Vincent Ross Siemer v Michael Heron - [2013] NZSC 111

IN THE SUPREME COURT OF NEW ZEALAND

SC 45/2013
SC 53/2013
SC 54/2013
[2013] NZSC 111

BETWEEN

VINCENT ROSS SIEMER
Applicant

AND

MICHAEL RICHARD HERON
First Respondent

RUSSELL McVEAGH
Second Respondent

FORCE 1 SECURITY LIMITED
Third Respondent

SIONE TAMAKI
Fourth Respondent

PIO SAMI
Fifth Respondent

Court:	McGrath, Glazebrook and Arnold JJ
Counsel:	Applicant in person T L Clarke and S P H Elliott for First and Second Respondents P F Wicks for Third, Fourth and Fifth Respondents
Judgment:	14 November 2013

JUDGMENT OF THE COURT

A The applications for leave to appeal are dismissed.
BAny further applications to this Court that relate to the underlying High Court appeal at issue in these applications should not be accepted for filing.

CCosts of $2,500 plus reasonable disbursements (to be set by the Registrar if necessary) are to be paid to the first and second respondents.

____________________________________________________________________

REASONS

Mr Siemer has filed three applications for leave to appeal against decisions made in the Court of Appeal which have their origins in the decision of the District Court discussed in the next paragraph.

Background

On 4 July 2012 Judge Bouchier struck out a proceeding filed by Mr Siemer in the District Court as an abuse of process.[1] The proceedings were essentially duplicitous of earlier proceedings and related to an alleged incident in 2007.[2]
[1]Siemer v Heron DC Auckland CIV-2011-004-002079, 4 July 2012 at [35].
[2]The history of the earlier proceedings is set out at [8]–[15] of Siemer v Heron [2013] NZHC 1604.
Mr Siemer filed an appeal against Judge Bouchier’s judgment in the High Court. By a judgment of 16 August 2012, Wylie J directed that Mr Siemer, within 10 working days, pay security for costs of $995 on account of the first and second respondents and $995 on account of the third, fourth and fifth respondents.[3] It was expressly recorded in the judgment that, if Mr Siemer did not pay those sums within 10 working days, then s 74(2) of the District Courts Act 1947 would deem the appeal to be abandoned.[4]

Application SC 54/2013

[3]Siemer v Heron [2012] NZHC 2073 at [32].

[4]At [33].

The 10 working day period expired on 30 August 2012. Mr Siemer did not pay security for costs by that date. Instead, on 3 September 2012, he lodged an appeal against Wylie J’s judgment with the Court of Appeal.
The notice of appeal against Wylie J’s judgment was rejected by the Court of Appeal Registrar for want of jurisdiction. The Registrar’s refusal to accept the appeal for filing was confirmed by Wild J in a judgment of 6 June 2013.[5] This was on the grounds that, as Mr Siemer’s appeal to the High Court had been deemed to be abandoned on 30 August 2012, there was nothing left to appeal from.[6]
[5]Siemer v Heron [2013] NZCA 202.
[6]At [12]–[13], referring to the decision of this Court in Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309 [Siemer v Heron (SC)]…

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.

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Details

Case: [2013] NZSC 111
Decision Date: 14 November 2013

CaseChat Overview and Summary

Vincent Ross Siemer filed three applications for leave to appeal against decisions made by the Court of Appeal in relation to a High Court appeal. The High Court appeal originated from a District Court decision in which the Court struck out Siemer's proceedings as an abuse of process. Siemer had not paid security for costs, leading to the abandonment of the appeal. The Court of Appeal rejected Siemer's appeals for leave to appeal, holding there was no extant appeal in the High Court.

The legal issues before the Court were whether Siemer's appeals for leave to appeal against the Court of Appeal decisions should be allowed. The Court had to determine if there was any extant appeal in the High Court that Siemer could appeal to the Supreme Court from. The Court also had to consider if Siemer's appeals for leave to appeal were an abuse of process.

The Court found that there was no extant appeal in the High Court, as the appeal had been deemed abandoned by operation of s 74(2) of the District Courts Act 1947. As there was nothing to appeal, Siemer's appeals for leave to appeal had to be dismissed. The Court also found that any further applications deriving from the underlying appeal should not be accepted for filing, as they would be an abuse of process.

The Supreme Court dismissed all three applications for leave to appeal. The Court also ordered Siemer to pay costs of $2,500 plus disbursements to the first and second respondents. The Court acceded to the request of the first and second respondents that any further applications deriving from the underlying appeal should not be accepted for filing.

Orders