Siemer v Heron
[2013] NZCA 202
•6 June 2013 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA713/2012 [2013] NZCA 202 |
| BETWEEN | VINCENT ROSS SIEMER |
| AND | MICHAEL RICHARD HERON RUSSELL McVEAGH FORCE 1 SECURITY SIONE TANAKI PIO SAMI |
| 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.
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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, the appellant's appeal must be treated as having been abandoned.
Mr Siemer subsequently sought to appeal to this Court from Wylie J’s 16 August 2010 judgment. This Court’s Registry declined to accept his notice of appeal, on the ground that this Court lacked jurisdiction because there was no longer an existing appeal in the High Court, and therefore nothing to appeal from.
I have read the letters this Court’s Registry sent to Mr Siemer on 18 and 21 September and on 2 October. There is no need to go into the detail set out in those letters: the point is this Court’s Registry declined to accept an appeal by Mr Siemer from Wylie J’s 16 August judgment, for want of jurisdiction.
On 24 October 2012 Wylie J delivered a further judgment in which he declined to recall his 16 August 2012 judgment. These are the critical paragraphs in that judgment:[2]
[10] Once the rule [in s 74(2) of the District Courts Act] comes into play, the consequence is that the underlying appeal in which the security for costs order was made, no longer exists. There is then nothing left to form the foundation for any appeal to the Court of Appeal.[3] In this regard, I note that the Registrar of the Court of Appeal, in a letter sent to Mr Siemer dated 29 September 2012, has confirmed that he is unable to accept Mr Siemer’s notice of appeal for filing, because the underlying High Court appeal had been abandoned. Similarly, there is no basis on which an aggrieved litigant can seek to recall a security for costs judgment. A judgment fixing security is inextricably linked with the underlying appeal. Once the underlying appeal has been deemed to be abandoned, there is no subsisting appeal to the High Court. There is nothing before the Court which can be amended or otherwise dealt with by way of a recall application,[4] and this Court has no power to resurrect the appeal by a retrospective extension of time, or variation or cancellation of the orders made by me on 16 August 2012.[5]
[11] While that is enough to dispose of this application, I also record that in my judgment, there are no “special circumstances” sufficient to require that my judgment be recalled. My comments in [28] of my judgment did not purport to be anything more than a preliminary observation, made by reference to the factual background which I summarised at some length in [9]–[19] of my judgment. Neither Mr Siemer nor Mr Clarke for the first and second respondents take issue with that summary. It was and remains my view, that Mr Siemer was simply trying to avoid the numerous security for costs decisions which have gone against him over the four years that the underlying matters at issue in the proceedings have been before the Courts.
[12] The recall application is dismissed.
Submissions
[2]Siemer v Heron [2012] NZHC 2802.
[3]Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309 at [35]–[39].
[4]Hermans v Hermans [1961] NZLR 390 (CA) at 393.
[5]Siemer v Heron, above n 3, at [39].
On 31 October 2012, Mr Siemer filed the present appeal, which is from Wylie J’s judgment of 24 October 2012. The ground of appeal is that the judgment is erroneous in law, in particular the reasoning in paragraph [10] which Mr Siemer asserts contains “circular legal reasoning which is unprecedented, as well as legally perilous and unsafe”.
On 7 November 2012 counsel for the first and second respondents filed a memorandum expressing the view that Mr Siemer’s notice of appeal should not have been accepted for filing. The nub of their reasoning is in these paragraphs of their memorandum:
8.The appellant did not exercise any appeal rights he might have had in relation to the Judgment before the time limited for giving security (30 August 2012). If he had, the appellant could either have applied to the High Court seeking an extension of the time for payment until the Court of Appeal had considered the appeal (HCR r 20.13(4)), or sought a stay of the Judgment pending the outcome of the appeal to the Court of Appeal.
9.As a result, there is no subsisting appeal. Any appeal right ceased to exist on 30 August 2012 by operation of s 74(2) of the District Courts Act. Once the High Court appeal is abandoned, there can be no appeal to the Court of Appeal: Siemer v Heron & Ors [2011] NZSC 133 (at [35] to [38], [59]).
Consideration and decision
In Siemer v Heron the Supreme Court overruled a series of judgments of this Court holding that s 66 of the Judicature Act 1908 did not give an appeal as of right against interlocutory decisions of the High Court. But, relevant to the present application, the Court held:[6]
[35] A right of appeal therefore did exist for Mr Siemer against Venning J’s security for costs order provided that he brought that appeal within time – that is, before s 74(2) of the District Courts Act operated to deem his underlying appeal to the High Court to be abandoned. Unfortunately for him he did not do so, with the result that, as the appeal in which the order was made no longer existed, there was nothing left about which to appeal to the Court of Appeal.
[36] Section 74 provides that an appellant not granted legal aid may be required by the High Court Rules to give the Registrar of the High Court security for costs and that, if any security required is not given within the time limited by the rules, the appeal “must be treated as having been abandoned”. Obviously once it is abandoned, there can be no appeal to the Court of Appeal.
…
[38] The Judge exercised his power to make a direction about the time for payment and on several occasions extended the time fixed. But eventually, when Mr Siemer had not paid the sum ordered by the extended time of 29 May 2009, he refused to revisit the (amended) order. The consequence was that the appeal to the High Court had, under s 74(2), to be treated as abandoned at the end of 29 May.
…
[41] Because s 74(2) had operated to deem the appeal abandoned, it is of no moment that the High Court and the Court of Appeal afterwards proceeded to consider Mr Siemer’s successive leave applications. They could never have availed him.
[6]Siemer v Heron, above n 3.
I consider that counsel for the first and second respondents are correct in submitting that this Court lacks jurisdiction to entertain an appeal from Wylie J’s 24 October 2012 judgment. If there could be no appeal from Wylie J’s 16 August 2012 judgment because there was no longer any appeal before the High Court, then I do not consider there can be a right of appeal from Wylie J’s 24 October 2012 judgment. All that Wylie J did in that judgment was refuse to recall his earlier judgment. That 24 October 2012 judgment could not, and did not, somehow resurrect an appeal to the High Court which had been deemed abandoned.
I therefore consider that this Court lacks jurisdiction to entertain this appeal, and should not have accepted Mr Siemer’s notice of appeal. That renders the Registrar’s decision declining to dispense with security for the costs of the appeal a nullity, meaning that there is nothing for me to review. On that first, somewhat fundamental, ground I dismiss this application for review.
Against the event that my view on jurisdiction – or rather lack of it – is wrong, I consider the application on its merits. In his application that security for costs be dispensed with, Mr Siemer stated that he “is deemed impecunious”. Whatever that is intended to mean, the Registrar is correct in stating in her decision that impecuniosity alone does not mean that security for costs should be dispensed with.
The Registrar expressed the view that this case was not one “where there are exceptional circumstances, or where the case is of significant public interest that would justify the dispensation of security for costs”. I agree with the Registrar on both counts. Mr Siemer’s proceeding against the respondents is private litigation. Its nature is described briefly by the Supreme Court in paragraph [4] of its decision.[7]
[7]Siemer v Heron, above n 3.
Having reviewed the Registrar’s decision I uphold it. I dismiss Mr Siemer’s application for review.
Mr Siemer is to give security in the sum fixed, $5,880, by 28 June 2013.
Solicitors:
Bell Gully, Auckland for First and Second Respondents
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