous refusal curtly stated the process governing imposition of security for costs in New Zealand was well-settled law.

Queen Street lawyer Gregory Thwaite earlier this year filed a formal complaint with the United Nations Human Rights Committee attacking the New Zealand security for costs regime as a discriminatory constraint on access to justice based upon ‘lack of property’. The UNHRC would likely have asked the NZ government for a formal response to this complaint just prior to the Supreme Court granting Reekie leave to appeal. Erstwhile lawyer Barry Hart has let it be known recently he is preparing a similar UN challenge.

Nicholas Reekie (pictured), currently serving time in Paremoremo Prison in Auckland, sought to appeal a judgment of Edwin Wylie J which found ‘no evidence’ of unlawful detention and torture after a substantive hearing in the High Court. Reekie’s appeal asserts the judge might find the evidence inadequate but that it was a self-evident error to declare no evidence existed.

The Court of Appeal Registrar imposed a $5,880 order of security impediment to an appeal hearing. Upon application by Reekie, the Court of Appeal Registrar refused to waive security, accepting his inability to pay the $5,880 but stating she did not consider the appeal held any significant public importance. Save for the name and case number, the ‘decision’ Mr Reekie received from the Registrar is the same form letter sent out to every appellant seeking a waiver of security.

Justice Douglas White issued a two page dismissal of Reekie’s application for judicial review of the Registrar’s refusal.   Parcel to the ‘well-settled’ law governing security for costs in New Zealand, the Registrar’s refusal counts as a judicial decision and the judge’s review the only appeal available by right.

Given the open-ended approved ground, the Supreme Court will be hard-pressed to keep the lid on this scheme which it has long held to meet all Rule of Law requirements, as well as consistently applied, fair and reliable. Relevantly, Mr Reekie has raised the same issues previously rejected by the Supreme Court, including the ground that security for costs impediments to insulate Crown respondents with a legal duty of care violates the Bill of Rights Act and amounts to unlawful State protection.