Siemer v Heron HC Auckland CIV 2008-404-8058
[2010] NZHC 449
•29 March 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2008-404-008058
BETWEEN VINCENT ROSS SIEMER Applicant
ANDMICHAEL HERON First Respondent
ANDRUSSELL MCVEAGH Second Respondent
ANDFORCE 1 SECURITY Third Respondent
ANDSIONE TANAKI Fourth Respondent
AND PIO SAMI
Fifth Respondent
Hearing: 22 March 2010
Appearances: Applicant in person
T L Clarke and W Fotherby for First and Second Respondents and for
P F Wicks for Third to Fifth Respondents
Judgment: 29 March 2010 at 4.00 p.m.
JUDGMENT OF VENNING J On application for leave to appeal
This judgment was delivered by me on 29 March 2010 at 4.00 pm, pursuant to Rule 11.5 of the High
Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Bell Gully, Auckland
Swarbrick Beck, Auckland
Copy to: V Siemer, Auckland
P F Wicks, Auckland
SIEMER V HERON AND ORS HC AK CIV-2008-404-008058 29 March 2010
Introduction
[1] This is an application for leave to appeal to the Court of Appeal. The application relates to the dismissal of Mr Siemer’s appeal to this Court from an earlier decision of the District Court.
Background
[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 this Court from that decision.
[3] Although Mr Siemer was adjudicated bankrupt in November 2008, the first cause of action against the respondents was personal to him. In that cause of action he claimed aggravated damages for injury to feelings and exemplary damages for assault. That personal cause of action did not vest in the Official Assignee on adjudication. As a consequence, Mr Siemer was able to pursue that claim, notwithstanding his bankruptcy.
[4] Mr Siemer filed the appeal himself. He also appeared for himself at case management conferences in this Court. On 27 March 2009, the Court allocated the appeal a fixture for 8 July 2009. The Court also made a number of other directions relating to the appeal at that time; including an order that the appellant was to pay security for costs in the sum of $400 on behalf of the first and second respondents and $400 on behalf of the third to fifth respondents, in total $800. The direction that security was to be paid was accompanied by an unless order to give effect to s 74 of the District Courts Act 1947. 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 also reserved leave to the parties to seek further directions on 48 hours notice.
[5] At the time of the conference on 27 March 2009 Mr Siemer was not in receipt of legal aid and had not applied for legal aid.
[6] Mr Siemer then filed a memorandum to the Court dated 30 March 2009 requesting the Court to reconsider the imposition of security. He submitted that it was improper to have required him to provide security. Mr Siemer sought to raise a number of issues that were known to or before the Court on the 27th when the order was made, including the fact he was bankrupt. In a minute issued on 30 March 2009 the Court declined to reconsider the requirement for security.
[7] In a further memorandum received by the Court on 30 April, Mr Siemer sought to exercise the leave reserved. Mr Siemer advised that he had now applied for legal aid. He asked that the order for security be revoked. In the alternative he sought a 30 day extension for payment. The respondents filed a memorandum opposing any review of the order requiring security. The Court noted that the fact Mr Siemer had applied for legal aid did not affect the order made previously, but given that Mr Siemer had exercised the leave prior to the expiry of time security was required, the Court granted an extension of time for him to pay the security until 29
May. That date was fixed to ensure that the security would be paid a week before the respondents were required to file and serve their submissions in accordance with the existing timetable order. To that extent the unless order made on 27 March 2009 was varied on 8 May 2009 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] Mr Siemer then filed yet another memorandum with the Court on 29 May, again seeking to review the order of the Court requiring him to pay security. In a minute issued on 2 June 2009 the Court declined to review the order. As noted that was the third time Mr Siemer had sought to review the order directing him to pay security. The Court declined to review the order for the reasons set out in the previous minutes. The Court also noted that Mr Siemer had failed to file and serve the common bundle of documents required by 15 May 2009 and had also failed to file and serve his submissions and chronology which were due by 22 May 2009. The 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] Mr Siemer now wishes to appeal to the Court of Appeal. He filed an application for leave to appeal on 19 June 2009. I understand the application was held in abeyance by the Registry pending resolution of Mr Siemer’s application for fee waiver. Although that application was declined and the Registrar’s declinature was confirmed by Simon France J on review under s 100B Judicature Act 1908, the Registrar subsequently granted a fee waiver after Mr Siemer presented further information to support the application. Whether the Registrar had jurisdiction to grant the fee waiver after review of his earlier declinature had been confirmed by a Judge does not appear to have been considered. There are however, enough procedural issues in this case without this Court engaging on that issue, particularly without the benefit of submissions. But the fee waiver issue explains why the application for leave has only now, belatedly, been referred to this Court for consideration. Mr Siemer is responsible for that delay. If he had provided the required information earlier, the fee waiver may have been granted earlier.
