Siemer v Heron

[2012] NZHC 2802

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-004128 [2012] NZHC 2802

BETWEEN  VINCENT ROSS SIEMER Appellant

ANDMICHAEL RICHARD HERON First Respondent

ANDRUSSELL MCVEAGH Second Respondent

ANDFORCE 1 SECURITY LIMITED Third Respondent

ANDSIONE TAMAKI Fourth Respondent

AND  PIO SAMI

Fifth Respondent

Hearing:         23 October 2012

Counsel:         Appellant in Person

T Clarke and P Wicks for the Respondents
No Appearance for the Third, Fourth and Fifth Respondents

Judgment:      24 October 2012

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 24 October 2012 at 4.30 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Distribution:

V R Siemer, 27 Clansman Terrace, Gulf Harbour
T Clarke: [email protected]

SIEMER V HERON & ORS HC AK CIV 2012-404-004128 [24 October 2012]

Introduction

[1]      Mr Siemer has made application seeking that I should recall a judgment I

issued on 16 August 2012.

[2]      Mr Siemer was seeking to appeal a judgment given by Judge Bouchier in the District Court.   The issue of security for costs was raised in the course of a case management conference.  I directed the parties to file the necessary documents in that regard and, by consent, I then dealt with the issue on the papers.  In my judgment,[1] I ordered Mr Siemer to pay into Court, by way of security for costs on the appeal, $995 on account of the first and second respondents and $995 on account of the third,

fourth and fifth respondents.  I directed that those amounts should be paid within 10 working days of the date of issue of my judgment, and expressly recorded that if Mr Siemer  did  not  pay  those  sums  within  that  period,  then  s  74(2)  of  the District Courts Act 1947 would come into play, and the appeal would be deemed to have been abandoned.

[1] Siemer v Heron & Ors [2012] NZHC 2073.

[3]      The 10 working-day period expired on 30 August 2012.  Mr Siemer did not pay  the  security  for  costs  ordered  by  me  into  Court  by  that  date.    Instead,  on

3 September  2012,  he  lodged  an  appeal  against  my judgment  with  the  Court  of

Appeal, and he applied to this Court seeking that I should recall my judgment.

Mr Siemer’s Submissions

[4]      Mr Siemer takes particular issue with comments made by me in [27] and [28]

of my judgment.  I there commented as follows:

[27]      The Court may be prepared to grant a waiver to an impecunious litigant if the appeal is justified on its merits and if the litigant presents an arguable case.[2]

[2] Chatha v Wanganui Gas Ltd (2004) 17 PRNZ 736 (HC).

[28]      I do not have a copy of Judge Bouchier’s decision, and it is therefore difficult to comment in any considered way on her reasoning.   From the limited background which I have gleaned and set out above, it is my preliminary observation that the prospects of the appeal succeeding must be remote.  Prima facie, it is difficult to escape the conclusion that Mr Siemer is

simply seeking to avoid the security orders made in relation to his original proceedings.

[5]      Mr Siemer submitted that it was inappropriate for me to make the comments recorded in [28] because he considered that I could not have been in a position to make a reasoned and informed conclusion as to the merits of his prospective appeal, let alone conclude that the prospects for success in the appeal were remote.   He argued that my analysis did not meet the minimum standards of a lawful decision, and that the comments were in breach of the rules of natural justice.  He referred to the New Zealand Bill of Rights Act 1990 and the International Covenant of the Civil and Political Rights, and asserted that both provide guarantees against Court orders being issued which expressly defy the accepted evidence before the Courts.  He submitted that the egregious and fundamental nature of the breach of natural justice constituted a “special reason”, requiring me to recall my judgment under the well known principles

identified in the seminal decision in this area — Horowhenua County v Nash (No 2).[3]

Respondents’ Position

[3] Horowhenua County v Nash (No 2) [1968] NZLR 632.

