Prior to the hearing of this appeal, Mr Siemer, the appellant, applied for an interlocutory order that Blanchard and William Young JJ should not sit as members of the Court. The ground for the application was the appellant’s claim that both Judges had demonstrated apparent bias against him. The other three Judges of the Court heard the appellant orally in support of his application and, after considering his submissions, dismissed it, indicating that reasons would be given later. These are those reasons.
The substantive appeal is against a Court of Appeal judgment[1] on an application for leave to appeal against an order of the High Court[2] which fixed security for costs for an appeal from the District Court.[3] In its judgment, the Court of Appeal also addressed the merits as if the appellant were exercising a right of appeal. The Court’s judgment refused leave to appeal. This Court subsequently gave leave to appeal against the Court of Appeal’s judgment on the question of whether the applicant had a right of appeal rather than merely being entitled to bring an application for leave to appeal.
[1]Siemer v Heron [2010] NZCA 610.
[2]Siemer v Heron HC Auckland CIV-2008-404-8058, 27 March 2009 (Minute of Venning J).
[3]Siemer v Heron DC Auckland CIV-2008-004-0479, 3 December 2008.
The appellant’s application in respect of Blanchard J arose from his concern over a direction that the Judge gave the Registrar of this Court in relation to a review of the Registrar’s decision fixing security for costs to be given by the appellant in this appeal. Blanchard J directed the Registrar to provide the respondents with a document received from the appellant containing information concerning his financial position. This had been submitted to the Court in support of the appellant’s application for review by a Judge of the Registrar’s decision fixing security for costs at $1,000. The appellant sought, and on review obtained, waiver of the requirement that he give security.
The appellant, however, submitted that the provision to other parties of the information as to his means was a departure from standard practice and a breach of his privacy. He has complained to the Judicial Conduct Commissioner. Before us he contended that these circumstances demonstrated apparent bias against him on the part of Blanchard J in the present litigation so that the Judge should not sit on the…

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 [2011] NZSC 116
Case: [2011] NZSC 116
Decision Date: 29 September 2011

CaseChat Overview and Summary

The Supreme Court of New Zealand was presented with an appeal by Vincent Ross Siemer against a Court of Appeal judgment concerning an application for leave to appeal an order of the High Court, which had fixed security for costs for an appeal from the District Court. The Court of Appeal had refused leave to appeal, a decision that the Supreme Court subsequently allowed on the specific issue of whether Siemer had a right of appeal rather than merely being entitled to bring an application for leave to appeal. Prior to the hearing of the appeal, Siemer applied for an interlocutory order to recuse two Justices, Blanchard and William Young, on the ground of alleged apparent bias. The other three Justices of the Court dismissed Siemer's application, indicating that reasons would be given later.

The application raised concerns about apparent bias due to a direction given by Blanchard J in relation to a review of the Registrar’s decision fixing security for costs. Siemer argued that this direction breached his privacy. However, the Court found that Blanchard J was bound to act judicially, which required according natural justice to the respondents. The Court emphasised that even if they disagreed with what the Judge did, the mere fact that a judge makes an erroneous adverse decision would not, by itself, give rise to circumstances which a fair-minded and informed observer might consider demonstrated apparent bias. Regarding Young J, Siemer raised three grounds for alleged apparent bias. The Court found that each of these grounds did not give rise to a situation of apparent bias. The Court concluded that apparent bias arises only if a fair-minded and informed lay observer might reasonably apprehend that there is a real and not remote possibility that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. The Court found that Siemer's contention that Young J was apparently biased against him had not been objectively made out.

In light of the above, the Supreme Court dismissed Siemer's application for recusal against both Blanchard J and Young J. The substantive appeal was not heard as the issue of the right to appeal had already been addressed by the Court.

Orders