Siemer v Brown - [2015] NZSC 41

IN THE SUPREME COURT OF NEW ZEALAND

SC 8/2015
[2015] NZSC 41

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:	20 April 2015

JUDGMENT OF THE COURT

The application for leave to appeal 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 applicants seek leave to appeal directly to this Court against a decision of Toogood J in the High Court in which Toogood J dismissed the applicants’ claims against the respondents relating to a search of the applicants’ home.[1] The subject of the proposed appeal is the refusal by Toogood J to recuse himself from the proceeding.
[1]Siemer v Brown [2014] NZHC 3175.
Under s 14 of the Supreme Court Act 2003, this Court must not give leave to appeal directly to it against a decision made in a proceeding in a court other than the Court of Appeal unless (in addition to being satisfied that it is necessary in the interests of justice for the Court to hear and determine the proposed appeal) it is satisfied that there are exceptional circumstances that justify taking the proposed appeal directly to the Supreme Court.
Toogood J applied the settled law relating to recusal as set out in this Court’s decision in Saxmere Company Ltd v Wool Disestablishment Company Limited.[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 and no basis for such a challenge. So the proposed appeal seeks the correction of what the applicants say was an error in the application of Saxmere to the facts of the case. No matter of general or public importance therefore arises.
[2]Saxmere Company Ltd v Wool Disestablishment Company Limited [2009] NZSC 72, [2010] 1 NZLR 35.
The applicants say leave should be given for a direct appeal to this Court because if they appeal to the Court of Appeal, they will be required to pay security for costs and this would, in practice, prevent access to that Court. They say the power to dispense with the requirement to pay security for costs will not be exercised in their favour, as it has not been exercised in any case in recent times.
The applicants have, in fact, appealed (as of right) to the Court of Appeal in the present case. They applied for dispensation from the requirement to pay security for…

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] NZSC 41
Case: [2015] NZSC 41
Decision Date: 20 April 2015

CaseChat Overview and Summary

Vincent Ross Siemer and Jane Dinsdale Siemer sought leave to appeal directly to the Supreme Court of New Zealand against a decision of Toogood J in the High Court which dismissed their claims against the respondents. The respondents were parties to the original proceedings in the High Court. The applicants argued that Toogood J should have recused himself from the proceeding. Toogood J had refused to recuse himself and the applicants sought leave to appeal directly to the Supreme Court against this decision.

The applicants argued that they could not appeal to the Court of Appeal because they would be required to pay security for costs and this would, in practice, prevent access to that Court. The Court held that the requirement to pay security for costs was not a barrier to access to the Court of Appeal. If there were a proper basis for dispensation from that requirement, applying the criteria set out in Reekie v Attorney-General, dispensation would be allowed. If not, the respondents should be protected by the security of costs regimes in the Court of Appeal and Supreme Court rules. It was not appropriate to allow a leapfrog appeal to the Supreme Court to circumvent the application of the rules applying to appeals to the Court of Appeal.

The Court dismissed the application for leave to appeal directly to the Supreme Court. The Court held that there were no exceptional circumstances that justified taking the proposed appeal directly to the Supreme Court. The exceptional circumstances test set out in s 14 of the Supreme Court Act was not met.

Orders