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…

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 [2010] NZCA 610
Case: [2010] NZCA 610
Decision Date: 14 December 2010

CaseChat Overview and Summary

The Court of Appeal of New Zealand presided over the case of Siemer v Heron, where Vincent Ross Siemer sought to challenge an order for security for costs imposed in the High Court. The respondents to Siemer's initial proceedings were Michael Heron, Russell McVeagh, Force 1 Security, Sione Tanaki, and Pio Sami. Siemer's primary contention was that the requirement for him to provide security for costs was unjust, given his financial situation, including his bankruptcy status. The Court was required to determine whether Siemer's application for leave to appeal the security for costs order should be granted.

The key legal issues addressed by the Court were the applicability of Section 67 of the Judicature Act 1908 to Siemer's application for leave to appeal and whether the security for costs order imposed by the High Court was justified. Venning J had previously dismissed Siemer's application for leave to appeal, noting that the dismissal of Siemer's appeal was due to his non-compliance with the security for costs order, rather than a decision on the merits of the appeal from the District Court. Furthermore, Venning J considered that the security for costs order was a procedural matter, not subject to appeal under Section 66 of the Judicature Act 1908.

The Court of Appeal upheld Venning J's decision and declined Siemer's application for leave to appeal. The Court found that, in determining the security for costs, the interests of both the plaintiff and the defendant must be balanced. The Court noted that there was no evidence of Siemer's financial circumstances beyond his bankruptcy status, and therefore no basis to conclude that the appeal could not proceed due to his financial situation. The Court also observed that the sum of $800, which was less than the amount that could be left available to a bankrupt, was not excessive.

The Court of Appeal declined the application for leave to appeal and ordered Siemer to pay costs for a standard appeal on a band A basis and usual disbursements to each set of respondents.

Orders