Siemer v District Court North Shore

[2019] NZCA 96

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA624/2018
 [2019] NZCA 96

BETWEEN	JANE DINSDALE SIEMER Appellant
AND	DISTRICT COURT NORTH SHORE First Respondent DISPUTES TRIBUNAL NORTH SHORE Second Respondent

CA14/2019
BETWEEN	JANE DINSDALE SIEMER Appellant
AND	MINISTRY OF JUSTICE First Respondent CLAYTON LUKE Second Respondent

Counsel:	Appellant self-represented M J McKillop and L Dittrich for Respondents in CA624/2018
Judgment: (On the papers)	8 April 2019 at 3 pm

JUDGMENT OF CLIFFORD J
 (Review of Registrar’s Decision)

AThe appeal in CA624/2018 may not be continued by the appellant without leave of the High Court.

BThe application for review of the Registrar’s decision declining to waive the filing fee in CA14/2019 is declined.

CThe filing fee in CA14/2019 is to be paid within 20 working days of the date of this judgment.

____________________________________________________________________

REASONS

Introduction

1. In:

   (a)CA624/2018 (the Contempt Appeal), Mrs Siemer seeks to appeal a finding of civil contempt made against her by Fitzgerald J in judicial review proceedings in the High Court at Auckland recorded in a minute of 7 August 2018,[1] and a further minute of 13 September 2018.[2]  Fitzgerald J made the challenged finding of civil contempt in judicial review proceedings brought by Mrs Siemer challenging the District Court decision rejecting her appeal against an order of the Disputes Tribunal at North Shore.  In a minute dated 31 May 2018 the Judge directed, in accordance with Mrs Siemer’s request, that a copy of the transcript of the hearing in the Disputes Tribunal be prepared and included in the record for the purpose of the judicial review hearing.  The Judge made the following further direction:[3]

   [1]That finding was initially recorded in Siemer v New Zealand District Court North Shore HC Auckland CIV-2018-404-610, 7 August 2018 (Minute of Fitzgerald J).

   [2]Siemer v New Zealand District Court North Shore HC Auckland CIV-2018-404-610, 13 September 2018 (Minute of Fitzgerald J).

   [3]Siemer v New Zealand District Court North Shore CIV-2018-404-610, 31 May 2018 (Minute of Fitzgerald J) at [10].

   I make a direction that a copy of the transcript, once filed and served, is not to be disclosed to third parties and is to be used for the sole purpose of this proceeding.

   In her subsequent minute of 7 August the Judge found that Ms Siemer had breached that order by annexing a copy of the transcript affidavits filed on her behalf into other proceedings before the High Court and disclosing it to the Law Society in connection with a complaint.  The Judge stated in her minute “[t]hose actions are in breach of my order”.[4] 

   (b)CA14/2019 (the Strike-out and Civil Restraint Appeal), Mrs Siemer seeks to appeal the decision of Hinton J, made on the application of the Attorney‑General, in the High Court at Auckland on 19 December 2018:[5] 

   (i)striking out and dismissing her judicial review application challenging the process adopted by the Ministry of Justice in dealing with complaints she and her husband made to the Ministry of Justice regarding Mr Clayton Luke, a referee in the Disputes Tribunal responsible for dismissing Mrs Siemer’s claim; and

   (ii)making a civil restraint order (the Civil Restraint Order) against her prohibiting her from:[6]

   … commencing or continuing, without leave, any proceeding in any Court or Tribunal, concerning or relating to Siemer v Hickson CIV-2017-044-495 and CIV-2017-044-562, including (without limitation) proceedings relating to the conduct of any judicial officer of the Disputes Tribunal, for three years.

   [4]Minute of 7 August 2018, above n 1, at [4].

   [5]Siemer v Attorney-General, for the Ministry of Justice [2018] NZHC 3406.

   [6]At [108].

2. Mrs Siemer now applies for a Judge of this Court to review decisions of the Registrar:

   (a)In the Contempt Appeal:

   (i)on 19 December 2018, declining her application to dispense with security for costs; and

   (ii)on 5 February 2019, declining her application to waive the scheduling fee for the appeal and the filing fee payable on her application to stay the decision of Miller J of 4 December 2018 declining to review the Registrar’s decision not to waive payment of the filing fee for Contempt Appeal.

