Siemer v Stiassny - [2013] NZSC 115

IN THE SUPREME COURT OF NEW ZEALAND

SC 92/2013
[2013] NZSC 115

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

Court:	McGrath, William Young and Glazebrook JJ
Counsel:	Applicant in person P J L Hunt and J E Tomlinson for Respondents
Judgment:	14 November 2013

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.
BThe applicant is to pay costs of $2,500 plus all reasonable disbursements (as fixed, if necessary, by the Registrar) to the respondents.

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REASONS

Mr Siemer applies for leave to appeal against the decision of Harrison J dated 22 August 2013 upholding the Court of Appeal Registrar’s decision declining to dispense with security for costs.[1]

Background

[1]Siemer v Stiassny [2013] NZCA 390.

On 26 February 2013 Mr Siemer filed an appeal against a decision delivered by Toogood J in the High Court on 22 February 2013.[2] On 25 March 2013 the Court of Appeal Registrar ordered Mr Siemer to pay $5,880 security for costs in relation to that appeal.
[2]Stiassny v Siemer [2013] NZHC 301. In that decision, Toogood J dismissed as an abuse of process and application for recall of a decision of Cooper J in which Cooper J had ruled against Mr Siemer.
On 26 April 2013 Mr Siemer applied, under r 35(7) of the Court of Appeal (Civil) Rules 2005, for a dispensation from or a reduction in security for costs.
On 24 June 2013 Mr Siemer applied for a direction from a judge of the Court of Appeal, allegedly under s 61A(1) of the Judicature Act 1908 or r 7(2) of the Court of Appeal (Civil) Rules 2005, on the basis that the Registrar had failed to address his application to reduce or dispense with security.
On 29 July 2013 the Registrar wrote to Mr Siemer advising that she had declined his request to dispense with security.
On 22 August 2013 Harrison J released the decision referred at [1] above.

Grounds of application

The grounds of Mr Siemer’s application for leave are that:[3]
(a)he made no application for review of the Registrar’s decision of 29 July 2013 declining to dispense with security for costs;
(b)Harrison J failed to consider his application for an order under s 61A(1) of the Judicature Act dispensing with security; and
(c)Harrison J erred in concluding that security for costs should not be dispensed with.

Our assessment

[3]Mr Siemer made other arguments. These necessarily fail in light of our conclusions on the main issues.

The proper procedure for applying to dispense with or vary security for costs is, as occurred in this case, for Mr Siemer to apply to the Registrar under r 35(7) of the Court of Appeal (Civil) Rules. The Registrar dealt with that application on 29 July 2013.
Once that occurred, the only avenue for review of that decision is by a single judge under s 61A(3) of the Judicature Act.[4] This means that Harrison J was not able to consider Mr…

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] NZSC 115
Case: [2013] NZSC 115
Decision Date: 14 November 2013

CaseChat Overview and Summary

In the case of Siemer v Stiassny, the applicant, Vincent Ross Siemer, sought leave to appeal against the decision of Harrison J, which upheld the Court of Appeal Registrar's decision declining to dispense with security for costs. The respondents, Michael Peter Stiassny and another, were represented by counsel. The Supreme Court, consisting of McGrath, William Young, and Glazebrook JJ, heard the application and issued its judgment on 14 November 2013. The court dismissed the applicant's appeal and ordered the applicant to pay costs of $2,500 plus all reasonable disbursements to the respondents.

The legal issues that the court was required to decide included whether the applicant had followed the proper procedure for applying to dispense with or vary security for costs and whether the judge had erred in concluding that security for costs should not be dispensed with. The court held that the applicant had not followed the proper procedure for applying to dispense with or vary security for costs and that the judge had not erred in declining to dispense with security for costs. The court also held that the applicant's ground of appeal regarding the judge's failure to consider his application for an order under s 61A(1) of the Judicature Act had failed.

The court's reasoning was based on the principles of procedural fairness and the settled principles of law regarding security for costs. The court held that the proper procedure for applying to dispense with or vary security for costs was to apply to the Registrar under r 35(7) of the Court of Appeal (Civil) Rules 2005. The court also held that once the Registrar had made a decision, the only avenue for review of that decision was by a single judge under s 61A(3) of the Judicature Act. The court held that the judge had not erred in declining to dispense with security for costs because the applicant had not demonstrated that there was a risk of a substantial miscarriage of justice. The court also held that the applicant's ground of appeal regarding the judge's failure to consider his application for an order under s 61A(1) of the Judicature Act had failed because the applicant had not followed the proper procedure for applying to dispense with or vary security for costs.

The final orders of the court were that the application for leave to appeal was dismissed and that the applicant was to pay costs of $2,500 plus all reasonable disbursements to the respondents. The court's judgment provides guidance on the proper procedure for applying to dispense with or vary security for costs and the principles of law regarding security for costs.

Orders