Siemer v Legal Complaints Review Officer

[2024] NZHC 808

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-99

[2024] NZHC 808

UNDER

the Judicial Review Procedure Act 2016 s 27 of the New Zealand Bill of Rights Act 1990 and the Lawyers and Conveyancers Act 2016

BETWEEN

VINCENT ROSS SIEMER

Applicant

AND

LEGAL COMPLAINTS REVIEW OFFICER

First Respondent

CLAYTON LUKE
Second Respondent

JANE SIEMER

Third Respondent

Hearing:	11 March 2024
Appearances:	Applicant in person and J Orpin-Dowell to assist No appearance for Respondents
Judgment:	10 June 2024

JUDGMENT OF WHATA

Leave to Appeal

This judgment was delivered by me on 10 June 2024 at 4.30 pm,

pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:

Crown Law, Wellington Meredith Connell, Auckland K M Muller, Auckland

Copy to: V Siemer and J Siemer

SIEMER v LEGAL COMPLAINTS REVIEW OFFICER [2024] NZHC 808 [10 June 2024]

[1]        Mr Siemer seeks leave to appeal a decision of this Court declining him travel disbursements of $70.56.1

Process to date

[2]        The long and winding process to date forms an important backdrop to the present application. Mr Siemer had previously sought leave to appeal but was told by this Court that leave was not required on a costs order.2 He then filed his appeal with the Court of Appeal. An issue of jurisdiction was raised by that Court, and after hearing from Mr Siemer and counsel assisting, the Court of Appeal resolved that leave to appeal was required pursuant to s 56(3) of the Senior Courts Act 2016 and the matter referred back to this Court for consideration.3

The disbursement claim

[3]        The background to this matter is helpfully set out in the judgment of the Court of Appeal and largely adopted here.4

[4]        Mr Siemer commenced a judicial review proceeding relating to the decision of the first respondent (LCRO) striking out his application for a review of the determination made by the Standards Committee of the New Zealand Law Society in relation to complaints made by him against Mr Luke under the Lawyers Conveyancing Act 2006.

[5]        For reasons that are unnecessary to narrate, Mr Luke did not file a statement of defence within time. On 4 November 2021, Mr Siemer applied for notice for a formal proof hearing. He claimed that Mr Luke having failed to file a statement of defence had forfeited any right to defend. There then followed another round of procedural matters but in the result, this Court resolved that Mr Siemer’s application for formal proof should proceed.5

1      Siemer v Legal Complaints Review Officer & Ors [2022] NZHC 908 at [28] (the costs judgment).

2      Siemer v Legal Complaints Review Officer & Ors HC Auckland CIV-2021-404-000099, 8 June 2022 (Minute of Downs J) at [2].

3      Siemer v Legal Complaints Review Officer & Ors [2024] NZCA 219 (the jurisdiction judgment).

4      Above n 3, at [4]–[10].

5      Siemer v  Legal  Complaints  Review  Officer  &  Ors  HC  Auckland  CIV-2021-404-000099,  19 November 2021 (Minute of Woolford J).

[6]        Mr Luke then filed an application for leave to file a statement of defence dated 11 February 2022. The application for leave was joined to the application for formal proof and set down to be determined at the same time as the application for formal proof. It transpired that the Court did not hear that claim for formal proof instead focusing on the application for leave. In the result, Harland J found that the matters raised by Mr Luke did not amount to a substantial defence to the claim for judicial review and that the delay in filing a statement of defence was not reasonably explained.6 The application by Mr Luke was therefore dismissed. However, the Court did not have time on the day to consider the application for formal proof. That matter was deferred to another date.

[7]        Mr Siemer then made an application for costs on the failed interlocutory application, through his then counsel Mr Thwaite on a 2B basis together with a      50 per cent uplift pursuant  to  r 14.6(3)(b)(2)  on  the  High  Court  rules  (HCR).  Mr Siemer also sought a reimbursement for travel costs he said were wasted when Mr Luke’s late application caused an adjournment of the formal proof. He seeks

$70.56. Mr Luke agreed that costs on a category 2 basis should be allowed but that they should be calculated on a band A not band B basis.

[8]        Justice Harland resolved that the application should be determined on a band 2B basis. In terms of uplift, the Court concluded this was not a case where Mr Luke’s application was meritless or pursuant to an unnecessary step and on that basis the application for uplift was rejected. Furthermore, Harland J agreed with counsel for Mr Luke that the adjournment of the formal proof would not significantly affect    Mr Siemer’s costs save for his travel expenses to and from the relocated hearing.7  On balance the judge was not satisfied that Mr Siemer was justified for uplift as sought.

[9]        As to disbursements, the High Court records that Mr Luke did not address the travel reimbursement claim. The Judge nevertheless rejected Mr Siemer’s application:8

6      Siemer v Legal Complainsts Review Officer & Ors [2022] NZHC 440 at [50]–[53].

7 The costs judgment, above n 1, at [23].

8 Above n 1, at [28].

This disbursement is claimed because Mr Siemer would have represented himself at the formal proof hearing, however, it did not proceed because I reserved my judgment in respect of the leave application. The decision to reserve my judgment rather than proceed with the formal proof hearing was not something Mr Luke could have anticipated, nor was he responsible for my decision to reserve judgment. I do not consider it would be fair to require  Mr Luke to reimburse Mr Siemer for his travel costs.

[10]      Mr Siemer initially sought leave to appeal this judgment but was told by the High Court that leave was not needed on an issue of costs.9

Assessment

[11]      Section 56 of the Senior Courts Act 2016 governs leave. As the Court of Appeal in McNaughton stated:10

[2]   The principles that apply to an application seeking leave to appeal an interlocutory decision are well settled. In Finewood Upholstery Ltd v Vaughan Fitzgerald J observed that:

[13] The requirement for leave to appeal should  serve  as  a “filtering mechanism”, to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made.

[3]    The following considerations apply:

(a)a high threshold exists;

(b)the applicant must identify an arguable error of law or fact;

(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;

(d)the circumstances must warrant incurring further delay; and

(e)the ultimate question is whether the interests of justice are served by granting leave.

(footnotes omitted)

[12]      Ordinarily this Court might be reluctant to grant leave to appeal given the small amount claimed. But the pathway here has been somewhat unfortunate. As noted,  Mr Siemer had previously applied for leave to appeal only to be told that it was not

9      Above n 2.

10     McNaughton v Miller [2022] NZCA 273.

necessary by this Court. He then commenced his appeal in the Court of Appeal only to be told, after two hearings, that leave was in fact required. I am aware of all of this as I was a member of the Court of Appeal panel that sent him back to this Court, and being seized of the matter, I elected to sit on this application for leave.

[13]      Returning to the merits, I am satisfied that given this background, leave should be granted as a matter of basic fairness to Mr Siemer. I am also satisfied that he has a reasonably arguable case that the High Court was wrong to decline disbursements for his travel expenses. The travel disbursements were wasted costs, and his claim to them was, in fact, not opposed.

[14]Leave to appeal is accordingly granted.

[15]      As the respondents did not engage in the appeal process and were not involved in this process, I make no order for costs or disbursements on this application.

Whata J