Siemer v Auckland High Court

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA680/2020
[2021] NZCA 550

BETWEEN	VINCENT ROSS SIEMER Appellant
AND	AUCKLAND HIGH COURT First Respondent MATTHEW SIMON RUSSELL PALMER Second Respondent

Court:	French, Brown and Courtney JJ
Counsel:	Appellant in person
Judgment: (On the papers)	20 October 2021 at 9 am

JUDGMENT OF THE COURT

The application for a recall of this Court’s judgment of 24 September 2021 (Siemer v Auckland High Court [2021] NZCA 487) and correction under the slip rule is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

On 24 September 2021 we delivered a judgment[1] striking out the appellant’s appeal under r 44A(1)(c) of the Court of Appeal (Civil) Rules 2005.[2]
[1]Siemer v Auckland High Court [2021] NZCA 487.
[2]Under this rule, the Court has the power of its own initiative to strike out an appeal if the appeal is frivolous, vexatious or otherwise an abuse of the process of the Court.
In holding that the appeal was an abuse of process, we found it was an attempt to open a pathway to again challenge an observation made by Palmer J in a minute and was therefore a collateral attack on an earlier decision of this Court striking out his appeal against that minute.[3]
[3]Re Siemer [2020] NZCA 393.
Mr Siemer has now applied for a recall of the judgment and correction under the slip rule on the grounds that this appeal had nothing to do with a minute by Palmer J.
That assertion is disingenuous having regard to the proceeding in the High Court, the subject matter of the decision under appeal and the notice of appeal.
There are no grounds for recall,[4] or for correction under the slip rule,[5] and the application is accordingly declined.
[4]Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2], citing Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
[5]Court of Appeal (Civil) Rules 2005, r 8.

CaseChat Overview and Summary

Vincent Ross Siemer filed an appeal against a decision of the Auckland High Court, with Matthew Simon Russell Palmer being the second respondent. The court of appeal considered the matter and struck out the appeal under rule 44A(1)(c) of the Court of Appeal (Civil) Rules 2005, finding it to be frivolous, vexatious or otherwise an abuse of process. The appellant then applied for a recall of the judgment and correction under the slip rule, arguing that the appeal had nothing to do with a minute by Palmer J. The court found this assertion to be disingenuous, considering the proceedings in the High Court, the subject matter of the decision under appeal, and the notice of appeal. The application for recall and correction was declined, as there were no grounds for it.

The legal issues in this case revolved around whether the appeal was an abuse of process, and whether there were grounds for recall and correction under the slip rule. The court found that the appeal was an abuse of process as it was an attempt to challenge an observation made by Palmer J in a minute, and was therefore a collateral attack on an earlier decision of the court. The court also found that there were no grounds for recall or correction under the slip rule, as the application was disingenuous and not supported by the evidence.

The court of appeal declined the application for recall and correction under the slip rule, stating that there were no grounds for it. The court found that the appeal was an abuse of process as it was an attempt to challenge an observation made by Palmer J in a minute, and was therefore a collateral attack on an earlier decision of the court. The court emphasised that the application for recall and correction was disingenuous, considering the proceedings in the High Court, the subject matter of the decision under appeal, and the notice of appeal. The court did not find any merit in the arguments put forward by the appellant and declined the application accordingly.

No final orders were made in this case, as the application for recall and correction was declined. The court of appeal found that the appeal was an abuse of process and that there were no grounds for recall or correction under the slip rule. The decision of the court of appeal stands, and the appellant is not permitted to challenge the decision further. The court emphasised the importance of ensuring that appeals are not used as a means to collaterally attack earlier decisions, and that applications for recall and correction should be made in good faith and with proper grounds.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established