[6]      Mr Clarke for the first and second respondents submitted that s 74(2) of the District Courts Act 1947 provides that if any security required is not given within the timeframe required by the High Court Rules, the appellant’s appeal must be treated as having been abandoned.   He argued that Mr Siemer did not exercise such appeal rights as he may have had in relation to my judgment before the time limited for giving security expired.  He submitted that Mr Siemer should either have applied to this Court seeking an extension of the time for payment until the Court of Appeal had considered his appeal or, alternatively, sought a stay of the judgment pending the outcome of the appeal to the Court of Appeal.  He argued that as a result there is no subsisting appeal to this Court, and that I have no power to resurrect the appeal by a retrospective  extension  of  time,  or  variation  or  cancellation  of  the  judgment. Mr Clarke submitted that once the appeal was abandoned, there is no ability to either appeal or recall the judgment.  Further, and in any event, he submitted that there is no special reason to recall the judgment in terms of the decision in Horowhenua County v Nash (No 2), and argued that the recall application is simply an attempt by Mr Siemer

to re-litigate matters already considered by the Court, and to challenge an outcome which he refuses to accept.

[7]      While there was no appearance for the third, fourth and fifth respondents, a memorandum was filed on their behalf, confirming that they endorsed and adopted the submissions made by the first and second respondents.

Analysis

[8]      As I have noted above, my judgment of 16 August 2012 required Mr Siemer to pay security in the amounts ordered by 30 August 2012.  Mr Siemer did not do so. Nor did he seek an extension of time for payment.  That was an option open to him. Moreover,  a  right  of  appeal  was  available  to  Mr Siemer  against  my  judgment, provided  that  he  brought  the  appeal  within  time,  that  is,  before  s  74(2)  of  the District Courts Act  operated  to  deem  his  underlying  appeal  to  this  Court  to  be abandoned.  He did not file an appeal before 30 August 2012.  If he had done so, he could then have applied for a stay pending the outcome of the then extant appeal to the Court of Appeal.

[9]      Rather  than  take  any  of  these  steps,  Mr Siemer  simply  allowed  the  10 working-day period fixed in my judgment to elapse.  He did not take any steps until

3 September 2012.  He then purported to file an appeal and he filed the application for recall.  By 3 September 2012, s 74(2) had come into play.  That provision provides as follows:

74       Security for appeal

…

(2)       If any security required is not given within the time required by the High Court Rules, the appellant's appeal must be treated as having been abandoned.

[10]      Once the rule comes into play, the consequence is that the underlying appeal in which the security for costs order was made, no longer exists.   There is then nothing left to form the foundation for any appeal to the Court of Appeal.[4]    In this

[4] Siemer v Heron & Ors [2011] 1 NZLR 309 at [35]–[39].

regard, I note that the Registrar of the Court of Appeal, in a letter sent to Mr Siemer dated 29 September 2012, has confirmed that he is unable to accept Mr Siemer’s notice  of  appeal  for  filing,  because  the  underlying  High Court  appeal  had  been abandoned.   Similarly, there is no basis on which an aggrieved litigant can seek to recall a security for costs judgment.  A judgment fixing security is inextricably linked with the underlying appeal.   Once the underlying appeal has been deemed to be abandoned, there is no subsisting appeal to the High Court.  There is nothing before the  Court  which  can  be  amended  or  otherwise  dealt  with  by  way  of  a  recall

application, [5] and this Court has no power to resurrect the appeal by a retrospective

extension of time, or variation or cancellation of the orders made by me on 16 August

2012.[6]

[5] Hermans v Hermans [1961] NZLR 390 at 393.

[6] Siemer v Heron & Ors, above n 4 at [39].

[11]     While that is enough to dispose of this application, I also record that in my judgment, there are no “special circumstances” sufficient to require that my judgment be recalled.   My comments in [28] of my judgment did not purport to be anything more than a preliminary observation, made by reference to the factual background which I summarised at some length in [9]–[19] of my judgment.  Neither Mr Siemer nor Mr Clarke for the first and second respondents take issue with that summary.  It was and remains my view, that Mr Siemer was simply trying to avoid the numerous security for costs decisions which have gone against him over the four years that the underlying matters at issue in the proceedings have been before the Courts.

[12]     The recall application is dismissed.

[13]     The respondents are entitled to costs.   Any application for costs should be lodged  within  10  working days  of the date of  this  judgment.   Any response by Mr Siemer should be filed within a further 10 working-day period.  I will then deal

with the issue of costs on the papers, unless I require the assistance of the parties.

Wylie J