Jurisdiction
[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.
Decision
[12] Section 67 applies to a decision of the High Court on appeal from the District Court. The question is what is meant by decision in this context? The directions made at a case management appeal conference may include orders, but 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]”. If the order requiring security was not a decision for the purposes of s 67, which is the view I incline to, then there is no jurisdiction for this Court to grant leave.
[13] However, as Mr Siemer advanced his submissions on the basis there was jurisdiction for the application under s 67, I propose to consider the merits of such an application.
[14] The start point is that leave will only be granted in circumstances where there is some extraordinary feature in the case to justify it: Cuff v Broadlands Finance Ltd.[1] The proposed appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of further appeal: Waller v Hider.[2] The Court of Appeal has recently confirmed that the Court of Appeal’s limited judicial resource should be focused on hearing first instance appeals: Downer Construction (NZ) Ltd v Silverfield Developments.[3]
[1] Cuff v Broadlands Finance Ltd [1987] 2 NZLR 343.
[2] Waller v Hider [1998] 1 NZLR 412.
[3] Downer Construction (NZ) Ltd v Silverfield Developments Ltd [2008] 2 NZLR 591 at [36].
[15] There was jurisdiction for the District Court Judge to make an order for security. On Mr Siemer’s own admission of his financial situation he was not in a position to meet an order for costs if his substantive claim in the District Court fails. The appeal from Judge Joyce’s decision really comes down to a question of whether, in the exercise of his discretion, the Judge was wrong to impose an order for costs at all or in the quantum he fixed. Neither of those are issues which the Court of Appeal should be troubled with. The Judge was entitled to require security. Even if this Court or the Court of Appeal might take a different view as to the quantum of
security required, that would not justify an appeal to the Court of Appeal. There is no arguable matter of principle or law that arises.
[16] Mr Siemer however submitted that there was a matter of principle at stake and that both the District Court Judge and this Court were wrong to order security where the effect of such an order was to prevent him, as a litigant, from pursuing his legitimate claim. Mr Siemer confused the concepts and did not distinguish between an order for security for costs in the substantive proceedings under the District Court Rules and the order for security made in this Court on the appeal. The requirement for security in substantive proceedings is provided for in the relevant rules. There can be no argument that there was jurisdiction for the District Court to order security under the District Court Rules, even if the order had the effect of bringing the proceedings to an end: McLachlan v MEL Network (2002); Easton v Wellington
City Council.[4] That proposed ground of appeal does not raise any new issue of
principle.
[4] McLachlan v MEL Network (2002) 16 PRNZ 747; Easton v Wellington City Council [2010] NZSC 10.
[17] Next, Mr Siemer submitted that this Court was wrong to require security for two reasons, first, that he told the Court he intended to apply for legal aid, and second, that he was a bankrupt and was unable to pay security, so that the requirement he pay security prevented him from pursuing the appeal.
[18] As to the first point, the fact Mr Siemer told the Court he intended to apply for legal aid was no bar to the order for security. Rule 20.13(6) provides that at the appeals case management conference:
The Judge must defer the fixing of security until the application for legal aid has been determined if—
(a) an appellant has applied for legal aid under the Legal Services Act
2000; and
(b)at the time of the case management conference, the application has not been determined.
[19] When the case was before the Court on 27 March at the case management conference, and the order for security was made, Mr Siemer was not in receipt of legal aid so that r 20.13(1) did not apply and, importantly, he had not, by that time, applied for legal aid. That was despite the fact he had lodged the appeal on 3
December 2008 and the appeal had been called before the Court on two occasions prior to 27 March.
