Siemer v Official Assignee

IN THE COURT OF APPEAL OF NEW ZEALAND

CA862/2013
[2014] NZCA 3

BETWEEN	VINCENT SIEMER Appellant
AND	OFFICIAL ASSIGNEE Respondent

Judgment:

(On the papers)

7 February 2014 at 10 am

JUDGMENT OF WILD J

The application for review is dismissed.

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REASONS OF WILD J

By application dated and filed on 13 January, the appellant applies under r 7(2) for review of the Registrar’s decision refusing to accept his application dated 24 December last, and received by the Court when the Registry opened on 6 January.
The Registrar’s decision was made on 7 January. The appellant’s application of 24 December was one made under s 61A(1) Judicature Act 1908 for a ruling by a Judge dispensing with the security for costs a deputy registrar had fixed at $5,880.
In her 7 January decision the Registrar held that there was no jurisdiction for the 24 December application under s 61A(1).
I agree with the Registrar. The scheme of this Court’s Civil Rules is quite deliberately that security for costs is fixed automatically by the r 35(5) formula, and that any application for a departure is dealt with by the Registrar under r 35(6). That is to avoid the time of Judges of this Court being taken up dealing with security.
The appellant’s correct course, if dissatisfied with the fixing of security for costs, was an application under r 35(6). A Judge would only become involved if application was made to review the Registrar’s decision under r 35(6). The appellant’s application cut across the scheme of the rules, effectively by seeking to have a Judge perform the Registrar’s r 35(6) function.
For those reasons I uphold the Registrar’s decision of 7 January as correct and dismiss the application for review.

CaseChat Overview and Summary

In the case of Siemer v Official Assignee, the appellant, Vincent Siemer, sought to appeal the decision of the Registrar who refused his application under section 61A(1) of the Judicature Act 1908 to dispense with the security for costs fixed by a deputy registrar at $5,880. Siemer’s application was reviewed by the Court of Appeal of New Zealand, with Wild J presiding over the case. The primary issue before the court was whether the appellant had correctly applied for the review of the Registrar's decision or if his application was outside the scope of the court's jurisdiction.

The court examined the scheme of the court's Civil Rules and found that security for costs is automatically fixed by rule 35(5), with any departure from this rule being addressed by the Registrar under rule 35(6). Wild J concluded that Siemer's application bypassed this process, as it sought to have a judge perform the Registrar's function, which is not permitted under the rules. The appellant's correct procedure would have been to apply under rule 35(6) if dissatisfied with the security for costs fixed by the deputy registrar, with a judge only becoming involved upon review of the Registrar's decision under rule 35(6).

Wild J upheld the Registrar's decision, finding that Siemer's application was indeed outside the court's jurisdiction as it sought to have a judge perform a function reserved for the Registrar. Consequently, the application for review was dismissed. The court’s reasoning hinged on the importance of adhering to the established procedures outlined in the Civil Rules to ensure efficiency and proper allocation of judicial resources.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established