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IN THE SUPREME COURT OF NEW ZEALAND
SC 6/2011 [2011] NZSC 133
BETWEEN VINCENT ROSS SIEMER Appellant
AND MICHAEL RICHARD HERON First Respondent
AND RUSSELL MCVEAGH Second Respondent
AND FORCE 1 SECURITY Third Respondent
AND SIONE TANAKI Fourth Respondent
AND PIO SAMI Fifth Respondent
Hearing: 15 September 2011
Court: Elias CJ, Blanchard, Tipping, McGrath and William Young JJ
Counsel: Appellant in Person T L Clarke and S P H Elliott for First and Second Respondents A C Beck as Amicus Curiae
Judgment: 8 November 2011
JUDGMENT OF THE COURT
AThe appeal is dismissed.
B Costs are reserved.
REASONS
Para No
Elias CJ, Blanchard, Tipping and McGrath JJ [1] WilliamYoung J [44]
ELIAS CJ, BLANCHARD, TIPPING AND McGRATH JJ
(Given by Blanchard J)
Introduction
Sections 66 and 67 of the Judicature Act 1908 say when appeals to the Court of Appeal are available against decisions of the High Court in civil cases.[1] They are as follows:
66Court may hear appeals from judgments and orders of the High Court
The Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment, decree, or order save as hereinafter mentioned, of the High Court, subject to the provisions of this Act and to such rules and orders for regulating the terms and conditions on which such appeals shall be allowed as may be made pursuant to this Act.
67 Appeals against decisions of High Court on appeal
(1) The decision of the High Court on appeal from an inferior court is final, unless a party, on application, obtains leave to appeal against that decision—
(a)to the Court of Appeal; or
(b)directly to the Supreme Court (in exceptional circumstances as provided for in section 14 of the Supreme Court Act 2003).
(2) An application under subsection (1) for leave to appeal to the Court of Appeal must be made to the High Court or, if the High Court refuses leave, to the Court of Appeal.
(3) An application under subsection (1) for leave to appeal directly to the Supreme Court must be made to the Supreme Court.
(4) If leave to appeal referred to in subsection (1)(a) is obtained, the decision of the Court of Appeal on appeal from the High Court is final unless a party, on application, obtains leave to appeal against that decision to the Supreme Court.
(5) Subsections (1), (3), and (4) are subject to the Supreme Court Act 2003.
Section 66 is a general provision which permits appeals from the High Court to the Court of Appeal as of right, subject to other provisions of the Act and to any rules of court and Orders in Council made pursuant to the Act “regulating” the terms and conditions which are to…
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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AGLC
Siemer v Heron [2011] NZSC 133
Case
[2011] NZSC 133
Decision Date
CaseChat Overview and Summary
In Siemer v Heron, the parties involved were Siemer, the appellant, and Heron, the respondent. The dispute arose from an appeal against a decision of the High Court, and the court had to determine the appropriate legal framework for such an appeal. The central legal issue was whether an interlocutory decision made by the High Court during an appeal from an inferior court is subject to appeal under Section 66 or Section 67 of the Judicature Act 1908. Section 66 generally allows appeals from the High Court to the Court of Appeal as of right, subject to specific provisions and rules. Conversely, Section 67 governs appeals against decisions of the High Court on appeal from an inferior court, requiring leave from the High Court or the Court of Appeal if leave is refused.
The court examined the provisions of the Judicature Act 1908 and considered the nature of the interlocutory decision in question. The court determined that the appeal against the High Court’s interlocutory decision must be assessed under Section 67, as it pertains to an appeal from an inferior court. The court concluded that an appeal against an interlocutory decision made by the High Court in the course of such an appeal is not governed by Section 66, which allows for an appeal as of right. Instead, the appeal is subject to the leave requirement under Section 67, mirroring the process for appeals against substantive decisions made by the High Court in such cases. This interpretation ensures consistency in the appellate process for decisions originating from inferior courts.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Sections 66 and 67 of the Judicature Act 1908 say when appeals to the Court of Appeal are available against decisions of the High Court in civil cases.[1] They are as follows:[1]Section 66 has no application in a criminal proceeding: Mafart v Television New Zealand Ltd [2006] NZSC 33, [2006] 3 NZLR 18 at [8]–[12]. The same is so with respect to s 67.66Court may hear appeals from judgments and orders of the High CourtThe Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment, decree, or order save as hereinafter mentioned, of the High Court, subject to the provisions of this Act and to such rules and orders for regulating the terms and conditions on which such appeals shall be allowed as may be made pursuant to this Act.67 Appeals against decisions of High Court on appeal(1) The decision of the High Court on appeal from an inferior court is final, unless a party, on application, obtains leave to appeal against that decision—(a)to the Court of Appeal; or(b)directly to the Supreme Court (in exceptional circumstances as provided for in section 14 of the Supreme Court Act 2003).(2) An application under subsection (1) for leave to appeal to the Court of Appeal must be made to the High Court or, if the High Court refuses leave, to the Court of Appeal.(3) An application under subsection (1) for leave to appeal directly to the Supreme Court must be made to the Supreme Court.(4) If leave to appeal referred to in subsection (1)(a) is obtained, the decision of the Court of Appeal on appeal from the High Court is final unless a party, on application, obtains leave to appeal against that decision to the Supreme Court.(5) Subsections (1), (3), and (4) are subject to the Supreme Court Act 2003. Section 66 is a general provision which permits appeals from the High Court to the Court of Appeal as of right, subject to other provisions of the Act and to any rules of court and Orders in Council made pursuant to the Act “regulating” the terms and conditions which are to apply to the appeals. Section 66 has, however, to be read subject to the special provision in s 67 governing appeals against decisions of the High Court on appeal from an “inferior court”, which require leave from the High Court or, if it refuses, from the Court of Appeal.[2][2]If leave is sought to appeal directly to the Supreme Court, it can be granted only by the Supreme Court: s 67(3). But what is the position when the decision sought to be appealed is an interlocutory decision made by the High Court in the course of an appeal against a decision by an inferior court? In such a case, what the party aggrieved by the High Court decision is wanting to appeal against is a procedural decision which the High Court has been called upon to make before it has determined the issue to which the appeal from the inferior court relates. Is the appeal against the High Court’s interlocutory decision governed by s 66 or by s 67? Is there an appeal as of right under the former section, even though any appeal against the substantive decision which the High Court may eventually make on the appeal is itself appealable only with leave under s 67?