Siemer v Fardell - [2010] NZCA 586

IN THE COURT OF APPEAL OF NEW ZEALAND
CA450/2010
[2010] NZCA 586
BETWEENJANE CHAPMAN SIEMER

Appellant

ANDKATE FARDELL, AS EXECUTRIX OF THE ESTATE OF JOHN ROBERT FORTESQUE FARDELL

Respondent

Counsel:G J Thwaite for Appellant

M C Harris for Respondent

Judgment:3 December 2010 at 3 pm

JUDGMENT OF CHAMBERS J

AThe application for review of the Registrar’s refusal to waive the requirement to pay security for costs is declined.
B The amount of security, namely $5,560, as fixed by the Registrar, must be paid on or before 17 December 2010.

REASONS

[1]        On 19 July this year, Jane Siemer, the appellant, filed an appeal in this Court. On 12 August Mrs Siemer sought an order that security be dispensed with under r 35(6) of the Court of Appeal (Civil) Rules 2005. On 29 October, the Registrar refused to make the order sought. She said that security of $5,560 had to be paid within 20 working days.
[2]        Mrs Siemer has sought a review of the Registrar’s decision under r 7(2). In Mr Thwaite’s words, the “essence of the argument” is “that security is like to prevent the consideration of fundamental aspects of access to justice, eg by international law”. The success of that argument depends on it being established that the obligation to pay security for costs will in fact prevent Mrs Siemer from bringing the appeal. Mrs Siemer says she is indigent.
[3]        I do not accept that that has been established. The sole evidence in support of that is contained in an affidavit Mrs Siemer swore on 13 August 2010. In that, she describes herself as a businesswoman of Whangaparaoa. She deposed:
My income in the last 23 weeks in New Zealand has been $4,643. I attach as exhibit A a copy of my New Zealand tax return.

[4] The tax return annexed shows no such thing. It purports to be Mrs Siemer’s tax return for the year ended 31 March 2010. The following statement appears above Mrs Siemer’s signature:
The information in this return is true and correct and represents my assessment for the year ended 31 March 2010 as required under the Tax Administration Act 1994. It is also a correct statement of my earnings for the purposes of the Injury Prevention, Rehabilitation, and Compensation Act 2001.

[5] The tax return appears to disclose that, in the year ended 31 March 2010, Mrs Siemer received “a shareholder-employee salary” of $4,643. No other details have been provided. Nor is there any evidence as to whether the return has been filed with the Commissioner of Inland Revenue or, if it has been, whether he has accepted its accuracy.
[6] Further, the affidavit is limited to what Mrs Siemer says she has earned “in New Zealand”. She has chosen to make no reply to the letter Mr Harris, for Mrs Fardell, has put before the Court in opposition to the application to dispense with security. In that letter, Mr Harris referred to what Rodney Hansen J had recorded in the…

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.

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Details

Case: [2010] NZCA 586
Decision Date: 3 December 2010

CaseChat Overview and Summary

Jane Chapman Siemer, the appellant, appealed a decision made in the High Court of New Zealand, which was dismissed by the respondent, Kate Fardell, as executrix of the estate of John Robert Fortesque Fardell. Siemer sought to review a Registrar’s decision to refuse to waive the requirement to pay security for costs under r 35(6) of the Court of Appeal (Civil) Rules 2005. Siemer argued that the requirement to pay security would prevent her from considering fundamental aspects of access to justice. The court was required to determine whether the obligation to pay security for costs would indeed prevent Siemer from bringing the appeal.

The Court of Appeal found that Siemer had not established that the obligation to pay security for costs would prevent her from bringing the appeal. Siemer claimed to be indigent and provided an affidavit and a tax return to support her claim. However, the tax return did not support her claim of indigence, and she provided no evidence of her assets in the United States. The court found that Siemer had arranged her financial affairs to avoid exposure to claims in New Zealand and that she was not unable to meet the order for security; she had chosen not to. The court dismissed the application for review and fixed the date for payment of security as 17 December 2010.

This decision highlights the importance of providing accurate and complete evidence to support claims of indigence when seeking to waive the requirement to pay security for costs. The court found that Siemer's evidence was insufficient to establish that she was unable to pay the required security. The court's decision also emphasises the need for parties to provide evidence of all relevant assets, both in New Zealand and overseas, when making claims of indigence. The final order of the court was that Siemer must pay the required security of $5,560 by 17 December 2010.

Orders