Siemer v Judicial Conduct Commissioner
[2013] NZCA 334
•30 July 2013 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA712/2012 [2013] NZCA 334 |
| BETWEEN | VINCENT ROSS SIEMER |
| AND | JUDICIAL CONDUCT COMMISSIONER |
| AND | HELEN DIANA WINKELMANN |
| Counsel: | Applicant in person |
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
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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 imposition of security is an administrative bar known to prevent an appeal with incontrovertible merit, and thereby breaches international human rights conventions.
For completeness, I note that Mr Siemer also complains about the delay in processing his application, although this is not advanced as a ground of review.
The applicable principles
The applicable principles are well established. In the normal course, appellants in civil proceedings are required to pay security for costs.[3] Security for costs may be dispensed with where it is in the interests of justice to do so. There must be some exceptional circumstances to justify dispensing with the security of costs.[4] The appellant must honestly intend to pursue the appeal and it must be arguable, as respondents should not face the threat of hopeless appeals without provision for security. The importance of the issues raised in the appeal will be significant, as will the question of whether there is any public interest in having them determined.[5] Impecuniosity alone is not usually sufficient to justify dispensing with the security of costs, but may be reason to reduce the quantum of security.[6]
Discussion
[3]Court of Appeal (Civil) Rules 2005, r 35(2).
[4]Fava v Zaghloul, above n 2, at [9].
[5]Creser v Official Assignee CA196/05, 12 June 2006 at [29].
[6]Fava v Zaghloul, above n 2, at [9].
I have carefully considered all of the points raised by Mr Siemer. However, I am not satisfied the Registrar has erred. The Registrar was not purporting to assess the merits of the appeal in the sense of its prospects of success but rather determining (correctly in my view) that the matters raised in the appeal did not involve significant matters of public interest. As to the merits of the appeal, my assessment is that the merits appear highly doubtful.
Contrary to a submission made by Mr Siemer, I am also satisfied that the Registrar was not required to recuse herself because of the fact he is apparently suing her. It is well established that the mere fact a complaint has been made of a decision maker does not mean that person is automatically disqualified from hearing a matter.
In my view, the only factor in support of dispensing with security of costs or a reduction is Mr Siemer’s financial position. However, while relevant, that is not of itself determinative. Similarly, while access to justice is obviously an important consideration, so too is the principle that a respondent should not have to face the risk of a hopeless appeal without provision for security.
Mr Siemer has not raised any exceptional circumstances of the type that would justify departure from the ordinary requirement to pay security for costs. In my assessment, it would not be in the interests of justice to dispense with security of costs or a reduction. I accordingly uphold the Registrar’s decision.
Outcome
The application for review of the Registrar’s decision relating to security for costs is dismissed. Security for costs in the sum of $5,888.00 must be paid into Court within 20 working days of the date of this judgment. There is no order for costs on this application.
Solicitors:
Crown Law Office, Wellington for First and Second Respondents
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