Siemer v Attorney-General

IN THE COURT OF APPEAL OF NEW ZEALAND

CA319/2013
[2013] NZCA 391

BETWEEN	VINCENT ROSS SIEMER Appellant
AND	ATTORNEY-GENERAL OF NEW ZEALAND Respondent

Counsel:

Appellant in person
A Powell for Respondent

Judgment:

(On the papers)

22 August 2013 at 11.00 am

JUDGMENT OF HARRISON J
(Review of Registrar’s decision refusing to dispense with security for costs)

A The application to review the Registrar’s decision is dismissed.
B The appellant is to pay security for costs by 30 August 2013.
CThe Registrar is not to accept from or for Mr Siemer any further documents relating to this appeal or enter into any correspondence or discussions with him for that purpose unless and until he gives security.

____________________________________________________________________

REASONS

On 6 May 2013 Vincent Siemer filed an appeal against a decision delivered by Toogood J in the High Court on 2 May 2013.[1] On 24 May the Registrar fixed security for costs on the appeal at $5,880. On 6 May and 21 June Mr Siemer applied for an order dispensing with security for costs under r 35(6) of the Court of Appeal (Civil) Rules 2005 (the Rules). In a decision delivered on 9 August the Registrar declined to dispense with security for costs.
[1]Siemer v Attorney-General [2013] NZHC 1111.
Mr Siemer’s application filed on 16 August 2013, in reliance on his earlier application made on 21 June, is to be treated as an application for review of the Registrar’s decision declining to dispense with security for costs on 9 August under r 7(2) of the Rules. In support he submits that security for costs should be dispensed with on the grounds, in summary, that: (a) he is deemed impecunious; (b) his appeal is brought in good faith; and (c) the interests of justice require dispensation of security because otherwise what he calls “a legally unsafe judgment” will be allowed to stand.
The legal principles are well settled.[2] The ultimate question is whether the interests of justice require dispensation or reduction of security for costs. In determining this question it is relevant to consider whether (a) an appellant’s appeal rights will be rendered nugatory if dispensation or reduction is not granted; and (b) the appellant has an arguable case on the merits, because respondents should not be required to incur the expense of defending a meritless appeal without reasonable protection as to costs. An appellant must demonstrate exceptional circumstances in order to justify dispensation.
[2]Easton v Broadcasting Commission [2009] NZCA 252, (2009) 19 PRNZ 675.
The fact that the Registrar has waived Mr Siemer’s obligation to pay filing fees on the ground of an inability to pay is not decisive. Mr Siemer’s declaration filed in support of his application for waiver provides little detail of his financial circumstances and no supporting documents. It does not satisfy me of his impecuniosity for the purpose of reviewing an application to dispense with security for costs. I am not satisfied that Mr Siemer’s rights of appeal will be rendered nugatory without dispensation from payment of security.
In any event, impecuniosity is not of itself a sufficient ground for waiving security for costs. Something more must be established. Mr Siemer submits that this important question of law arises on his appeal:
Does the fact that a Judge is the subject of multiple current misconduct complaints to a statutory oversight body meet the legal standard for that Judge’s disqualification as presiding Judge over a litigant who has made the complaints, in circumstances where both sides to the litigation accepted the legal standard, but the Judge refused the application and gave no reason?
Toogood J’s conclusion on that same submission in the High Court and the reasons for it are an absolute answer to Mr Siemer’s proposition on the merits and the interests of justice. The Judge said this:[3]
[9] In making his application for recusal, Mr Siemer is not assisted by reference to self-generated, defamatory allegations about my conduct made on a website managed by him, or by numerous complaints made by him to the Judicial Conduct Commissioner about decisions made in the exercise of my judicial duties in relation to any legal proceedings. Judges who have sworn to uphold the rule of law are not intimidated or otherwise influenced by such matters. To take them into account on a recusal application would be to place into the hands of an aggrieved litigant the power to force the disqualification of any judge, no matter how outrageous or unreasoned the allegations or complaints.
[3]Siemer v Attorney-General [2013] NZHC 1111 (footnote omitted).
I would add, as has been said before, that an appellant cannot set up an application for recusal of a judicial officer on the ground that that appellant has himself initiated complaints or made numerous allegations of misconduct against the same judicial officer.
Mr Siemer has failed to satisfy me that it is in the interests of justice to force the Attorney-General to submit to the expense and inconvenience of answering an appeal without apparent merit in circumstances where an award of costs is likely to be irrecoverable if Mr Siemer’s assertion of impecuniosity is correct and where on his own admission he owes the Solicitor-General about $39,000 in unpaid costs awarded in other proceedings.
Mr Siemer has failed to establish that the Registrar erred in declining to dispense with security for costs. His application to review the Registrar’s decision is dismissed. He is to give security for costs in accordance with the existing order by 30 August 2013. The Registrar is not to accept from or for Mr Siemer any further documents relating to this appeal or enter into any correspondence or discussions with him for that purpose unless and until he gives security.

Solicitors:
Crown Law Office, Wellington for Respondent

The Court of Appeal of New Zealand heard an appeal from Vincent Siemer against the Attorney-General. The central issue in this appeal was the refusal by the Registrar of the Court to waive the requirement for Siemer to provide security for costs. Siemer sought to challenge the High Court's decision, delivered by Justice Toogood, which had rejected his claims. The primary contention of Siemer was that the Judge handling his case should have been disqualified due to multiple misconduct complaints against him, an issue that Siemer himself had raised. Siemer argued that the refusal to dispense with the security for costs would effectively stifle his right to appeal.

The legal issues before the Court of Appeal were whether the Registrar was correct in denying Siemer's application to waive the requirement for security for costs and whether the interests of justice demanded such a waiver. The Court had to consider if Siemer's inability to pay would render his appeal rights nugatory, if his appeal had merit, and whether exceptional circumstances existed to justify the waiver. The Court also needed to assess whether Siemer's claims of impecuniosity were substantiated and whether his appeal had a reasonable chance of success.

The Court found that Siemer had not provided sufficient evidence of his financial situation to warrant a waiver of security for costs. Furthermore, the Court determined that Siemer's appeal did not appear to have merit, given the High Court's detailed and reasoned rejection of his claims. The Court concluded that Siemer had not demonstrated exceptional circumstances that would justify dispensing with the requirement for security for costs. Therefore, the application to review the Registrar’s decision was dismissed. Siemer was ordered to provide the security for costs by a specified date, and the Registrar was instructed not to accept any further documents from Siemer until he complied with this order.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established