Siemer v Brown

IN THE SUPREME COURT OF NEW ZEALAND

SC 8/2015
[2015] NZSC 50

BETWEEN

VINCENT ROSS SIEMER AND JANE DINSDALE SIEMER
Applicants

AND

KEVIN STANLEY BROWN
First Respondent

M PALMA
Second Respondent

A LOVELOCK
Third Respondent

JANE THEW
Fourth Respondent

REECE SIRL
Fifth Respondent

JULIE FOSTER
Sixth Respondent

JOHN MILLER
Seventh Respondent

Continued next page …

Court:	Glazebrook, Arnold and O'Regan JJ
Counsel:	V R Siemer in person A M Powell and E J Devine for First to Fourteenth Respondents V E Casey for Fifteenth Respondent
Judgment:	5 May 2015

JUDGMENT OF THE COURT

The application for recall is dismissed.

DAVID THOMAS
Eighth Respondent

BRETT OTTO
Ninth Respondent

TREVOR FRANKLIN
Tenth Respondent

JOHN TAYLOR
Eleventh Respondent

JUERGEN ARNDT
Twelfth Respondent

KERWIN STEWART
Thirteenth Respondent

THE ATTORNEY-GENERAL OF NEW ZEALAND
Fourteenth Respondent

B J REID
Fifteenth Respondent

___________________________________________________________________

REASONS

The first named applicant seeks recall of our judgment in relation to his application for leave to appeal.[1]
[1]Vincent Ross Siemer and Jane Dinsdale Siemer v Kevin Stanley Brown & Ors [2015] NZSC 41 [20 April 2015].
The application for recall is based on what the applicant says was a misstatement of the appeal grounds.
The judgment says:[2]
The proposed appeal relates to the way the Judge applied the Saxmere test to the facts of the case. There is no challenge to Saxmere itself …
[2]At [3].
The first named applicant says the proposed appeal was a challenge to the Judge’s approach in applying the Saxmere[3] test to his own conduct – a legal requirement of Saxmere.
[3]Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35.
We have reviewed the application for leave. The judgment correctly records that the applicants did not suggest the test in Saxmere was wrong or required reconsideration. They sought to challenge the way it had been applied by the Judge.
There was no error in the judgment requiring correction.
The application for recall is therefore dismissed.

Solicitors:
Crown Law Office, Wellington for Respondents

CaseChat Overview and Summary

The Supreme Court of New Zealand heard an application for recall from Vincent Ross Siemer and Jane Dinsdale Siemer against Kevin Stanley Brown and others. Siemer sought recall of the court's judgment relating to his application for leave to appeal, claiming that the court misstated the grounds of his appeal. The original judgment noted that the proposed appeal was about the way the Judge applied the Saxmere test to the facts of the case, without challenging Saxmere itself. Siemer argued that his appeal was about the Judge's approach in applying the Saxmere test to his conduct, which is a legal requirement of Saxmere. The court reviewed the application for leave and concluded that the judgment correctly recorded that the applicants did not challenge the test in Saxmere but sought to challenge its application by the Judge.

The legal issues before the court were whether the judgment correctly recorded the grounds of the appeal and if there was an error in the judgment that required correction. The court examined the application for leave and the grounds of appeal as set out by Siemer. It found that the judgment accurately reflected that the applicants did not challenge the Saxmere test itself but rather its application by the Judge. Therefore, there was no error in the judgment that needed correction. The court dismissed the application for recall, affirming that the judgment correctly represented the grounds of the appeal.

The reasoning of the court was based on a thorough review of the application for leave and the grounds of appeal. The court found no basis for the claim that the judgment misstated the grounds of the appeal. It confirmed that the applicants were challenging the application of the Saxmere test by the Judge, not the test itself. The court concluded that since the judgment correctly identified this aspect, there was no need for recall or correction. The application was dismissed as the court found no error in the original judgment.

No further orders were made by the court beyond dismissing the application for recall. The court's decision stands, and the applicants are not entitled to recall the judgment. The judgment in relation to the application for leave to appeal remains unchanged, and the applicants' appeal will proceed based on the grounds as correctly identified by the court.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established