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 judgment under appeal:[1]

[23]       In an affidavit sworn in support of the application to review Abbott AJ’s decision, Mrs Siemer deposed that she and her husband had “significant assets” in the United States but they “are almost entirely tied up in property and long-term securities”.  In his judgment dismissing the application to review, John Hansen J noted at [7] that in written submissions to the Supreme Court Mr Siemer had stated that he had moved assets with a view to re-establishing himself in the United States.

[24]       Mr and Mrs Siemer appear to have arranged their financial affairs so as to avoid exposure to claims in New Zealand.  They are not unable to meet the order for security; they have chosen not to.

[1]     Siemer v Fardell HC Auckland CIV2003-404-5782, 21 June 2010.

[7]        Presumably the “significant assets” in the United States provide income.  In addition, Mrs Siemer has chosen to give no evidence of the assets she owns, whether in New Zealand or overseas. 

[8]        The Registrar’s decision was in accordance with well-established authority under r 35(6).[2]  I dismiss the application for review. 

[2]     McGechan on Procedure (looseleaf ed, Brookers) at [CR35.03]. 

[9]        I fix the date by which security must be paid as 17 December 2010. 

Solicitors:

Gregory J Thwaite, Auckland, for Appellant

Gilbert Walker, Auckland, for Respondent