Siemer v Heron

IN THE COURT OF APPEAL OF NEW ZEALAND

CA190/2010
[2011] NZCA 18

BETWEEN VINCENT ROSS SIEMER
Appellant

AND MICHAEL RICHARD HERON
First Respondent

AND RUSSELL MCVEAGH
Second Respondent

AND FORCE 1 SECURITY LIMITED
Third Respondent

AND SIONE TANAKI
Fourth Respondent

AND PIO SAMI
Fifth Respondent

Court: Glazebrook, Arnold and Harrison JJ

Counsel: Mr Siemer in person
R G Simpson for First and Second Respondents

Judgment: 17 February 2011 at 4:30 pm
(On the papers)

JUDGMENT OF THE COURT

A The application for recall is declined.

B The appellant must pay the respondents’ costs for a standard application on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Glazebrook J)

On 14 December 2010 the Court declined Mr Siemer’s application for leave to appeal against a decision of the High Court setting security for costs.[1]
[1] Siemer v Heron et al [2010] NZCA 610; CA190/2010, 14 December 2010.
On 20 December 2010 Mr Siemer filed an application for recall of the judgment on the basis that it was “legally and factually unsafe”.[2]
[2]This application can be dealt with on the papers in accordance with r 51 of the Court of Appeal (Civil) Rules 2005.
The application is opposed by the respondents on the basis that the application does not fall within the established criteria for the recall of judgments.[3]
[3]Horowhenua County v Nash (No 2) [1968] NZLR 632 at 633 (SC); Unison Networks Ltd v Commerce Commission [2007] NZCA 49 at [10]; Erwood v Maxted [2010] NZCA 93 at [23].
The respondents submit that the recall application is an attempt to relitigate the matters already considered by the Court and to challenge an outcome which the appellant refuses to accept.
We accept the respondents’ submissions.

Result

The application for recall is declined.
The appellant must pay the respondents’ costs for a standard application on a band A basis and usual disbursements.

Solicitors:
Bell Gully, Auckland for Respondents

CaseChat Overview and Summary

Vincent Ross Siemer appealed against a decision of the High Court which set security for costs. The respondents were Michael Richard Heron, Russell McVeagh, Force 1 Security Limited, Sione Tanaki, and Pio Sami. Siemer sought recall of the Court of Appeal's decision that dismissed his application for leave to appeal, claiming it was "legally and factually unsafe". The Court of Appeal considered the application on the papers, as per r 51 of the Court of Appeal (Civil) Rules 2005.

The primary legal issue was whether Siemer's application for recall met the criteria for recalling judgments. The respondents argued that the application did not meet the established criteria, which includes situations where there has been a manifest injustice or where the judgment was obtained by fraud. The respondents further argued that the application was an attempt to relitigate the matters already considered by the Court and to challenge an outcome which the appellant refused to accept.

The Court of Appeal found that the respondents' submissions were correct and dismissed the application for recall. The Court held that Siemer's application did not meet the criteria for recalling judgments. The Court further held that the application was an attempt to relitigate the matters already considered by the Court and to challenge an outcome which the appellant refused to accept. The Court ordered Siemer to pay the respondents' costs for a standard application on a band A basis and usual disbursements.

The Court declined the application for recall and ordered Siemer to pay the respondents' costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established