Siemer v Stiassny - [2013] NZCA 390

IN THE COURT OF APPEAL OF NEW ZEALAND

CA166/2013
[2013] NZCA 390

BETWEEN	VINCENT ROSS SIEMER Appellant
AND	MICHAEL PETER STIASSNY & ANOR Respondent

Counsel:

Appellant in person
P Hunt for Respondent

Judgment:

(On the papers)

22 August 2013 at 11.00 am

JUDGMENT OF HARRISON J
(Review of Registrar’s decision refusing to dispense with security for costs)

A The application to review the Registrar’s decision is dismissed.
B The appellant is to pay security for costs by 26 August 2013.
CThe Registrar is not to accept from or for Mr Siemer any further documents relating to this appeal or enter into any correspondence or discussions with him for that purpose unless and until he gives security.

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REASONS

On 26 February 2013 Vincent Siemer filed an appeal against a decision delivered by Toogood J in the High Court on 22 February 2013.[1] On 25 March 2013 the Registrar fixed security for costs on the appeal at $5,880. On 29 April Mr Siemer applied under r 35(6) for a dispensation or reduction in security for costs. The Registrar declined to dispense with security for costs or reduce the amount payable in a decision delivered on 29 July.
[1]Stiassny v Siemer [2013] NZHC 301.
Mr Siemer applies for a review of the Registrar’s decision made on 29 July. In support he submits that security for costs should be dispensed with on the grounds, in summary, that: (a) he is deemed impecunious and imposition of security at a level five times higher than the waived filing fee violates his rights to justice; (b) his appeal is brought in good faith; and (c) the grounds of appeal are “self-evident and strong”.
The legal principles are well settled.[2] The ultimate question is whether the interests of justice require dispensation or reduction of security for costs. In determining this issue it is relevant to consider: (a) whether an appellant’s appeal rights will be rendered nugatory if dispensation or reduction is not granted; and (b) whether the appellant has an arguable case on the merits, because respondents should not be required to incur the expense of arguing a meritless appeal without reasonable protection as to costs. An appellant must demonstrate exceptional circumstances in order to justify dispensation.
[2]Easton v Broadcasting Commission [2009] NZCA 252, (2009) 19 PRNZ 675.
The fact that the Registrar has waived Mr Siemer’s obligation to pay filing fees on the ground of an inability to pay is not decisive. Mr Siemer’s declaration filed in support of his application for waiver provides little detail of his financial circumstances and no supporting documents. It does not satisfy me of his impecuniosity for the purpose of reviewing an application to dispense with security for costs. I am not satisfied that Mr Siemer’s rights of appeal will be rendered nugatory without dispensation from payment of security.
In any event, impecuniosity is not of itself a sufficient ground for waiving security for costs. Something more must be established. Mr Siemer has identified 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 Stiassny

Details

AGLC: Siemer v Stiassny [2013] NZCA 390
Case: [2013] NZCA 390
Decision Date: 22 August 2013 at 11.00 am

CaseChat Overview and Summary

In Siemer v Stiassny, Vincent Siemer appealed against a decision of the High Court, seeking a review of the Registrar's decision that refused to dispense with security for costs. The case was heard in the Court of Appeal of New Zealand. Siemer argued that the imposition of security for costs at a level five times higher than the waived filing fee violated his rights to justice, his appeal was brought in good faith, and the grounds of appeal were self-evident and strong. The legal issue was whether the interests of justice required dispensation or reduction of security for costs. The court considered whether Siemer's appeal rights would be rendered nugatory if dispensation or reduction was not granted and whether Siemer had an arguable case on the merits. The court held that Siemer had failed to demonstrate exceptional circumstances to justify dispensation and that the grounds of appeal were not arguable. Therefore, the court dismissed the application to review the Registrar's decision and ordered Siemer to pay security for costs by 26 August 2013. The Registrar was not to accept any further documents relating to the appeal from or for Siemer until he gave security.

Orders