Hearing:	20 October 2021
Court:	Gilbert, Courtney and Goddard JJ
Counsel:	Appellant in Person for CA556/2019 J M Skinner and E W Davies for Respondent in CA556/2019 A J Ellis for Appellant in CA72/2020 A M Powell and R McMenamin for Respondent in CA72/2020 Appellant in Person in CA86/2021 A M Powell and R M McMenamin for Respondent in CA86/2021
Judgment:	22 June 2022 at 11.30 am

JUDGMENT OF THE COURT

AThe appeal in CA72/2020 is allowed.
BWe order that Siemer v Auckland High Court [2019] NZHC 3393 is set aside.
CThe appellant in CA72/2020 is entitled to costs for a standard appeal on a band A basis and usual disbursements.

DThe appeal in CA86/2021 is allowed in part. The matter is remitted to the High Court for reconsideration.
EWe order that the order made in the High Court minute of 12 February 2021 is set aside.
FWe make no order as to costs in CA86/2021. However, the appellant is entitled to usual disbursements.

GThe appeal in CA556/2019 is allowed.
HThe appellant’s application to set aside the bankruptcy notice is remitted to the High Court for hearing.

The costs order in the High Court is set aside.

JWe make no order for costs in CA556/2019. However, the appellant is entitled to usual disbursements.

_____________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Table of Contents

Para No.
Introduction	[1]
The effect of the Senior Courts Act on s 88B orders
The relevant statutory provisions	[6]
Divergent views on the effect of the transitional provision	[9]
The effect of the transitional provision on a s 88B order	[19]
Siemer v Attorney-General (CA72/2020)
The High Court decision	[32]
Appeal	[37]
Siemer v Registrar of the Supreme Court (CA86/2021)
The issues	[40]
Appeal	[44]
Siemer v Complete Construction Ltd (CA556/2019)
The case in the High Court	[51]
Appeal	[57]
Results	[73]

Introduction

These three appeals raise questions about how the transitional provisions of the Senior Courts Act 2016 (SCA) affect civil restraint orders made under the (now repealed) s 88B of the Judicature Act 1908.[1]
[1]Repealed as from 1 March 2017 by Senior Courts Act 2016, s 182(2).
The SCA came into force on 1 March 2017. Sections 166–168 replaced the provisions of s 88B of the Judicature Act with a new regime for the civil restraint of vexatious litigants. Under the new regime indefinite orders can no longer be made. Orders restricting a person from commencing or continuing civil proceedings are now limited to either a period of up to three years or a period not exceeding five years if the Judge is satisfied that there are exceptional circumstances justifying the longer period.[2] The SCA contains transitional provisions for orders made under…

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 Complete Construction Ltd

Details

AGLC: Siemer v Complete Construction Limited [2022] NZCA 262
Case: [2022] NZCA 262
Decision Date: 22 June 2022

CaseChat Overview and Summary

The appellant in each appeal is Mr Vincent Siemer. He appeals against three decisions of the High Court, arguing that the orders made under the repealed s 88B of the Judicature Act 1908 should be treated as being for three years and not five years, and that the term of the order should run from the date it was made. The question of how the transitional provisions in the Senior Courts Act 2016 affect such orders is addressed in the course of the appeal. The Court of Appeal concludes that the default position under the transitional provisions is for the orders to be treated as being for three years. The Court also concludes that the time from which the order runs is the date on which it was made. The appeals are allowed in part. In Siemer v Auckland High Court (CA72/2020) the Court orders that the decision of Downs J is set aside and Mr Siemer is entitled to costs for a standard appeal on a band A basis and usual disbursements. In Siemer v Registrar of the Supreme Court (CA86/2021) the Court allows the appeal in part, sets aside the decision of Downs J and remits the matter to the High Court for reconsideration. In Siemer v Complete Construction Ltd (CA556/2019) the Court allows the appeal, sets aside the costs order in the High Court and remits the application to set aside the bankruptcy notice to the High Court for hearing.

Orders