Siemer v Brown - [2015] NZCA 69

IN THE COURT OF APPEAL OF NEW ZEALAND

CA31/2015
[2015] NZCA 69

BETWEEN	VINCENT ROSS SIEMER AND JANE DINSDALE SIEMER Appellants
AND	KEVIN STANLEY BROWN & ORS Respondents

Counsel:

Appellant in Person
A M Powell for Respondents

Judgment:

(On the papers)

16 March 2015 at 11.30 am

JUDGMENT OF WILD J
[Review of Registrar’s decision]

The Registrar’s decision is upheld. Security for costs of $11,760 is to be paid by Friday 17 April 2015.

____________________________________________________________________

REASONS

Mr Siemer applies for a review of the Registrar’s decision of 3 March 2015 refusing his application to dispense with security for the costs of this appeal. As there are 15 respondents to the appeal, security was set at $11,760.
In the appeal, filed on 22 January, Mr Siemer challenges the decision of Toogood J declining to recuse himself from hearing and deciding a proceeding Mr Siemer had brought against the 15 defendants. The proceeding claimed damages or compensation, including aggravated and punitive damages, against the police officers involved in a search of Mr Siemer’s home on 21 February 2008, the Court Registrar who issued the search warrant and the Attorney-General.
Toogood J tried the case over a number of days in October and November 2013 and March 2014, and delivered his judgment on 11 December 2014.[1] The judgment is lengthy, reflecting the need for the Judge to work through eight different causes of action against the various defendants. After summarising his findings in [183] of the judgment, Toogood J states:
[184] The result is that I have dismissed all of the plaintiffs’ claims against all of the defendants; the plaintiffs are not entitled to remedies.
[1]Siemer v Brown [2014] NZHC 3175.
Toogood J deals with Mr Siemer’s recusal application toward the start of the judgment, in [10]–[15]. He records Mr Siemer’s counsel, Mr C S Henry, had made a recusal application upon hearing the case was assigned to Toogood J, and renewed it at the start of the hearing. The Judge sets out the grounds for the recusal application. Essentially, Mr Siemer submitted the manner in which Toogood J had dealt with past cases and matters involving Mr Siemer disqualified him from trying the present case. The Judge went in some detail into those previous matters. I need not. The Judge explained why he had declined to stand aside in this way:
[15] I concluded in this case that those considerations continued to apply and that a principled approach to the issue in terms of the Supreme Court’s judgment in Saxmere did not make it appropriate that I should recuse myself. I declined to do so.
In applying to the Registrar under r 35(6) for an order dispensing with security, Mr Siemer contended his appeal raised “exceptional circumstances … of genuine public interest on the elementary right to an impartial judge”.
His application states:
5.An informed decision requires the Registrar consider the substantive judgment which confirms the required legal test was not applied to the trial judge’s conflict and bias, as…

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 Siemer v Brown

Details

AGLC: Siemer v Brown [2015] NZCA 69
Case: [2015] NZCA 69
Decision Date: 16 March 2015 at 11.30 am

CaseChat Overview and Summary

In the New Zealand Court of Appeal, Vincent Ross Siemer and Jane Dinsdale Siemer, the appellants, sought a review of the Registrar's decision that refused their application to dispense with security for costs for their appeal against Kevin Stanley Brown and others. The appeal itself contested the decision of Toogood J declining to recuse himself from a proceeding brought by the Siemers against 15 respondents, including police officers, the Court Registrar, and the Attorney-General. The proceeding sought damages or compensation, including aggravated and punitive damages, related to a search of the Siemers' home in 2008. Toogood J dismissed all claims, and the Siemers argued that the judge should have recused himself due to past dealings with Mr Siemer. The Registrar rejected the Siemers' application to dispense with security for costs, finding the appeal did not involve a genuine public interest.

The court had to determine whether the appeal raised exceptional circumstances warranting the respondents being exempt from providing security for costs. The Siemers argued that the appeal involved the right to an impartial judge, a matter of genuine public interest. The respondents maintained that the appeal was specific to the Siemers' perceived bias of the judge and did not involve a broader public concern. The court examined the nature of the claims, the background of the case, and the grounds for the recusal application to decide whether the appeal was of genuine public interest.

The Court of Appeal upheld the Registrar's decision, affirming that the appeal did not involve a genuine public interest. Wild J noted that appeals of genuine public interest often involve the Crown, and in this case, the Siemers had brought a private claim for damages. The court applied the principles from Saxmere Company Ltd v Wool Board Disestablishment Company Ltd and Reekie v Attorney-General to determine that the appeal was not one a solvent appellant would reasonably wish to pursue. Consequently, the respondents were required to pay the security for costs.

The final orders confirmed the upholding of the Registrar's decision. The security for costs of $11,760 was to be paid by Friday, 17 April 2015. The appellants' application for a review of the Registrar's decision was dismissed.

Orders