Siemer v Heron

[2010] NZCA 610

IN THE COURT OF APPEAL OF NEW ZEALAND

CA190/2010
[2010] NZCA 610

BETWEENVINCENT ROSS SIEMER

Applicant

ANDMICHAEL HERON

First Respondent

ANDRUSSELL MCVEAGH

Second Respondent

ANDFORCE 1 SECURITY

Third Respondent

ANDSIONE TANAKI

Fourth Respondent

ANDPIO SAMI

Fifth Respondent

Hearing:30 November 2010

Court:Glazebrook, Arnold and Harrison JJ

Counsel:V R Siemer in person

T L Clarke for First and Second Respondents
B McCarthy for Third, Fourth and Fifth Respondents

Judgment:14 December 2010 at 9.30am

JUDGMENT OF THE COURT

A            The application for leave to appeal is declined.

BCosts for a standard application are awarded to each set of respondents on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Glazebrook J)

Introduction

[1]        Mr Siemer wishes to challenge an order for security for costs made in the High Court.

Procedural History

[2]        Mr Siemer issued proceedings in the District Court against the respondents.  The respondents applied for security for costs. On 11 November 2008 Judge Joyce ordered Mr Siemer to provide security for costs in the sum of $20,000. On 3 December 2008 Mr Siemer filed an appeal to the High Court from that decision.

[3]        On 27 March 2009, in a case management conference, the High Court allocated the appeal a fixture and it also made a number of other directions relating to the appeal, including an order that Mr Siemer was to pay security for costs in the total sum of $800.[1]

[1]The respondents are represented by two different firms and counsel.  Thus an order of $800 each for each set of respondents would have been allowable (ie $1600).

[4]        The direction that security was to be paid was accompanied by an order to give effect to s 74 of the District Courts Act 1947.[2]  The order provided that, unless security was paid by 1 May 2009, the appeal would be treated as abandoned and dismissed without any further call before the Court.  The Court reserved leave to the parties to seek further directions on 48 hours notice.

[2]Section 74(2) of the District Courts Act 1947 provides that, if any security required is not given within the time required, the appellant's appeal must be treated as having been abandoned.

[5]        On 30 March 2009 Mr Siemer filed a memorandum in the High Court requesting the Court to reconsider the imposition of security. In a minute issued on that same day, the Court declined to reconsider the requirement that Mr Siemer pay security for costs.

[6]        On 30 April 2009 Mr Siemer filed a memorandum stating that he sought to exercise the leave reserved to seek further direction.  In this memorandum he also advised that he had applied for legal aid and asked that the security for costs order be revoked or, in the alternative, requested a 30 day extension for payment.

[7]        On 8 May 2009 the High Court varied the order to read:

Unless the appellant pays security by [29 May 2009] the appeal will be treated as abandoned and dismissed without any further call before the Court.

[8]        On 29 May 2009 Mr Siemer filed a memorandum with the High Court once again seeking to review the security for costs order. In a Minute issued on 2 June 2009, the High Court confirmed that the unless order had taken effect on 29 May 2009 so that by operation of that order and s 74 of the District Courts Act the appeal was dismissed.

[9]        In the High Court, Mr Siemer sought leave to appeal under s 67 of the Judicature Act 1908. On 29 March 2010 Venning J dismissed this application.[3]  Mr Siemer now applies to this Court to challenge the security for costs order.

Venning J’s leave decision.

[3]      Siemer v Heron HC Auckland CIV-2008-404-8058, 29 March 2010.

[10]       Venning J said that Mr Siemer’s application for leave to appeal raised jurisdictional difficulties. He stated:

[10] Leave is required to appeal to the Court of Appeal from a decision of this Court on an appeal from the District Court: s 67 Judicature Act 1908. The requirement for leave to appeal contemplates that at the time the application is made the applicant will have had two decisions, one from the District Court and one from this Court on the merits of the matter subject to appeal. But the recitation of the above facts discloses that this Court has not delivered a decision on the merits of the appeal from the District Court. Rather, by operation of law, Mr Siemer’s appeal was dismissed because of his failure to comply with the requirement to provide security as directed by this Court.

[11] Mr Siemer’s application for leave is as much directed at his complaint about the dismissal of his appeal as it is directed at the decision of the District Court Judge. The first issue then is whether s 67 is engaged at all in this case.

[11]       Venning J then noted that s 67 applies to a decision of the High Court on appeal from the District Court and reasoned that it would be a rather strained interpretation to suggest that the decision to require security for costs in accordance with the Rules was the decision “on appeal from the [District Court].”[4]

[4] At [12].

[12]       He therefore considered that there was no jurisdiction for the High Court to grant leave under s 67. He did, however, consider the merits of the application under s 67 and determined that he would decline leave even if there was jurisdiction under s 67.[5]

[5] At [30].

[13]       In the alternative, Venning J stated that there would be no right of appeal under s 66 because, as confirmed by this Court in Ophthalmological Society of New Zealand Inc v Commerce Commission,[6] interlocutory decisions or orders going to the conduct or management of the trial are not appealable.[7]

Assessment

[6]Ophthalmological Society of New Zealand Inc v Commerce Commission [2003] 2 NZLR 145 (CA).

[7]      At [31]–[32].

[14]       We assume for the purposes of this decision that there is no automatic right of appeal against the order fixing security for costs in the High Court but that there is a right to apply for leave to appeal against that decision.[8]

[8]Attorney-General v Howard [2010] NZCA 58 at [70], [166] and [183]. See also McLachlan v Mel Network Ltd CA158/05, 28 February 2006 at [12] as to the nature of orders for security for costs.

[15]       We do not, however, consider leave should be granted in this case.  As Mr Siemer had not been granted legal aid by the time the order was made, the Court was required by r 20.13(2) of the High Court Rules to fix security, unless it considered that, in the interests of justice, no security was required.  

[16]       In determining security for costs, the interests of both the plaintiff and the defendant must be considered by the Court and an impecunious plaintiff must not be allowed to use his or her inability to pay costs as a means of putting unfair pressure upon a defendant.[9]  

[9]Bell-Booth Group Ltd v Attorney-General (1986) 1 PRNZ 457 (HC) at 461.  See also R I G v Chief Executive of the Ministry of Social Development [2010] NZCA 370 at [4], upheld by G v Chief Executive of the Ministry of Social Development [2010] NZSC 141.

[17]       As Venning J noted in his leave judgment, the fact of bankruptcy does not prevent income up to a certain level being earned.  Further the sum of $800 is less than the sum that can be left available to a bankrupt.[10]

[10]      See at [24] of Venning J’s decision.

[18]       In any event, there is no evidence before the Court as to Mr Siemer’s financial circumstances, apart from the fact of his bankruptcy.  There is therefore nothing to suggest that the appeal could not proceed because of Mr Siemer’s financial circumstances.[11]  

Result and costs

[11]We also note the comments of Chambers J in his recent judgment in Siemer v Fardell [2010] NZCA 586 at [6] – [7].

[19]       The application for leave to appeal is declined.

[20]       Mr Siemer must pay to each set of respondents[12] costs for a standard appeal on a band A basis and usual disbursements.

[12]That is to the respondents represented by Mr Clarke as well as to the respondents represented by Ms McCarthy.

Solicitors:

Bell Gully, Auckland for First and Second Respondents

Swarbrick Beck, Auckland for Third, Fourth and Fifth Respondents