   (b)In the Strike-out and Civil Restraint Appeal:

   (i)on 8 February 2019, declining her application to waive the filing fee for her appeal.

Contempt Appeal

1. In the Contempt Appeal, Mrs Siemer challenges Fitzgerald J’s finding of civil contempt.  That finding was, in terms of the Civil Restraint Order, a proceeding concerning or relating to Siemer v Hickson CIV-2017-044-495 and CIV-2017-044-562.[7]  Accordingly, Mrs Siemer needs leave of the High Court to continue with her Contempt Appeal.  Until such an application for leave is made and determined there would be no point in reviewing the decisions of the Registrar in the Contempt Appeal which Mrs Siemer has challenged. 

Strike-out and Civil Restraint Appeal

[7]The original cases in the Disputes Tribunal.

1. The Registrar declined Mrs Siemer’s application to waive the filing fee for the Strike-out and Civil Restraint Appeal on the basis that Mrs Siemer had not established either that she was unable to pay the fee without causing herself undue financial hardship or that that appeal constituted a matter of genuine public interest that was unlikely to be commenced unless the fee was waived.[8]

   [8]See Court of Appeal Fees Regulations 2001, reg 5(2).

2. Based on the information before me, I agree with the Registrar’s decision that Mrs Siemer has not established that to pay the fee of $1,100 would cause her undue financial hardship.

3. As the Registrar explained to Mrs Siemer:

   [Y]our stated income exceeds your stated expenditure, and the funds you say you have in your bank account are more than enough to satisfy the fee …  You also have a car.  There will be no undue financial hardship if assets are available (including by sale or by using as security for a loan), to pay a fee.

4. In her notice of application, Mrs Siemer did not challenge that factual assessment.  Rather she submitted that the Registrar’s conclusion on affordability of the $1,100 fee failed to relevantly address the fact she will be asking me for a minimum of “$17,600 in Court fees ($1,100 + $2,700 + $400 + $13,400) before I can hope to have my appeal heard”.

5. Mrs Siemer did not explain the rationale behind that assertion.  I infer it relates to the filing fee and security for cost disputes in other proceedings.  Notwithstanding that those other proceedings have not been resolved, I see no basis upon which the Registrar would require anything more than the standard filing fee of $1,100 for the commencement of this appeal.  Mrs Siemer may face further costs before her appeal is heard, but those are matters yet to be determined. 

6. The Registrar also found that Mrs Siemer’s appeal did not meet the “genuine public interest” criterion.[9]  In doing so she referred to the remarks of this Court that such cases were “likely to be comparatively rare: an acknowledged test case would be an obvious example”.[10] 

   [9]See Court of Appeal Fees Regulations 2001, reg 5(2)(b).

   [10]New Zealand Cards Ltdv Ramsay [2013] NZCA 72 at [18].

7. In reaching that conclusion, the Registrar reasoned that most of the issues raised by Mrs Siemer’s appeal would turn on the particular facts and would only affect the parties, notwithstanding that the question of whether the New Zealand Bill of Rights Act 1990 prevents the strike-out of a judicial review proceeding would be of some interest to other members of the public.

8. For my part, I recognise that the High Court’s decision to make the Civil Restraint Order with extended effect against Mrs Siemer is one of obvious importance to her.  It also raises an issue of some public significance, namely the threshold for the making of such orders under these relatively new provisions of the Senior Courts Act 2016.  Having said that, however, I do not see how Mrs Siemer can satisfy the second aspect of the genuine public interest criterion, namely that her appeal “is unlikely to be commenced or continued unless the fee is waived”.[11]  That criterion is not satisfied simply because, if the fee waiver is not granted, Mrs Siemer will choose not to pay the filing fee so that her appeal does not proceed.  An appellant who applies for a fee waiver, on the basis of impecuniosity, cannot when she is unable to establish that she is indeed impecunious, then simply choose not to pay that fee, point to possible public interest in the appeal and argue that the “genuine public interest” test has been satisfied.

   [11]Court of Appeal Fees Regulations 2001, reg 5(2)(b)(ii).

9. I therefore dismiss Mrs Siemer’s application for review of the Registrar’s decision declining to waive the filing fee for this appeal.  That filing fee should be paid within 20 working days of the date of this judgment.

Solicitors:
Crown Law Office, Wellington for Respondents in CA624/2018