Siemer v Brown
[2015] NZSC 41
•20 April 2015
| IN THE SUPREME COURT OF NEW ZEALAND |
| SC 8/2015 [2015] NZSC 41 |
| BETWEEN | VINCENT ROSS SIEMER AND JANE DINSDALE SIEMER |
| AND | KEVIN STANLEY BROWN M PALMA A LOVELOCK JANE THEW REECE SIRL JULIE FOSTER JOHN MILLER Continued next page … |
| Court: | Glazebrook, Arnold and O'Regan JJ |
Counsel: | V R Siemer in person |
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
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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 costs and their application was declined by the Registrar. The Registrar’s decision was the subject of an unsuccessful review to a Judge of the Court of Appeal.[3] The review application failed because Wild J determined that the proposed appeal to the Court of Appeal was not an appeal which a solvent appellant would wish to pursue.[4] That was an application of the criteria set out in this Court’s decision in Reekie v Attorney-General. [5] The applicants have sought leave to appeal to this Court against that decision.
[3]Siemer v Brown [2015] NZCA 69 (Wild J).
[4]At [11].
[5]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.
We do not consider the requirement to pay security for costs is a barrier to access to the Court of Appeal. If there were a proper basis for dispensation from that requirement, applying the Reekie test, dispensation would be allowed. If not, there is no proper basis for subjecting the respondents to the costs of conducting an appeal in either the Court of Appeal or this Court without the protection provided to them by the security of costs regimes in the Court of Appeal (Civil) Rules 2005 and the Supreme Court Rules 2004. If dispensation was wrongly refused in the present case, that can be addressed when the applicants’ application for leave to appeal against the decision of Wild J upholding the refusal to grant dispensation comes before this Court for decision. It is not appropriate to allow a leapfrog appeal to this Court to circumvent the application of the rules applying to appeals to the Court of Appeal, in particular, the requirement to pay security for costs.[6] The exceptional circumstances test set out in s 14 of the Supreme Court Act is not met.
[6]If leave to appeal to this Court were granted, security for costs would be required in any event under either r 31 of the Supreme Court Rules 2004 or as a condition of leave under r 26(2) of those Rules.
In those circumstances the application for leave to appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondents
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