Attorney-General v Siemer - [2022] NZCA 632

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA387/2022
[2022] NZCA 632

BETWEEN	ATTORNEY-GENERAL Appellant REGISTRAR OF THE SUPREME COURT Second Appellant
AND	VINCENT ROSS SIEMER Respondent

Court:	Miller and Brown JJ
Counsel:	P J Gunn for Appellants Respondent in person
Judgment: (On the papers)	16 December 2022 at 10.00 am

JUDGMENT OF THE COURT

The application for an extension of time under r 43(2) of the Court of Appeal (Civil) Rules 2005 to file a case on appeal and apply for the allocation of a hearing date is granted.

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REASONS OF THE COURT

(Given by Brown J)

The application

By notice of appeal filed on 3 August 2022 the first and second appellants appeal[1] against interlocutory orders made by the High Court in a judgment dated 5 May 2022, namely an order consolidating Attorney-General v Siemer[2] with Siemer v Registrar of the Supreme Court[3] (the consolidation order) and orders ruling inadmissible several items in the Attorney-General’s bundle of documents (the evidence orders).[4]
[1]Pursuant to leave granted on 19 July 2022: Siemer v Registrar of the Supreme Court [2022] NZHC 1724.
[2]Attorney-General v Siemer CIV-2021-404-1955.
[3]Siemer v Registrar of the Supreme Court CIV-2021-485-177.
[4]Attorney-General v Siemer [2022] NZHC 917.
On 3 November 2022 the first appellant filed an application for a two-week extension of time in which to comply with r 43(1) of the Court of Appeal (Civil) Rules 2005 by filing the case on appeal and seeking an allocation of a hearing date. The grounds for the application are:
·     that both counsel previously assigned to this matter have now left the Crown Law Office and assigned counsel has had other recent pressing commitments;
·     that the limited extension sought will not prejudice the respondent or inconvenience the Court; and
·     that is it is in the public interest that an appeal be heard against her Honour’s judgment.
On 9 November 2022 the respondent filed a memorandum in opposition to the application for an extension of time. In summary the grounds of opposition are:
(a)the respondent is suffering significant and on-going prejudice by the delay in the progress of the proceedings;
(b)the prejudice needs to be recorded by this Court as extraordinary because it includes a stay of two proceedings; and
(c)the prejudice of further delay is part of a pattern of injustice which is plainly an abuse of this Court’s processes.
With particular reference to the explanation proffered for the non-compliance with r 43(1) within the prescribed period, the respondent contended that the excuse was weak and insufficient to grant the extension sought, stating:
The Attorney-General would have this appellate court believe that, despite 5 months to put together the Case on Appeal, two lawyers leaving Crown law was unexpected, last minute and that these lawyers – who are still practicing without interruption – were unavailable to complete this rudimentary task on time. Again, this is an interlocutory appeal. Everything revolves around a timely…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General v Siemer

Details

AGLC: Attorney-General v Siemer [2022] NZCA 632
Case: [2022] NZCA 632
Decision Date: 16 December 2022 at 10.00 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by the Attorney-General and the Registrar of the Supreme Court against interlocutory orders made by the High Court in two cases involving Vincent Ross Siemer. The appeal concerns the consolidation of the cases and the ruling of several items in the Attorney-General's bundle of documents as inadmissible. The Court of Appeal granted the appellants' application for an extension of time to file a case on appeal and apply for the allocation of a hearing date. The appellants sought a two-week extension due to the departure of counsel previously assigned to the matter and the assigned counsel having other pressing commitments. The respondent opposed the application, citing significant and ongoing prejudice due to the delay in the proceedings and arguing that the extension was part of a pattern of injustice and abuse of the Court's processes.

The Court considered the principles set out in Almond v Read and Yarrow v Westpac New Zealand Ltd, which emphasize that the decision to grant an extension of time depends on the interests of justice. The Court weighed factors such as the length of the delay, the reasons for the delay, the conduct of the parties, any prejudice or hardship to the respondent, and the significance of the issues raised by the proposed appeal. The Court noted that the period of the extension sought was short, and the reason for the extension, while criticized by the respondent, was not of such little merit or worthy of reproof as to warrant a refusal of the application. The Court also considered that the Attorney-General had a strongly arguable case on appeal.

The Court of Appeal granted the application for an extension of time under r 43(2) of the Court of Appeal (Civil) Rules 2005. The appellants were granted a two-week extension to file the case on appeal and apply for the allocation of a hearing date. The Court of Appeal's decision is based on the conclusion that the interests of justice warrant the grant of the short extension sought. The final orders are not stated in the text.

Orders