[20] Mr Siemer sought to avoid the consequence of his failure to have applied for legal aid by suggesting the Official Assignee was acting for him at the conference on
27 March 2009. The record discloses that was not the case. The Official Assignee was represented but had confirmed the claim and the appeal was personal to Mr Siemer. Mr Siemer appeared on his own behalf and addressed submissions to the Court about the appeal and against the order for security. There was no jurisdictional bar to the order for security because Mr Siemer had not made an application for legal aid as at 27 March 2009.
[21] Mr Siemer may have applied for legal aid subsequently but a belated application for legal aid cannot affect an order for security made prior to such application. Further, Mr Siemer confirmed during submissions the application had been declined, although he was seeking a review.
[22] The second issue is whether the Court was right to order security for costs for the appeal given Mr Siemer’s financial situation. By the time of the call on 27
March Mr Siemer was bankrupt. The Court was aware of that fact but, nevertheless as he had not been granted legal aid, the Court was required by r 20.13(2) to fix security unless it considered that in the interests of justice, no security was required. For a half day appeal application of the rules required $800 for security for each of the respondents to the appeal. Although there are five respondents they fall into two categories. They are represented by two different firms and counsel. Two awards of security, each in the sum of $800, would have been justified in accordance with the rules. However, taking account of Mr Siemer’s financial situation, particularly his bankruptcy, the Court reduced the sum payable to the sum of $800 in total, or $400 for each of the separate interests represented by the respondents.
[23] Mr Siemer relies on the decision of the Court of Appeal in Siemer v Stiassny and Korda Mentha as authority for the proposition that security for costs on appeal cannot be required of a bankrupt.[5] But on my reading of that decision, the Court of Appeal did not go as far as saying security for costs would never be ordered against a bankrupt. Security for costs had been sought in the sum of $6,000 for the appeal. The Court declined to make an order for security. In coming to that decision the Court said:[6]
[5] Siemer v Stiassny and Korda Mentha [2009] NZCA 624
[6] At [74].
In the circumstances, we think that the realistic approach to this issue is to accept that, as a bankrupt, the appellant does not have access to funds in New Zealand. We can see no point in allowing the appeal to proceed (albeit to a very limited extent) and then setting a level of security which leads to the consequence that it cannot proceed. We therefore decline to make any order for security for costs to be paid.
(emphasis added)
[24] The circumstances of the present case are, however, different. There is a significant difference between security of $800 (to be shared by two respondents) and an order for security in the sum of $6,000 which may, in the circumstances of a bankrupt, be prohibitive. The $800 is, for instance, less than the sum provided by s 164 of the Insolvency Act 2006 which the Official Assignee can, in his discretion, leave available to a bankrupt. Further, as a bankrupt Mr Siemer is still entitled to be employed and earn an income. It is only if the income exceeds a certain level the Official Assignee may require him to contribute to his bankruptcy. Finally, although the rules contemplated security would be fixed at $1,600 ($800 for each of the two interests represented by the respondent) and be payable within 10 working days of
27 March, the quantum was reduced and the time for payment was extended to 29
May 2009, over two months after the order for security was made.
[25] Rule 20.13 requires the Court to fix security unless the Judge considers that in the interests of justice, no security is required. The interests of justice require the Court to consider not only Mr Siemer’s position but also the position of the other parties to the litigation, the respondents in this case. The cause of action Mr Siemer seeks to pursue is a personal cause of action. It is outside his estate in bankruptcy.
The allegations made in the District Court are serious. The respondents will incur legal costs on the appeal. In the circumstances the respondents were entitled to some modest security in the event the appeal was unsuccessful.
[26] While Mr Siemer’s bankruptcy and limited financial circumstances were relevant to whether, in the interests of justice, no order should be made, they were not determinative. If bankruptcy was determinative then the rules would provide for that as in the case of legal aid. Mr Siemer’s financial situation, including his bankruptcy, was just one factor to be taken into account when considering the interests of justice. The interests of the respondents are also to be considered.
[27] The fact the order of security was incorporated in an unless order does not advance Mr Siemer’s case. The unless order pursuant to which the proceedings were struck out was no more than an express application of the statutory provision under s 74(2) of the District Courts Act 1947 which provides:
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.
