Siemer v Stiassny [2013] NZCA 390 (22 August 2013)

Last Updated: 27 August 2013

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)

1. The application to review the Registrar’s decision is dismissed.

2. The appellant is to pay security for costs by 26 August 2013.

100. The 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

[1] 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.
[2] 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”.
[3] 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.
[4] 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.
[5] 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 question of law or issue of significant interest to the public arising from his appeal in this way:

Whether “inherent power” claimed to restrict court access [sic] in Paragraphs [42] and [45] of the judgment violates elementary rule of law principles, as it is not prescribed or expressly supported by law, and was issued without notice or hearing on the issue.

[6] In the two passages challenged by Mr Siemer, Toogood J directed as follows:

[42] I consider it appropriate to make an order, in the exercise of the Court’s inherent power to prevent abuses of its process, the purpose of which will be to prevent Mr Siemer from continuing to waste the time and resources of this Court and the plaintiffs in respect of this proceeding.

...

[45] I order that the Registrar of this Court shall refuse to receive for filing, except with the leave of a Judge, any document which Mr Siemer may attempt to file in this Court, in this proceeding or any other, the purpose of which is to challenge any aspect of the judgment of Cooper J in this proceeding dated 23 December 2008, or any subsequent judgment, order, or direction of any court related to it, whether under file number
CIV-2005-404-1808 or not. To avoid doubt, this order precludes any attempt by Mr Siemer to apply for a recall or the setting aside of this judgment, but it does not limit any right of appeal he may have against it and does not extend to preventing him from filing any memorandum relating to costs on this application.

[7] These statements and orders do not give rise to an important or arguable question of law. They simply recite the Judge’s (a) conclusion on Mr Siemer’s originating application for an order recalling or setting aside a judgment delivered in the High Court over four years earlier and the subject of appellate judgments and (b) directions to the Registry not to accept any documents which Mr Siemer might attempt to file for the collateral purpose of challenging that earlier judgment including further applications to recall or set aside.
[8] Mr Siemer has failed to satisfy me that it is in the interests of justice to force Mr Stiassny to submit to the expense and inconvenience of answering an appeal without apparent merit in circumstances where an award of costs is likely to be irrecoverable if Mr Siemer’s assertion of impecuniosity is correct.
[9] Mr Siemer has failed to establish that the Registrar erred in declining to dispense with security for costs. Security must be given by 26 August 2013. The 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.

Solicitors:
McElroys, Auckland for Respondent

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^[1] Stiassny v Siemer [2013] NZHC 301.

^[2] Easton v Broadcasting Commission [2009] NZCA 252, (2009) 19 PRNZ 675.