Siemer v Registrar of the Court of Appeal
[2013] NZHC 2240
•30 August 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2013-404-000562 [2013] NZHC 2240
UNDER the New Zealand Bill of Rights Act 1990
IN THE MATTER of an application for declaratory relief
BETWEEN VINCENT ROSS SIEMER Plaintiff
ANDREGISTRAR OF THE COURT OF APPEAL
First Defendant
ATTORNEY-GENERAL Second Defendant
Appearances: On the papers
Judgment: 30 August 2013 at 2:30PM
JUDGMENT OF ANDREWS J [Defendant's application to strike out]
This judgment is delivered by me on 30 August 2013 at 2:30pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Solicitors/Counsel: Crown Law, Wellington
SIEMER v REGISTRAR OF THE COURT OF APPEAL & ANOTHER [2013] NZHC 2240 [30 August 2013]
Introduction
[1] The plaintiff, Mr Siemer, has issued this proceeding in which he challenges the decision of the Registrar of the Court of Appeal (“the Registrar”) to decline to accept a notice of appeal for filing. In particular, he claims that the Registrar has administrative powers, only, but in declining to accept his notice of appeal was asserting judicial powers she did not have. He seeks:1
17.0A declaration that [the Registrar] was exercising interpretive judicial powers in refusing to accept [Mr Siemer’s] timely filing of his appeal against the Wylie Judgment, in violation of her administrative role in the New Zealand Government and thereby breaching [Mr Siemer’s] rights under section 27(1) of the [New Zealand Bill of Rights Act 1990].
18.0A declaration that [the Registrar] was in breach of the Court of Appeal (Civil) Rules 2005 by refusing to accept [Mr Siemer’s] appeal of the Wylie Judgment for filing.
19.0A declaration that [the Registrar] exercise of judicial powers was illegal and this illegal action violated [Mr Siemer’s] section 27(1) rights by unlawfully denying him Court access.
20.0 Such other relief as the Court deems fit.
[2] The defendants have applied for orders striking out Mr Siemer’s statement of claim, on the grounds that it discloses no reasonably arguable cause of action against the defendants, mounts a collateral attack on decisions made by another Court of competent jurisdiction, and is an abuse of the process of the Court.
Background
[3] On 16 August 2012 Wylie J delivered an interlocutory judgment ordering Mr Siemer to give security for costs in the total sum of $1,990, in respect of his appeal to the High Court against a judgment of the District Court (“the security for costs judgment”).2 In the security for costs judgment his Honour directed that if Mr Siemer did not pay the specified security for costs into Court within ten working days of the judgment, his appeal would be deemed to be abandoned, pursuant to
s 74(2) of the District Courts Act 1947.3
1 Plaintiff ’s amended statement of claim dated 10 June 2013, at paras 17 to 20.
2 Siemer v Heron [2012] NZHC 2073.
3 At [33].
[4] The ten working days expired on 30 August 2012. Mr Siemer did not, before that date, give the security ordered, nor did he seek any extension of time, or appeal or seek a stay of the judgment pending appeal.
[5] By a notice of appeal dated 3 September 2012, Mr Siemer sought to appeal against the judgment of Wylie J. The Registrar declined to accept the appeal, on the grounds that Mr Siemer’s appeal to the High Court was deemed to be abandoned and the Court of Appeal, therefore, had no jurisdiction.
[6] Mr Siemer applied to Wylie J to recall his judgment of 16 August 2012. In a judgment delivered on 24 October 2012, Wylie J declined to recall his earlier judgment (“the recall judgment”).4 In the recall judgment, his Honour recorded that, pursuant to s 74(2) of the District Court Act, if security for costs is not paid within the specified time, the appeal no longer exists, and “there is then nothing left to form the foundation for an appeal to the Court of Appeal.”5 His Honour went on to say:6
Similarly, there is no basis on which an aggrieved litigant can seek to recall a security for costs judgment. A judgment fixing security is inextricably linked with the underlying appeal. Once the underlying appeal has been deemed to be abandoned, there is no subsisting appeal to the High Court. There is nothing before the Court which can be amended or otherwise dealt with by way of a recall application, and this Court has no power to resurrect the appeal by a retrospective extension of time, or variation or cancellation of the orders made by me on 16 August 2012.
