Siemer v Heron - [2013] NZCA 202

IN THE COURT OF APPEAL OF NEW ZEALAND

CA713/2012
[2013] NZCA 202

BETWEEN

VINCENT ROSS SIEMER
Appellant

AND

MICHAEL RICHARD HERON
First Respondent

RUSSELL McVEAGH
Second Respondent

FORCE 1 SECURITY
Third Respondent

SIONE TANAKI
Fourth Respondent

PIO SAMI
Fifth Respondent

Court:

Wild J

Counsel:

T L Clarke and S P H Elliott for First and Second Respondents

Judgment

(On the papers):

6 June 2013 at 11.30 am

JUDGMENT OF WILD J

The application to review the Registrar’s decision declining to dispense with security for costs is dismissed.

____________________________________________________________________

Introduction

By application filed on 20 February the appellant, Mr Siemer, applies for a review of the decision of this Court’s Registrar on 13 February 2013 declining to dispense with security for the costs of this appeal.
In his application Mr Siemer states his grounds for review as follows (and I summarise):
(a)The reasons given by the Registrar are “generic and vague, with no reference to the particulars of the appeal”.
(b)The Registrar was and is not capable of evaluating the merits of the appeal.
(c)“The merits are irrefutable, as the appeal challenge is against a judgment which effectively claims a judgment can contain orders which prevent its own recall and dismissed recall expressly on this basis. This is patently contrary to the law and cannot be the law.”
(d)The security fixed of $5,880 will prevent the appeal proceeding, as Mr Siemer is unable to give that security.
(e)The Registrar failed to address “the New Zealand’s international legal commitments concerning discretionary bars to Court access”.

Background

In a judgment delivered on 16 August 2012 Wylie J fixed, at a total of $1,190, security for the costs of an appeal Mr Siemer had brought from a decision of the District Court.[1]
[1]Siemer v Heron [2012] NZHC 2073.
For present purposes, these are the relevant parts of that judgment:
[32] I order 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.
[33] If Mr Siemer does not pay those sums into Court within 10 working days of the date of issue of this decision, s 74(2) of the District Courts Act will come into play, and the appeal will be deemed to be abandoned. The respondents will not then be called upon to take any further step on this appeal.
The 10 working days allowed by Wylie J expired on 30 August 2012. By that date Mr Siemer had not given the security ordered, and nor had he sought an extension of time to give the security, or appealed or sought a stay of the judgment pending appeal.
The result, as Wylie J had pointed out in [33] of his judgment, was that s 74(2) of the District Courts Act 1947 deemed Mr Siemer’s appeal to the High Court abandoned. Section 74(2) provides:
(2)If any security required is not given within the time required by the High Court Rules,…

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 202
Case: [2013] NZCA 202
Decision Date: 6 June 2013 at 11.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Vincent Ross Siemer sought a review of the Registrar's decision to decline his request to dispense with security for costs for his appeal. The respondents in the case were Michael Richard Heron, Russell McVeigh, Force 1 Security, Sione Tanaki, and Pio Sami. The appeal was brought from a decision of the District Court. The primary legal issue was whether the Court of Appeal had jurisdiction to hear the appeal since the initial appeal had been deemed abandoned due to Mr Siemer's failure to provide the required security for costs within the specified time.

The Court of Appeal found that it did not have jurisdiction to hear the appeal. It reasoned that once the original appeal was deemed abandoned due to the non-payment of security for costs, there was no existing appeal for the Court of Appeal to review. The Court further found that the appeal against the refusal to recall the initial judgment also lacked merit since there was no subsisting appeal to the High Court. The Court concluded that the Registrar's decision declining to dispense with security for costs was correct as it found no exceptional circumstances or significant public interest that would warrant such a dispensation. Mr Siemer was required to provide the security in the sum of $5,880 by 28 June 2013.

Orders