Siemer v Stiassny - [2014] NZSC 70

IN THE SUPREME COURT OF NEW ZEALAND

[2014] NZSC 70

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

Court:	Elias CJ, McGrath, William Young, Glazebrook and Arnold JJ
Counsel:	Applicant in person
Judgment:	13 June 2014

JUDGMENT OF THE COURT

The application for review is dismissed.

____________________________________________________________________

REASONS

In September 2013, Mr Siemer presented for filing two applications for leave to appeal to this Court against two decisions of the Registrar of the Court of Appeal.
In the case of both Mr Siemer’s applications for leave, the Registrar of the Court of Appeal had refused to accept applications for a direct ruling by a judge of that Court (under s 61A(1) of the Judicature Act 1908) to dispense with security for costs.[1] The Registrar’s refusal was on the basis that there is no provision for a party to bypass the procedure in the Court of Appeal (Civil) Rules 2005 relating to security for costs.
[1]The decisions of the Registrar of the Court of Appeal were related to applications in the appeals in Siemer v Stiassny CA 429/2013; and Siemer v Judicial Conduct Commissioner CA 452/2013.
Mr Siemer’s applications for leave to appeal to this Court against the decisions of the Registrar of the Court of Appeal were rejected by the Registrar of this Court for want of jurisdiction on 6 September 2013. The Registrar indicated that his view had been endorsed by Arnold J.
The application for review of the Supreme Court Registrar’s decision was dismissed by Glazebrook J under s 28(2) of the Supreme Court Act 2003.[2]
[2]Siemer v Stiassny [2013] NZSC 110.
Mr Siemer now makes a further application, pursuant to 28(3) of the Supreme Court Act, for a review of Glazebrook J’s decision with regard to one of Mr Siemer’s application: Siemer v Stiassny.[3]

Our assessment

[3]Glazebrook and Arnold JJ are members of the panel to decide this application in terms of Howard v Accident Compensation Corporation [2014] NZSC 31 at [3]. As in Howard we are assuming, without deciding, that s 28(3) of the Supreme Court Act applies in this case.

The principles relating to the issue of dispensing with security for costs in the Court of Appeal have been set out in the judgment of this Court in Reekie v Attorney-General.[4] As that judgment explains, the function of dispensing with security for costs has been, under the Court of Appeal Rules, given to the Registrar of the Court of Appeal.[5] Section 61A(3) of the Judicature Act confers on single judges of the Court of Appeal the power to review dispensation decisions.[6]
[4]Reekie v Attorney-General [2014] NZSC 63.
[5]At [17](a). The relevant rule is r 35(7).
[6]At [17](b).
Given the above, the Court of Appeal is entitled to require the procedure in the Rules to be followed by any applicant for dispensation. The Registrar of that Court is entitled to require that any application for dispensation be made to her, in accordance with the Rules. This…

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 [2014] NZSC 70
Case: [2014] NZSC 70
Decision Date: 13 June 2014

CaseChat Overview and Summary

The Supreme Court of New Zealand heard an application from Vincent Ross Siemer against Michael Peter Stiassny and another respondent. The dispute centred around the refusal by the Registrar of the Court of Appeal to accept applications for a direct ruling by a judge to dispense with security for costs. The Registrar's refusal was based on the argument that there is no provision for a party to bypass the procedure in the Court of Appeal (Civil) Rules 2005 regarding security for costs. This matter arose from applications in two appeals: Siemer v Stiassny CA 429/2013, and Siemer v Judicial Conduct Commissioner CA 452/2013.

The court had to decide whether the Registrar of the Court of Appeal was correct in refusing to accept the applications for a direct ruling and if the Supreme Court had jurisdiction to review these decisions. The principles set out in Reekie v Attorney-General, as well as the Court of Appeal Rules, were instrumental in guiding the court's decision. It was established that the Court of Appeal is entitled to require the procedure in its Rules to be followed by any applicant for dispensation and that the Registrar was correct to refuse Mr Siemer's applications. The court also considered that if Mr Siemer had made an application to the Registrar of the Court of Appeal and it had been unsuccessful, he would then have had the right to seek review by a single judge of the Court of Appeal.

The court concluded that the Registrar of the Court of Appeal was entitled to refuse the applications and that the applications for leave to appeal against the decisions of the Registrar of the Court of Appeal were rightly rejected by the Registrar of the Supreme Court. The court dismissed Mr Siemer's application for review of Glazebrook J's decision, thereby upholding the previous rulings that the Supreme Court did not have jurisdiction to review the decisions of the Registrar of the Court of Appeal in this matter.

Orders