Siemer v Heron - [2012] NZHC 2073

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-004128 [2012] NZHC 2073

BETWEEN VINCENT ROSS SIEMER Appellant

ANDMICHAEL RICHARD HERON First Respondent

ANDRUSSELL MCVEAGH Second Respondent

ANDFORCE 1 SECURITY LIMITED Third Respondent

ANDSIONE TANAKI Fourth Respondent

AND PIO SAMI
Fifth Respondent

Hearing: (On the papers) Counsel: Appellant in Person
S Elliott for the First and Second Respondents
No Appearance for the Third to Fifth Respondents

Judgment: 16 August 2012

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie
On 16 August 2012 at 12.00 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
P Wicks: pfwicks@xtra.co.nz

SIEMER V HERON & ORS HC AK CIV 2012-404-004128 [16 August 2012]

Introduction

[1] Mr Siemer has appealed a decision given by Judge Bouchier in the District Court. The respondents seek that security for costs should be ordered. Mr Siemer resists that suggestion.

[2] I refer to my minute of 31 July 2012. A memorandum and affidavit have now been filed by Mr Siemer. Memoranda have also been filed on behalf of the first and second respondents, and on behalf of the third, fourth and fifth respondents.

[3] All parties have agreed that I should deal with the issue of security on the papers.

Mr Siemer’s Position

[4] Mr Siemer, in his memorandum, referred to an earlier minute issued by the Supreme Court.[1] He also refers to a judgment of Keane J in this Court.[2] Mr Siemer noted that there is no standard financial form required to qualify for a dispensation from security for costs, and that the rules offer no guidance in this regard. He submitted that I have extensive evidence of his financial position, that the appeal is bona fide, and that the issue of security is simply a “blocking tactic” to insulate the
respondents from a valid claim. Mr Siemer made a number of comments about the first respondent, Mr Heron, and the position that he now holds as Solicitor-General. Those comments were manifestly inappropriate and I have ignored them.

[1] Minute of Blanchard J dated 20 June 2011, Siemer v Heron SC6/2011.

[2] Siemer v Heron HC Auckland CIV-2010-404-6880, 17 March 2011.

[5] In his affidavit, Mr Siemer asserted that he is impecunious, and noted that the Registrar has waived the filing fee in respect of his appeal. He confirmed that he has not applied for legal aid in relation to the appeal, that he is currently unemployed, but that he receives approximately $80 per week net before tax from part ownership of a rental property. He also stated that he is assisted with his living expenses by relatives as required. He referred to his bank account with KiwiBank and annexed a
copy of a recent bank statement, which showed a balance of $39.93. He asserted

that any security ordered will prevent his appeal proceeding. He also asserted that the appeal has merit, largely because Judge Bouchier struck out…

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 2073
Case: [2012] NZHC 2073
Decision Date: 16 August 2012

CaseChat Overview and Summary

In Siemer v Heron, the appellant, Vincent Ross Siemer, appealed a decision made by Judge Bouchier in the District Court. The respondents, Michael Richard Heron, Russell McVeagh, Force 1 Security Limited, Sioine Tanaki, and Pio Sami, sought an order for security for costs, which Mr. Siemer opposed. The legal issues before the court were whether special circumstances existed to justify a departure from the norm of requiring security for costs and, if not, the appropriate amount of security.

The court found that there were no special circumstances present in this case to warrant a departure from the norm of requiring security for costs. The issues Mr. Siemer sought to raise had already been the subject of proceedings, and he had refused to pay security in those proceedings, resulting in the proceedings being deemed abandoned. Additionally, Mr. Siemer's affidavit regarding his financial position was lacking in detail, and he had not paid previous costs orders made against him. The court concluded that the prospects of the appeal succeeding were remote, and that the respondents had a legitimate interest in not being exposed to the cost of responding to Mr. Siemer's appeal without the security of the payments they sought.

The court ordered that Mr. Siemer pay into Court by way of security for costs $995 on account of the first and second respondents and $995 on account of the third, fourth, and fifth respondents. If Mr. Siemer failed to pay those sums within 10 working days of the date of issue of the decision, the appeal would be deemed abandoned under s 74(2) of the District Courts Act, and the respondents would not be required to take any further steps on the appeal.

The court reserved leave to the parties to apply for a variation of the timetable order made in its minute of 31 July 2012 to accommodate the order requiring the payment of security.

Orders