Siemer v Brown
[2015] NZCA 276
•26 June 2015 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA31/2015 [2015] NZCA 276 |
| BETWEEN | VINCENT ROSS SIEMER AND JANE DINSDALE SIEMER |
| AND | KEVIN STANLEY BROWN & ORS |
| Counsel: | Applicants in person |
Judgment: (On the papers) | 26 June 2015 at 3 pm |
JUDGMENT OF WILD J
AThe application for an extension of time to file the case on appeal is granted. Time to comply with r 43(1) of the Court of Appeal (Civil) Rules 2005 is extended to 26 August 2015.
BThe application for the recall of the judgment in Siemer v Brown & Ors [2015] NZCA 69 is dismissed.
CThe Registrar’s decision of 18 May 2015 refusing to accept for filing an application for review of the judgment in Siemer v Brown & Ors [2015] NZCA 161 is upheld.
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REASONS
The applicants filed on 26 January 2015 a notice of appeal against a judgment of Toogood J dismissing several claims arising from a search of the Siemers’ family home.[1] A number of procedural applications have followed. Three remain to be determined in the present judgment:
(a)An application for an extension of time to file the case on appeal (filed 20 April 2015);
(b)An application for recall of this Court’s judgment of 16 March 2015 (filed 12 May 2015);[2]
(c)An application for review of Registrar’s decision to refuse to accept for filing an application for review of this Court’s judgment of 12 May 2015 (filed 25 May 2015).[3]
Extension of time
[1]Siemer v Brown [2014] NZHC 3175.
[2]Siemer v Brown [2015] NZCA 69 [Review of Registrar’s decision as to security for costs].
[3]Siemer v Brown [2015] NZCA 161 [Review of Registrar’s decision to refuse to accept for filing an application for review].
The applicants seek an extension of time of four months to file the case on appeal under r 43(2)(a) of the Court of Appeal (Civil) Rules 2005. By memoranda filed on 8 June 2015 all respondents consented to the extension sought. As the application was filed within the time permitted by r 43(3), an extension of time is granted. The applicants are to apply for a hearing date and file the case on appeal by 26 August 2015.
Recall application
On 3 March 2015 the Registrar of this Court refused the applicants’ application to dispense with security for the costs of the substantive appeal. On review, I upheld the Registrar’s decision.[4] The Supreme Court denied leave to appeal that decision.[5] A recall application in respect of the leave decision was subsequently dismissed.[6]
[4]Review of Registrar’s decision as to security for costs, above n 2.
[5]Siemer & Siemer v Brown & Ors [2015] NZSC 62.
[6]Siemer v Brown [2015] NZSC 86.
The applicants apply for recall of my 16 March 2015 decision.[7] The applicants submit the process was discriminatory and that the Registrar’s decision should have been reviewed by a Permanent Court, as in Houghton v Saunders.[8] The application is opposed on the basis there is no right to have a review of a Registrar’s decision determined by a division of three judges: s 61A of the Judicature Act 1908 provides a decision of the Registrar may be reviewed by a single judge of this Court.
[7]Review of Registrar’s decision as to security for costs, above n 2.
[8]Houghton v Saunders [2015] NZCA 141.
There are three classes of cases in which a judgment may be recalled:[9]
[F]irst, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.
[9]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633, approved in Siemer v Registrar of the Supreme Court [2014] NZSC 179.
This Court’s decision in Houghton v Saunders dealt with the somewhat novel situation of an application for increased security for costs where the applicant relies on a litigation funder.[10] It does not stand for the general proposition that a review of a Registrar’s decision as to security for costs is to be determined by a panel of three judges of this Court. Section 61A of the Judicature Act plainly provides otherwise. Accordingly, this case fits neither of the first two categories at [5] above.
[10]Houghton v Saunders, above n 8.
It likewise does not meet the high threshold of the third category. The applicants’ submission that they were discriminated against because of their “lack of property” is misconceived. In my decision of 16 March I held this was not “an appeal which a solvent appellant would reasonably wish to pursue”.[11] This applied the test set out in Reekie v Attorney-General.[12] In that case the Supreme Court held this Court’s discretion to dispense with security for costs should be exercised so as to preserve access to the courts where the proposed appeal is one a reasonable and solvent appellant would pursue.[13]
[11]Review of Registrar’s decision as to security for costs, above n 2, at [11].
[12]Reekie v Attorney-General [2014] NZSC 63.
[13]At [35].
The grounds advanced do not warrant a recall of the 16 March judgment.
Review of Registrar’s decision
The applicants applied on 15 May 2015 for review under s 61A(2) of the Judicature Act of my decision of 12 May.[14] The Registrar refused to accept that application for filing. There is now an application under r 7(2) of the Court of Appeal (Civil) Rules to review the Registrar’s decision, filed on 25 May.[15] The applicants submit the Registrar’s decision was discriminatory and denies them access to this Court, and point out that the Registrar accepted for filing applications in “identical circumstances” in Houghton v Saunders.[16] As I have explained at [6] above, that case was not identical.
[14]Review of Registrar’s decision to refuse to accept for filing an application for review, above n 3.
[15]The applicants also sought to file a “(Presumptive) Application for s 7(2) review” of the Registrar’s decision, which was rightly rejected on the basis there is no right to review a decision of the Registrar before that decision has been made: Rafiq v Secretary for the Department of Internal Affairs of New Zealand [2014] NZCA 518.
[16]Houghton v Saunders, above n 8.
Further, as the applicants well know, review is only available of a decision made under s 61A(1) of the Judicature Act.[17] My decision of 12 May 2015 was made under s 61A(3), which provides for review of a decision of the Registrar. The Registrar’s decision was correct.
[17]Review of Registrar’s decision to refuse to accept for filing an application for review, above n 3, at [4].
Accordingly, having reviewed the Registrar’s decision, I uphold it.
Result
The time to comply with r 43(1) is extended to 26 August 2015.
The application for the recall of the judgment in Siemer v Brown & Ors [2015] NZCA 69, upholding the Registrar’s refusal to dispense with security for costs, is dismissed.
The Registrar’s decision of 18 May 2015, refusing to accept for filing an application for review of the judgment in Siemer v Brown & Ors [2015] NZCA 161, is upheld.
Solicitors:
Crown Law Office, Wellington for First to Fourteenth Respondents
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