Siemer v Heron - [2013] NZCA 599

IN THE COURT OF APPEAL OF NEW ZEALAND

CA442/2013
[2013] NZCA 599

BETWEEN

VINCENT ROSS SIEMER
Appellant

AND

MICHAEL RICHARD HERON
First Respondent

MICHAEL STIASSNY
Second Respondent

RUSSELL MCVEAGH
Third Respondent

FORCE 1 SECURITY
Fourth Respondent

SIONE TANAKI
Fifth Respondent

PIO SAMI
Sixth Respondent

Hearing:	26 November 2013
Court:	Wild, French and Miller JJ
Counsel:	No appearance for Appellant SPH Elliott for First and Third Respondents D Nilsson for Second Respondent P F Wicks for Fourth, Fifth and Sixth Respondents
Judgment:	29 November 2013 at 3.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed for want of jurisdiction.

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REASONS OF THE COURT

(Given by Wild J)

Introduction

We need to decide whether this Court has jurisdiction to hear this appeal, which the appellant filed on 5 July, with an amended notice of appeal on 10 October.
The respondents to the appeal assert the Court lacks jurisdiction.

What happened in the High Court

On 18 April, in the High Court at Auckland, Associate Judge Sargisson heard an application by the respondents (the defendants in the High Court) to strike out the statement of claim the appellant (plaintiff in the High Court) had filed in a proceeding he brought on 5 November 2012.[1]
[1]Siemer v Heron & Ors HC Auckland CIV-2012-404-6587.
Toward the start of the judgment she gave on 28 June the Associate Judge recorded the following:
[4]       At the commencement of the hearing, Mr Siemer raised as a preliminary issue that the defendants’ strike out applications should be heard in open court and not in chambers to allow members of the public to attend should they so choose.
[5]       After discussion with Mr Siemer and counsel I directed that the hearing proceed in open court for chambers to accommodate, as far as I am able within the limits of an Associate Judge’s jurisdiction, Mr Siemer’s request that the hearing be in open court. The direction was made with the consent of all of the defendants’ counsel.
[6]       Mr Siemer has asked that I record that the above direction was made after 10 am. As I understand his concern, any members of the public who may have wished to attend the hearing would have left by the time the decision to sit in open court for chambers had been made.
[7]       It is also appropriate to record that I am exercising the court’s chambers’ jurisdiction in dealing with the present applications. The parties’ rights of review are not therefore intended to be affected.
In her judgment the Associate Judge struck out the appellant’s statement of claim “as it is an abuse of the process of the Court”.[2]
[2]Siemer v Heron & Ors [2013] NZHC 1604 at [69].
On 3 July the appellant applied under s 29P(1) of the Judicature Act 1908 for a review of the decision. Section 26P provides:
26P Review of, or appeals against, decisions of Associate Judges
(1)Any party to any proceedings who is affected by any order or decision made by an Associate…

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 [2013] NZCA 599
Case: [2013] NZCA 599
Decision Date: 29 November 2013 at 3.30 pm

CaseChat Overview and Summary

In Siemer v Heron, the appellant, Siemer, appealed against the decision of the Associate Judge who dismissed his proceedings. The appellant argued that the Associate Judge's decision was made in open court and not in chambers, giving rise to an appeal. The respondents contended that the Associate Judge was exercising the jurisdiction of a judge in chambers, and any interlocutory application must be heard in chambers unless a judge otherwise directs. The appeal hinged on whether the Associate Judge's direction for the hearing to proceed in open court constituted a direction to hear the matter outside chambers.

The court had to determine whether the Associate Judge's decision was made in chambers or in open court, and whether the appellant had a right to appeal against the decision. The court examined the provisions of the Judicature Act 1908 and the High Court Rules to determine the appropriate procedure for challenging the Associate Judge's decision. The court found that the Associate Judge was exercising the jurisdiction of a judge in chambers and that the decision was interlocutory in nature. The court held that any such application must be heard in chambers unless a judge otherwise directs, and there was no direction given by the Associate Judge to hear the matter outside chambers. The court concluded that the appellant's only recourse was to seek a review of the decision under s 26P(1) of the Judicature Act 1908.

The Court of Appeal held that it had no jurisdiction to consider the appeal as the Associate Judge was exercising the powers of a Judge sitting in Chambers under s 26J of the Judicature Act 1908. The application to strike out the proceedings was interlocutory in nature, and any such application must be heard in Chambers unless a Judge otherwise directs. The Court found that there was no suggestion that the Judge directed this matter be heard other than in Chambers. By virtue of s 26P(2) of the Judicature Act 1908, there is no right of appeal from a decision made in Chambers. The appellant's only recourse was to seek a review of the decision under s 26P(1). The appeal was dismissed.

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

On 3 July the appellant applied under s 29P(1) of the Judicature Act 1908 for a review of the decision. Section 26P provides:26P Review of, or appeals against, decisions of Associate Judges(1)Any party to any proceedings who is affected by any order or decision made by an Associate Judge in chambers may apply to the court to review that order or decision and, where a party so applies in accordance with the High Court Rules, the court—(a)must review the order or decision in accordance with the High Court Rules; and(b)may make such order as may be just.…(2)Any party to any proceedings may appeal to the Court of Appeal against any order or decision of an Associate Judge in those proceedings (other than an order or decision made in chambers). As we have mentioned the appellant then, on 5 July, filed this appeal. The respondents’ argument is this:(a)The Associate Judge was exercising the jurisdiction of a judge in chambers, provided for in s 26J of the Judicature Act.(b)The respondents’ application to strike out the appellant’s statement of claim was interlocutory in nature.(c)Any such application must be heard in chambers unless a judge otherwise directs: r 7.34 of the High Court Rules.(d)The Associate Judge could not, and did not, direct that the application be heard other than in chambers. The direction she recorded in [5] of her judgment is not such a direction. It is a direction that the hearing proceed “in open court for chambers”, so that members of the public could attend the hearing if they wished.(e)Accordingly, the appellant’s only avenue of challenge to the judgment is by way of an application for review under s 29P(1) – the very application he in fact filed on 3 July.[3] The appellant takes two points:(a)The Associate Judge did, as she records in [5] of her judgment, direct that the hearing proceed in open court. Section 26IA of the Judicature Act gave her the power to give that direction. That section provides:26IA Ancillary powers of Associate Judge(1)Subject to subsection (2) of this section, an Associate Judge shall have, in all proceedings (including proceedings on an interlocutory application) properly before the Associate Judge, jurisdiction to make any order or to exercise any authority or jurisdiction that might be made or exercised by a Judge of the High Court.(b)As the Associate Judge’s decision was one made in open court and not in chambers, s 26P(2) gave the appellant a right to appeal to this Court against that decision. The position contended for by the respondents is correct, and the points advanced by the appellant incorrect. That is succinctly demonstrated by the following passage from this Court’s judgment in Rewi v Attorney-General:[4][5] We are satisfied this Court has no jurisdiction to consider this appeal. In striking out the proceedings, the Associate Judge was exercising the powers of a Judge sitting in Chambers under s 26J of the Judicature Act 1908. The application to strike out the proceedings was interlocutory in nature. Any such application must be heard in Chambers unless a Judge otherwise directs. There is no suggestion that the Judge directed this matter be heard other than in Chambers. …[6] By virtue of s 26P(2) of the Judicature Act 1908 there is no right of appeal from a decision made in Chambers. If the applicant wished to challenge the decision of the Associate Judge her only recourse was to seek a review of the decision under s 26P(1). …(Footnotes omitted.)[4]Rewi v Attorney-General [2010] NZCA 328.

Ratio Decidendi

Legal Principle Established

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