Siemer v Judicial Conduct Commissioner - [2013] NZCA 334

IN THE COURT OF APPEAL OF NEW ZEALAND

CA712/2012
[2013] NZCA 334

BETWEEN	VINCENT ROSS SIEMER Applicant
AND	JUDICIAL CONDUCT COMMISSIONER First Respondent
AND	HELEN DIANA WINKELMANN Second Respondent

Counsel:

Applicant in person
P J Gunn for First and Second Respondents

Judgment:

(On the papers)

30 July 2013 at 2.30 pm

JUDGMENT OF FRENCH J
(Review of Registrar’s Decision
Re Dispensing with Payment of Security for Costs)

A.The application for review of the Registrar’s decision refusing to dispense with the payment of security for costs is dismissed.
B.The applicant must pay security for costs in the sum of $5,880.00 in relation to the appeal within 20 working days of the date of this judgment

____________________________________________________________________

REASONS

Introduction

Mr Siemer has filed an appeal against a decision of the High Court. The decision which he seeks to impugn is a decision by Peters J ordering that judicial review proceedings which Mr Siemer had brought against the Judicial Complaints Commissioner be struck out as disclosing no reasonable cause of action.[1]
[1]Siemer v Judicial Conduct Commissioner [2012] NZHC 2710.
On 8 November 2012, security for costs on the appeal was set at $5,880.
Mr Siemer then applied for security to be dispensed with under r 35(6)(c) of the Court of Appeal (Civil) Rules 2005. The Registrar determined that it was not an appropriate case for security to be dispensed with and advised Mr Siemer of that decision in a letter dated 18 June 2013. The Registrar confirmed that security remained set at $5,880.
Mr Siemer now seeks a review of the Registrar’s decision.

The approach of the Registrar

In dismissing Mr Siemer’s application, the Registrar noted that impecuniosity alone does not mean security should be dispensed with. She stated that she did not consider there were exceptional circumstances. Nor did she consider that the case was one of significant public interest. The Registrar also stated that after considering three Court of Appeal judgments she was of the view that it was not an appropriate case for dispensing with security of costs[2] and concluded that security was necessary to protect the respondent in terms of costs should the appeal fail.

Grounds for review

[2]Fava v Zaghloul [2007] NZCA 498, (2008) 18 PRNZ 943; Siemer v Chief Justice Sian Elias of the New Zealand Supreme Court [2011] NZCA 183; and Siemer v Heron [2013] NZCA 202.

In support of his application for review of the Registrar’s decision, Mr Siemer advances the following arguments:
(a)The Registrar failed to address his financial position.
(b)He has already been found sufficiently impecunious to warrant waiving the filing fee which is significantly less than the amount of the security.
(c)The Registrar did not have jurisdiction to consider any factors other than financial position.
(d)The Registrar has a conflict of interest in that he is suing her alleging a breach of the statutory requirements under the Court of Appeal (Civil) Rules to accept appeals.
(e)The bona fides of the appeal are straightforward and uncontested.
(f)The…

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.

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Details

Case: [2013] NZCA 334
Decision Date: 30 July 2013 at 2.30 pm

CaseChat Overview and Summary

In this appeal, Vincent Ross Siemer sought a review of the Registrar's decision to refuse to dispense with the payment of security for costs in relation to his appeal against a decision of the High Court. The High Court had ordered that the judicial review proceedings brought by Mr Siemer against the Judicial Complaints Commissioner be struck out as disclosing no reasonable cause of action. Mr Siemer sought to appeal this decision, and security for costs was set at $5,880. He then applied for security to be dispensed with, but the Registrar refused, and he sought review of that decision.

The legal issues before the Court of Appeal were whether the Registrar had erred in refusing to dispense with the payment of security for costs. The applicant argued that the Registrar failed to address his financial position, that he had already been found sufficiently impecunious to warrant waiving the filing fee, and that the Registrar did not have jurisdiction to consider any factors other than financial position. He also argued that the Registrar had a conflict of interest, that the bona fides of the appeal were straightforward and uncontested, and that the imposition of security was an administrative bar that breached international human rights conventions.

The Court of Appeal considered the arguments and found that the Registrar was not required to assess the merits of the appeal or recuse herself because of the fact she was apparently being sued by Mr Siemer. The Court found that the only factor in support of dispensing with security of costs or a reduction was Mr Siemer’s financial position, but that this was not determinative. The Court found that there were no exceptional circumstances to justify dispensing with the security of costs or a reduction, and that it would not be in the interests of justice to do so. The Court accordingly upheld the Registrar’s decision.

The Court dismissed the application for review of the Registrar’s decision relating to security for costs. The applicant was required to pay security for costs in the sum of $5,888.00 within 20 working days of the date of the judgment. There was no order for costs on this application.

Orders