[28] Mr Siemer then submitted that the imposition of security for costs was anathema to natural justice and in breach of the right to justice guaranteed by s 27 of the New Zealand Bill of Rights Act 1990. He submitted the rules requiring security were “ultra vires” and were subordinate to the provisions of the New Zealand Bill of Rights Act. There are two answers to that submission. First, security on appeals is provided for by s 74(1) of the District Court Act 1947. Second, and importantly, the Supreme Court have expressly rejected that proposition. In Easton v Wellington City Council the Supreme Court expressly acknowledged that the effect of an order requiring security for cost may be to prevent a litigant from having their case heard on its merits. The Court confirmed that an absolutist submission that the setting of security for costs was contrary to the New Zealand Bill of Rights Act could not prevail against s 4 of that Act quite apart from s 5 considerations.
[29] Mr Siemer also referred to selective extracts from the “Universal Declaration of Human Rights” that “no distinction in entitlement to [a fair and public hearing] ... can be made on the ground of ... property” and “The International Covenant on Civil
and Political Rights” that “all persons are equal before the law” and “... the law shall prohibit any discrimination ... on any ground, such as ... property ... or other status.” to submit that orders requiring security for costs on appeal cannot be enforced as they are invalid. The requirement for security for costs on appeal does not infringe the principles of entitlement to a fair hearing and equal access to justice. The rules expressly require the Court to consider the interests of justice. A person in Mr Siemer’s position is entitled to have access to justice. But on the other hand, the respondents are equally entitled to have their interests considered. The Supreme Court have accepted that the Court can properly require security for costs on appeal:
Williamson v Selwyn District Council.[7]
[7] Williamson v Selwyn District Council [2010] NZSC 9.
[30] For those reasons, the points Mr Siemer seeks to raise on appeal do not raise issues capable of serious argument. The Court of Appeal should not be troubled by them. If there was jurisdiction for this Court to consider the application under s 67, I would decline leave.
[31] If there is no jurisdiction under s 67 then the only possible alternative would be s 66. Section 66 provides for an appeal to the Court of Appeal from “any judgment, decree, or order ... of the High Court.” On a literal reading the order requiring security was an order of the High Court to which s 66 would apply. But as the Court of Appeal have confirmed in Ophthalmological Society of New Zealand Inc v Commerce Commission interlocutory decisions or orders going only to the conduct or management of the trial – in this case appeal, are not appealable.[8]
[8] Ophthalmological Society of New Zealand Inc v Commerce Commission [2003] 2 NZLR 145, (2003) 16 PRNZ 569 (CA).
[32] The order for security must be in that category. It cannot be the case that an appellant could exercise a general right of appeal under s 66 from the interlocutory orders made during the course of case management conferences relating to appeals from the District Court to challenge timetable and other orders made before the hearing of the substantive appeal.
[33] I conclude there is no right of appeal under s 66.
Result
[34] For the above reasons Mr Siemer’s application for leave to appeal is dismissed.
Costs
[35] The first and second respondents are to have costs on a 2B basis (one counsel). As noted, Mr Siemer pursues a personal claim. The costs have been incurred after his bankruptcy. They are not provable debts within the bankruptcy.
Section 76 of the Insolvency Act 2006 does not apply.
Venning J
Addendum
[36] At the conclusion of the hearing and when I was in the course of retiring counsel for the first and second respondents pointed out that Mr Siemer had an audio recording device and had apparently been recording proceedings. Mr Siemer had not sought the Court’s permission to record the hearing. Mr Siemer has been before the Court often enough to know that proceedings in the Court can only be recorded with permission of the Court. I required Mr Siemer to hand the recording device to the Registrar for the Registrar to delete the unauthorised record. That was done and the device later returned to Mr Siemer.
[37] Counsel for the first and second respondents then filed a memorandum with the Court later that day to record that Mr Siemer had made comments to them which suggested to them Mr Siemer had another recording device. As officers of the Court they properly drew that concern to the Court’s attention by memorandum. Mr Siemer has filed a note in response. In that response Mr Siemer does not directly
deny having a second recording device. If Mr Siemer had a second recording of the hearing then, like the first, that was unauthorised. It is not to be used, or published
further by Mr Siemer.
Venning J
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