Siemer v Brown - [2015] NZCA 276

IN THE COURT OF APPEAL OF NEW ZEALAND

CA31/2015
[2015] NZCA 276

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

Counsel:

Applicants in person
A M Powell for First to Fourteenth Respondents
V E Casey for Fifteenth Respondent (B J Reid)

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.

____________________________________________________________________

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,…

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 276
Case: [2015] NZCA 276
Decision Date: 26 June 2015 at 3 pm

CaseChat Overview and Summary

In the New Zealand Court of Appeal, the applicants, Vincent Ross Siemer and Jane Dinsdale Siemer, appealed against the judgment of Toogood J dismissing claims arising from a search of their family home. The respondents, Kevin Stanley Brown and others, opposed the application. The applicants sought an extension of time to file the case on appeal, recall of the Court’s judgment, and review of the Registrar’s decision to refuse to accept an application for review of the judgment. The applicants argued that the process was discriminatory and that the Registrar’s decision should have been reviewed by a Permanent Court. The respondents opposed the application on the basis that there is no right to have a review of a Registrar’s decision determined by a division of three judges.

The Court considered the grounds for the extension of time, which were consented to by all respondents. The Court held that the application was filed within the time permitted by the relevant rule, and granted the extension of time to file the case on appeal by 26 August 2015. The Court also considered the recall application and held that it did not fit any of the three categories of cases in which a judgment may be recalled. The Court further held that the applicants’ submission that they were discriminated against because of their “lack of property” was misconceived. Finally, the Court considered the application for review of the Registrar’s decision and held that the Registrar’s decision was correct and upheld it.

The Court granted an extension of time to file the case on appeal by 26 August 2015. The Court dismissed the application for the recall of the judgment upholding the Registrar’s refusal to dispense with security for costs. The Court upheld the Registrar’s decision of 18 May 2015, refusing to accept for filing an application for review of the judgment.

Orders