[7] Following the delivery of the recall judgment, Mr Siemer took the following steps:
(a) On 3 October 2012, he applied to the Court of Appeal for review of the Registrar’s decision to decline to accept for filing his notice of appeal against the security for costs judgment.
(b)On 31 October 2012, he filed an appeal to the Court of Appeal against the recall judgment. (This appeal was accepted for filing.)
4 Siemer v Heron [2012] NZHC 2802.
5 At [10].
6 Ibid.
(c) On 5 February 2013, he filed this proceeding in which, as noted earlier, he challenges the Registrar’s decision to decline to accept for filing his appeal against the security for costs judgment.
(d)On 20 February 2013, he applied to the Court of Appeal for review of the Registrar’s decision to decline to dispense with security for costs on his appeal against the recall judgment.
[8] The defendants’ strike-out application was set down for hearing on 25 July
2013. Pursuant to a Minute issued that day, I directed that the application be dealt with on the papers, and made directions regarding filing submissions. Pursuant to those directions, supplementary submissions for the defendants were received on 230
July 2013, and submissions were received from Mr Siemer on 8 August 2013.
Judgments of the Court of Appeal
[9] On 6 June 2013 two relevant judgments were issued by the Court of Appeal:
[10] In the first judgment, the Court dismissed Mr Siemer’s application for review of the Registrar’s decision to decline to dispense with security for costs in respect of his appeal against Wylie J’s recall judgment.7 In this judgment, the Court set out the history of the proceedings before Wylie J, and set out extracts from his Honour’s two judgments.
[11] In setting out its reasoning, the Court referred to the judgment of the Supreme Court in Siemer v Heron, in which the Supreme Court said, in relation to an appeal by Mr Siemer against a judgment (in other proceedings) ordering him to pay security for costs.8
[35] A right of appeal therefore did exist for Mr Siemer against Venning J’s security for costs order provided that he brought that appeal within time – that is, before s 74(2) of the District Courts Act operated to deem his underlying appeal to the High Court to be abandoned. Unfortunately for him he did not do so, with the result that, as the appeal in which the order was made no longer existed, there was nothing left about which to appeal to the Court of Appeal.
7 Siemer v Heron [2013] NZCA 202.
8 Siemer v Heron [[2011] NZSC 133, [2012] 1 NZLR 309, at [35], [36], [38], and [39].
[36] Section 74 provides that an appellant not granted legal aid may be required by the High Court Rules to give the Registrar of the High Court security for costs and that, if any security required is not given within the time limited by the rules, the appeal “must be treated as having been abandoned”. Obviously once it is abandoned, there can be no appeal to the Court of Appeal.
...
[38] The Judge exercised his power to make a direction about the time for payment and on several occasions extended the time fixed. But eventually, when Mr Siemer had not paid the sum ordered by the extended time of 29
May 2009, he refused to revisit the (amended) order. The consequence was that the appeal to the High Court had, under s 74(2), to be treated as
abandoned at the end of 29 May.
...
[41] Because s 74(2) had operated to deem the appeal abandoned, it is of no moment that the High Court and the Court of Appeal afterwards proceeded to consider Mr Siemer’s successive leave applications. They would never have availed him.
[12] The Court of Appeal held that it had no jurisdiction to entertain Mr Siemer’s appeal against the recall judgment, and that his notice of appeal should not have been accepted for filing. Accordingly, the Registrar’s decision declining to dispense with security for costs was a nullity, and there was nothing for the Court of Appeal to
review.9
[13] In the second judgment, the Court dismissed Mr Siemer’s application for review of the Registrar’s decision to decline to accept for filing his appeal against the security for costs judgment.10 The Court referred to its decision in respect of Mr Siemer’s appeal against the recall judgment. The Court then said:11
[5] ... It suffices to state that when, on 4 September 2012, Mr Siemer sought to appeal to this Court from [the security for costs judgment], his appeal to the High Court had been deemed abandoned. He therefore no longer had any appeal extant in the High Court, in respect of which he could appeal to this Court. The Registrar of this Court was therefore correct to decline to accept his notice of appeal.
[6] Having reviewed the Registrar’s decision declining to accept Mr Siemer’s notice of appeal I uphold it. I dismiss his application to review that decision.
9 Above, n7, at [14].
10 Siemer v Heron [2013] NZCA 204.
11 At [5] and [6].
Strike-out applications – principles
[14] The approach to be taken to applications to strike out pleadings is well- established, by the judgments of the Court of Appeal in Attorney-General v Prince,12 and the Supreme Court in Couch v Attorney-General.13 Briefly summarised, the principles are:
(a) Pleaded facts are assumed to be true. This does not extend to pleaded allegations which are entirely speculative and without foundation.
