Siemer v Solicitor-General

[2008] NZCA 414

IN THE COURT OF APPEAL OF NEW ZEALAND

CA447/2008
[2008] NZCA 414

BETWEENVINCENT ROSS SIEMER

Appellant

ANDSOLICITOR-GENERAL FOR NEW ZEALAND

Respondent

Counsel:Appellant in person

B J Horsley and K Laurenson for Respondent

Judgment:10 October 2008 at 10 am

JUDGMENT OF O’REGAN J

The application to review the decision of the Deputy Registrar declining to dispense with security for costs is allowed.  Payment of security will not be required.

REASONS

[1]       Mr Siemer applied to the Registrar under r 35(6) of the Court of Appeal (Civil) Rules 2005 (the Rules) to dispense with security for costs in connection with his appeal, CA447/2008.  The matter was considered by the Deputy Registrar and she declined his application.  He has now applied for a review of the Deputy Registrar’s decision.  I have personally considered the application to review the Deputy Registrar’s decision, and the submissions of Mr Siemer and counsel for the respondent, under r 7(2) of the Rules and s 61A(3) of the Judicature Act 1908.

[2] The appeal relates to a decision of the High Court ordering that Mr Siemer be committed to prison for a period of six months for contempt of Court: HC AK CIV 2008-404-472 8 July 2008. The background to the appeal is set out in this Court’s judgment in respect of Mr Siemer’s implication for a stay of the High Court order ([2008] NZCA 369) and I will not repeat it here.

[3]       In declining the application for an order dispensing with costs, the Deputy Registrar noted that Mr Siemer had failed to pay costs awarded against him in other proceedings and that costs had also been awarded against him in the decision under appeal.

[4]       I issued a minute on 29 September 2008 seeking a response from the Crown to Mr Siemer’s application (the Deputy Registrar recorded that no response had been received from the Crown prior to her decision, despite a request for such a response).

[5]       The Crown filed a response opposing dispensation of security for costs on the basis that Mr Siemer had not indicated that he was unable to pay, he had not paid outstanding awards in other proceedings and there was no compelling reason to depart from the normal position that security for costs be paid by an appellant.  In the 29 September minute, I said that Mr Siemer could file a reply to the respondent’s submission by Monday 6 October 2008.  I understand that no reply submission has been received from him.  I will therefore deal with the application for review on the basis of the material now before me.

[6]       I agree with the Deputy Registrar and the respondent that, in ordinary civil proceedings, Mr Siemer would not be a compelling candidate for waiver, given his failure to meet costs awards and obey court orders.  However, the present case is unusual in that it involves an order committing Mr Siemer to prison.  In those circumstances I consider that the approach normally taken to applications for orders dispensing with security need to be balanced by the importance of access to the court for a person contesting an order which has the effect of committing him to imprisonment.  While I do not disagree with the Deputy Registrar’s evaluation of the merits of Mr Siemer’s application against the normal criteria, I believe that these are outweighed by the unique access to justice issues which arise in a case such as this.

[7]       In the circumstances I conclude that it is appropriate to make an order dispensing with security.  Accordingly, I allow the application under r 7(2).  Under the power given to me by s 61A(3) of the Judicature Act 1908 I revoke the Deputy Registrar’s decision and order that security be dispensed with in this case.

Solicitors:
Crown Law Office, Wellington for Respondent