Siemer v Chief Justice Sian Elias of the New Zealand Supreme Court [2011] NZCA 183 (13 May 2011)

Last Updated: 17 May 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA95/2011 [2011] NZCA 183

BETWEEN VINCENT ROSS SIEMER Appellant

AND CHIEF JUSTICE SIAN ELIAS OF THE NEW ZEALAND SUPREME COURT Respondent

Counsel: Appellant in person H S Hancock for Respondent

Judgment: 13 May 2011 at 10 am

JUDGMENT OF ARNOLD J

The application for review of the Registrar’s decision declining to waive the payment of security for costs is dismissed.

REASONS

Introduction

[1] The applicant, Mr Siemer, filed an appeal and applied for a dispensation from the requirement to pay security for costs.[1] The Registrar declined his application, with the result that security in the amount of $5,560.00 was payable. This is an application for review of the Registrar’s decision.

Background

[2] Mr Siemer filed a proceeding in the High Court alleging that he was deprived of his right:

(a) to natural justice under s 27 of the New Zealand Bill of Rights Act 1990 as a result of the conduct of judges who sat on various court hearings in which he was a party; and
(b) to be heard by unbiased and disinterested decision-makers (that is, the judges involved).

Mr Siemer seeks damages totalling around $1.6 million.

[3] The claims relate to earlier court proceedings in which Mr Siemer has been involved, in particular a defamation claim brought against him by Ferrier Hodgson (now called Korda Mentha) and Mr Stiassny, and a related contempt proceeding. These proceedings have now been finally determined, save for the issue of damages on which this Court has given judgment[2] but Mr Siemer’s application for leave to appeal has not yet been determined by the Supreme Court.

[4] I will not traverse the background to these earlier proceedings. It is summarised in earlier decisions of this Court.[3]

[5] The respondent applied to strike the proceeding out. Andrews J granted this application.[4] The Judge found that Mr Siemer was, in effect, attempting to re-litigate issues that had already been finally resolved by the courts. Further, she held that Mr Siemer’s claim had no reasonable basis, was frivolous and vexatious and amounted to an abuse of process.

[6] Mr Siemer filed an appeal from that decision in this Court on 21 February 2011. On 10 March 2011 he applied for a waiver of security for costs on the basis that:

(a) he is a bankrupt operating on a fee waiver; and

(b) the respondent is effectively the state, so security for costs is not required to avoid financial hardship to that party.

[7] On 15 March 2011 the Registrar declined Mr Siemer’s application. She noted that Mr Siemer had not provided any proof of his financial status and that, in any case, impecuniosity alone is an insufficient reason to grant dispensation from providing security for costs. There must be exceptional circumstances and Mr Siemer had failed to point to any. In addition, Andrews J’s finding that Mr Siemer’s claim was frivolous and vexatious indicated that security was required. Security was set at $5,560.00, to be paid on or before 13 May 2011.

[8] Mr Siemer applied for a review of the Registrar’s decision on 26 April 2011,[5] within the 10 working day period allowed for such applications under the Court of Appeal (Civil) Rules 2005.[6]

Security for Costs - General Principles

[9] In the normal course, appellants in civil proceedings in this Court are required to pay security for costs.[7] If an appellant wishes to apply to the Registrar for a waiver of security, he or she must do so within 20 days of filing the appeal.[8] The Registrar may vary or waive security “if satisfied that the circumstances warrant it”.[9]

[10] Security for costs will be waived where it is in the interests of justice to do so. There must be some exceptional circumstance to justify waiver.[10] The appellant must honestly intend to pursue the appeal, and the appeal must be arguable as respondents should not face the threat of hopeless appeals without provision for security. The importance of the issues raised in the appeal will be significant, as will the question whether there is any public interest in having them determined.[11] Impecuniosity alone is not usually sufficient to justify a waiver, but may be reason to reduce the quantum of security.[12]

Discussion

[11] I consider that the Registrar was right to refuse to dispense with security. First, Mr Siemer’s position is that he is unable to pay security for costs because he is an undischarged bankrupt operating on a fee waiver. However, Mr Siemer clearly has access to financial resources and, in any event, impecuniosity alone is not sufficient to justify dispensing with security for costs.

[12] Second, the appeal does not appear to have any prospect of success. The notice of appeal does not identify any specific errors of law made by Andrews J. Rather, it reiterates points that Mr Siemer has previously raised in the underlying litigation and which have been rejected. Accordingly, the proceeding appears to be simply an attempt to re-litigate issues that have already been finally determined. The appeal does not raise any new issue which there is a public interest in having determined.

[13] Finally, the identity of the respondent does not reduce the need for payment of security. The public interest does not require that the Chief Justice be subjected to a hopeless and vexatious appeal without provision for security.

[14] Accordingly, I consider the Registrar was right to decline Mr Siemer’s application to dispense with security for costs.

Decision

[15] The application for review of the Registrar’s decision as to security for costs is declined. Security for costs of $5,560.00 must be paid into Court within 20 working days of the date of this judgment. There is no order for costs on this application.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] Court of Appeal (Civil) Rules 2005, r 35(6)(c).
[2] Siemer v Stiassny [2011] NZCA 106.
[3] See, for example, Siemer v Stiassny [2011] NZCA 1.

[4] Siemer v Chief Justice of The New Zealand Supreme Court HC Auckland CIV-2010-404-1909, 11 February 2011.
[5] Court of Appeal (Civil) Rules 2005, r 7(2).
[6] Rule 7(3).

[7] Rule 35(2).

[8] Rule 35(3) and (6).

[9] Rule 35(6).

[10] Fava v Zaghloul [2007] NZCA 498 at [9].

[11] Creser v Official Assignee CA196/05, 12 June 2006 at [29].

[12] Fava v Zaghloul at [9]; Easton v Broadcasting Commission [2009] NZCA 252 at [5].