(b)The pleaded cause or causes of action must be clearly untenable. A claim should not be struck out summarily unless the Court can be certain that it cannot succeed.
(c) The jurisdiction is to be exercised sparingly, and only in clear cases.
(d)The jurisdiction is not excluded by the need to decide difficult issues of law.
(e) The Court should be particularly slow to strike out a claim in any developing area of the law.
[15] With those principles in mind, I turn to consider the issues raised by the
defendants’ strike out application.
Discussion
[16] Mr Siemer alleges that the Registrar:14
... violated statutory law when refusing to accept the plaintiff’s appeal for filing with the Court of Appeal and, in doing so, prevented Court access which violated the plaintiff’s right to natural justice guaranteed by section
27(1) [of the New Zealand Bill of Rights Act 1990].
[17] Section 27 of the Bill of Rights Act provides:
12 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.
13 Couch v Attorney-General[2008] NZSC 45, [2008] 3 NZLR 25, at [33].
14 Plaintiff ’s amended statement of claim dated 10 June 2013, at para 15.
27 Right to justice
(1) Every person has the right to the observance of the principles of
natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.
(2) Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.
(3) Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.
[18] Ms Jelas submitted that there had been no breach of Mr Siemer’s rights. He had not been deprived of any right of access to the Court of Appeal, as he had in fact availed himself of such access by applying to the Court of Appeal for review of the Registrar’s decision to decline to accept his appeal for filing.
[19] Secondly, Ms Jelas submitted that by applying to the Court of Appeal for review of the Registrar’s decision, Mr Siemer had placed the matter in the hands of the Court of Appeal. She submitted that the proceeding filed in this Court is a collateral attack on the processes of the Court of Appeal.
[20] Thirdly, Ms Jelas submitted that in any event, the issue sought to be determined by Mr Siemer – that is, whether the Registrar was wrong to decline to accept his appeal for filing – has now been determined by the judgment of the Court of Appeal on his application for review of the Registrar’s decision, referred to at [13], above. She submitted that the Court of Appeal has held that the Registrar was correct to decline to accept for filing Mr Siemer’s notice of appeal against the security for costs judgment.
[21] Mr Siemer submitted that it was “common ground” that the Registrar had no statutory authority to refuse his appeal for filing, and that there was no rule which provided for the Registrar to refuse to accept his appeal. He further submitted that the New Zealand judiciary could not claim to “hold each other accountable” if they failed to prevent the Registrar from acting unlawfully, to prevent access to the Court.
struck out.
[23] The provisions of s 74 of the District Courts Act are clear. They were made clear to Mr Siemer by the judgment of the Supreme Court in Siemer v Heron in
2011.15 Mr Siemer cannot succeed in a claim that the Registrar was wrong to decline
to accept for filing his appeal against the security for costs judgment.
[24] Secondly, Mr Siemer’s application to the Court of Appeal for review of the Registrar’s decision has been dismissed. The Court of Appeal held that the Registrar was correct to decline to accept the appeal. The matters raised by Mr Siemer in the proceeding in this Court have been determined by the Court of Appeal. Mr Siemer cannot attack in this Court the decision of the Court of Appeal.
[25] Thirdly, Mr Siemer is clearly wrong in his submission that it was “common ground” that the Registrar had no statutory authority to accept his appeal. The authority to refuse to accept the appeal is s 74(2) of the District Courts Act, pursuant to which Mr Siemer’s appeal was deemed abandoned when he failed to pay security for costs within the specified time. As both the Court of Appeal and the Supreme Court have made clear in their judgments, once there is no appeal to the High Court, there is nothing which can be further appealed. A notice of appeal to the Court of Appeal cannot be accepted for filing.
[26] Mr Siemer seeks to ensure that the Court properly consider the lawfulness of the Registrar’s action. Those actions have been considered by both the Court of Appeal (in respect of the present notice of appeal) and Supreme Court (in relation to an earlier notice of appeal). Both Courts have found there was no unlawful act.
[27] Accordingly, the defendants’ application for strike-out is granted. Mr
Siemer’s statement of claim is struck out in its entirety.
15 Above, n 8.
Andrews J
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