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: tim.clarke@bellgully.com

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…

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 Heron

Details

AGLC: Siemer v Heron [2012] NZHC 2802
Case: [2012] NZHC 2802
Decision Date: 24 October 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Justice Wylie considered an application by Vincent Ross Siemer to recall a judgment issued on 16 August 2012, which had required Siemer to pay security for costs on an appeal to the Court of Appeal. The respondents to the recall application included Michael Richard Heron, Russell McVeagh, Force 1 Security Limited, Sione Tamaki, and Pio Sami. Siemer had not paid the required security within the time frame set by the court, leading to the abandonment of his appeal under section 74(2) of the District Courts Act 1947. Siemer subsequently appealed the original judgment to the Court of Appeal and applied to recall the judgment. The central legal issue was whether Justice Wylie had the authority to recall the judgment given the abandonment of Siemer’s appeal.

Justice Wylie dismissed the recall application, stating that once an appeal is abandoned due to the non-payment of security for costs, there is no subsisting appeal for the court to recall. The court noted that Siemer had failed to take any steps to extend the time for payment of security or to appeal the judgment before the abandonment occurred. Consequently, the court had no power to resurrect the appeal or to amend the security order. Additionally, Justice Wylie found that there were no special circumstances warranting the recall of the judgment, as Siemer's comments about the merits of his appeal were preliminary observations rather than a final determination. The court also ruled that the recall application was an attempt to re-litigate matters already considered and to challenge an outcome Siemer was dissatisfied with. The respondents were awarded costs, to be lodged within a specified time frame.

Orders