Siemer v Heron HC Auckland CIV 2010-404-6880

[2011] NZHC 249

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-6880

BETWEEN  VINCENT ROSS SIEMER Appellant

ANDMICHAEL RICHARD HERON First Respondent

ANDRUSSELL MCVEAGH Second Respondent

ANDFORCE 1 SECURITY LIMITED Third Respondent

ANDSIONE TANAKI Fourth Respondent

AND  PIO SAMI

Fifth Respondent

Counsel:         Appellant in person

T L Clarke for First & Second  Respondents
P F Wicks for Third,  Fourth & Fifth Respondents

Judgment:      24 March 2011

JUDGMENT OF KEANE J [re application for recall]

This judgment was delivered by Justice Keane on 24 March 2011 at 4pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Bell Gully, P.O. Box 4199, Auckland 1140.

Counsel:

P F Wicks, P.O. Box 1614, Shortland Street, Auckland 1140.

Copy to:

V R Siemer, 27 Clansman Terrace, Gulf Harbour, Auckland

VINCENT ROSS SIEMER V MICHAEL RICHARD HERON HC AK CIV 2010-404-6880 24 March 2011

[1]      In my decision, dated 17 March 2011, I made an order requiring Mr Siemer to pay on this appeal from the District Court $1,880 security for costs. Mr Siemer applied that day for a stay on the basis that he was appealing my decision to the Court of Appeal; and on that application I sought and have received submissions.

[2]      The  following  day  Mr  Siemer  applied  to  me  to  recall  my  judgment, contending that I had fundamentally misstated the basis on which he sought to have security for costs dispensed with in the interests of justice. I said that he had elected to rely on the fact of his bankruptcy and not to adduce evidence. Whereas, he contends, 'the file before ... (me) included the declaration for the fee waiver, which detailed the plaintiff's financial means'.

[3]      Mr Siemer's application for recall logically precedes his application for a stay. If I were to grant his application for recall one consequence could be that his application for stay became redundant. That apart, there is an immediate difficulty with his application for stay. While he contends that he has a right of appeal without leave, a proposition the respondents contest, I am told that the Court of Appeal has not received his notice of appeal. If that is correct he has no present right to apply for

a stay.[1]

[1] Court of Appeal (Civil) Rules 2005, r 12.

[4]      In this decision I will confine myself, therefore, to the issue of recall, an issue on which I find I do not need to hear from the respondents. I have, I accept, the ability to recall my judgment under HCR 11.9; the order I made in my decision, dated 17 March 2011, has not been sealed. I do not accept that this is a proper occasion for the exercise of that power.

[5]      Recall is an exceptional course reserved for three categories of case, the first two of which concern omissions to have regard to relevant law and do not apply. Mr Siemer's reason for recall must come, therefore, within the third category if it is to qualify. His reason must constitute a 'very special reason (why) justice requires that

the  judgment  be  recalled'.[2]   This  third  category,  however,  like  the  first  two,  is

'narrow'; instances where recall is justified 'are likely to be rare';[3]  and Mr Siemer's single ground for recall does not qualify.

[2] Horewhenua County v Nash (No 2) [1968] NZLR 632, 633; Saxmere Co Ltd v Wool BoardDisestablishment Co Ltd  [2010] NZLR 76 (SC).

[3] Unison Networks Ltd v Commerce Commission CA284/05, 7 March 2007.

[6]      In the submissions he filed, Mr Siemer did rely on the fact that he had obtained a fee waiver on this appeal. He went no further. He did not then draw my attention to the declaration he had made in support of his application to the Registrar for waiver. Nor would that have been consistent with the position he took at the second case conference on 9 February 2011, or with my consequent directions.

[7]      At that conference I asked Mr Siemer whether he wished to go further than to assert his status as a bankrupt and to give evidence as to his actual means. He elected not to and chose instead to advance submissions only. In the minute I issued I recorded Mr Siemer's position in this way:

Mr  Siemer  wished  the  opportunity  to  file  a  submission  amplifying  the reasons why he contends he ought to be excused having to pay security for costs under HCR 20.13(2). He did not, when I asked him, wish to support that submission with an affidavit as to his means. He wished to rely on the fact of his bankruptcy. Counsel for the respondents were not opposed to the issue being resolved in that way.

[8]      If Mr Siemer had elected to file affidavit evidence the respondents would have been equally entitled to file affidavit evidence in reply. There could even have been an issue as to cross-examination. But because Mr Siemer elected as he did these procedural possibilities did not begin to become relevant. Thus it was that I resolved the issue of security for costs, as invited, on submissions only.

[9]      Mr Siemer cannot now rely on a declaration of means that he made to the Registrar for the distinct purpose of obtaining a fee waiver; a declaration that he never invoked explicitly on this application; a declaration that the respondents have never seen and to which they have never been able to reply. I decline Mr Siemer's application for recall.

[10]     I will consider Mr Siemer's application for stay immediately I can be satisfied that he has filed a notice of appeal in the Court of Appeal; and if that has yet to

happen, it will have to happen very soon. Mr Siemer has 10 working days from the

date of my decision either to pay the sum ordered into Court or to obtain a stay. Absent the one or the other his appeal will be deemed abandoned by operation of

law. [4]

[4] District Courts Act 1947, s 74.

P.J. Keane J