Siemer v O'Brien - [2015] NZCA 86

IN THE COURT OF APPEAL OF NEW ZEALAND

CA693/2014
[2015] NZCA 86

BETWEEN	VINCENT ROSS SIEMER Appellant
AND	CLARE O'BRIEN First Respondent
ATTORNEY-GENERAL Second Respondent

Counsel:

Appellant in person
D Harris for Second Respondent

Judgment:

(On the papers)

20 March 2015 at 11.30 am

JUDGMENT OF WHITE J

AThe appellant’s application under r 7(2) of the Court of Appeal (Civil) Rules 2005 for review of the Deputy Registrar’s decision refusing to dispense with security for costs is dismissed.
BThe time for the appellant to pay security for costs is extended to 27 March 2015.
CNo date for the hearing of the appeal is to be allocated unless the security for costs of $5,880 is paid on or before 27 March 2015.

____________________________________________________________________

REASONS

The appellant, Mr Siemer, has appealed against a High Court judgment of Williams J dismissing his application for declarations that the first respondent, Ms O’Brien, in her capacity as Registrar of this Court, acted unlawfully in fixing security for costs at $5,880 in an appeal to this Court against another decision of Williams J striking out as an abusive process another judicial review proceeding against a decision of the Judicial Conduct Commissioner.[1]
[1]Siemer v O’Brien [2014] NZHC 2886.
As Ms O’Brien abided the decision of the High Court, the Attorney-General appeared in that court to argue that the Registrar’s exercise of her power to fix security for costs under r 35 of the Court of Appeal (Civil) Rules 2005 (the Rules) was lawful. Mr Siemer challenged the Attorney-General’s standing to appear, but Williams J held that it was entirely appropriate for him to do so.[2]
[2]At [14]–[18].
Williams J was not prepared to consider an argument by Mr Siemer that the question of security for costs should have been considered by a Judge of this Court rather than by the Registrar because that matter had not been pleaded.[3]
[3]At [19]–[34].
Williams J rejected Mr Siemer’s argument which was pleaded, namely that the Registrar, not being legally trained, was in no position to consider the merits of his case when dealing with an application to dispense with security for costs. Williams J held that such an argument, if accepted, would mean the Registrar could never deal with an application under r 35(6) in any appeal and such a result would render the registrarial dispensation process redundant and would be the opposite of the drafter’s intention.[4]
[4]At [35].
Mr Siemer filed his notice of appeal dated 26 November 2014 against William J’s decision on 28 November 2014. Security for costs was set at $5,880.
On 12 December 2014 Mr Siemer applied to the Registrar of this Court for an order dispensing with security for costs.
By memorandum filed 19 December 2014 the Attorney-General opposed the application for dispensation with security for costs.
On 6 January 2015 the Deputy Registrar of this Court declined to make an order dispensing with security for costs. She was satisfied as to Mr Siemer’s impecuniosity, but was of the view that 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.

Continue reading Siemer v O'Brien

Details

AGLC: Siemer v O'Brien [2015] NZCA 86
Case: [2015] NZCA 86
Decision Date: 20 March 2015 at 11.30 am

CaseChat Overview and Summary

The appellant, Vincent Siemer, appealed against a High Court decision by Williams J dismissing his application for declarations that the first respondent, Clare O’Brien, in her capacity as Registrar of the Court of Appeal, acted unlawfully in setting security for costs at $5,880. The appeal was brought against a decision of Williams J striking out another judicial review proceeding as an abusive process. The appellant sought a review of the Deputy Registrar’s decision refusing to dispense with the security for costs. The legal issues before the court were whether the Deputy Registrar acted beyond her authority, had a conflict of interest, and whether her decision was flawed in law. The court rejected the appellant’s arguments, finding that the Deputy Registrar was competent to determine the application and that the appeal had little chance of success. The court found that the appellant had not established his impecuniosity or that a solvent litigant would reasonably wish to prosecute the appeal. The appellant’s application for review was dismissed, and the time for paying the security for costs was extended to 27 March 2015. If the security for costs was not paid by that date, the Attorney-General could apply for the appeal to be struck out.

The Court of Appeal dismissed the appellant’s application for review of the Deputy Registrar’s decision and extended the time for the appellant to pay the security for costs to 27 March 2015. The court found that the Deputy Registrar was competent to determine the application and that the appeal had little chance of success. The court rejected the appellant’s arguments that the Deputy Registrar acted beyond her authority, had a conflict of interest, and that her decision was flawed in law. The court found that the appellant had not established his impecuniosity or that a solvent litigant would reasonably wish to prosecute the appeal. The appellant’s application for review was dismissed, and no hearing date for the appeal would be allocated unless the security for costs was paid by 27 March 2015. If the security for costs was not paid by that date, the Attorney-General could apply for the appeal to be struck out.

Orders