Siemer v Registrar of the Supreme Court [2014] NZCA 456 (16 September 2014)

Last Updated: 3 October 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA318/2014 [2014] NZCA 456
BETWEEN	VINCENT ROSS SIEMER Appellant
AND	REGISTRAR OF THE SUPREME COURT First Respondent
	MINISTRY OF JUSTICE Second Respondent

Counsel:	Appellant in person H M Carrad for Respondents
Judgment: (On the papers)	16 September 2014 at 12.30 pm

JUDGMENT OF FRENCH J
(Review of Registrar’s Decision)

1. The application for review of the Registrar’s decision refusing to dispense with security for costs is dismissed.
2. Security for costs in the sum of $5,880 must be paid into Court within 20 working days of the date of this judgment.

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REASONS

Introduction

[1] Mr Siemer has filed a notice of appeal against a decision of Clifford J.^[1] Justice Clifford struck out proceedings Mr Siemer had commenced to judicially review a decision of the Registrar of the Supreme Court declining Mr Siemer access to Court documents. The Judge held judicial review was not available.
[2] On 25 June 2014 security for costs on the appeal was set at $5,880.
[3] Mr Siemer then applied for security to be dispensed with under r 35(6)(c) of the Court of Appeal (Civil) Rules 2005.
[4] The Registrar of this Court declined the application and advised Mr Siemer of her decision by letter dated 21 August 2014.
[5] Following receipt of that decision, Mr Siemer filed an application under s 61A(1) of the Judicature Act 1908 purporting to seek an order dispensing with security for costs.
[6] As Mr Siemer should have been aware from previous decisions,^[2] if he wished to challenge the Registrar’s decision, the correct course of action was for him to apply for a review of that decision under s 61A(3) of the Judicature Act and r 7(2) of the Court of Appeal (Civil) Rules.
[7] I accordingly issued a minute to this effect on 28 August 2014.
[8] Mr Siemer then filed a further application purporting to be in compliance with my minute. Although the new application is not expressly described as being an application for review, I am prepared to treat it as such.

Grounds for review

[9] Mr Siemer contends the Registrar of this Court has a conflict of interest that renders her decision a nullity and that she was wrong to find the appeal does not raise matters of significant public importance.

The decision

[10] I am prepared to accept, for the purposes of this review, that Mr Siemer is impecunious.
[11] As stated in Reekie v Attorney-General, the discretion to dispense with security should be exercised so as to:^[3]

• (a) preserve access to the Court of Appeal by an impecunious appellant in the case of an appeal which a solvent appellant would reasonably wish to prosecute; and
• (b) prevent the use of impecuniosity to secure the advantage of being able to prosecute an appeal which would not be sensibly pursued by a solvent litigant.

[12] I am satisfied that this appeal falls into the second category. It is one that would not be sensibly pursued by a reasonable solvent litigant. First, the appeal is highly problematic. In striking out the proceedings, Clifford J relied on wellestablished authority.^[4] Secondly, and most importantly, there is an alternative remedy available to Mr Siemer. He has the right to apply for a review by a Supreme Court judge.
[13] I am also satisfied that the Registrar does not have a conflict of interest that disqualified her from entertaining Mr Siemer’s initial application. Contrary to a submission made by Mr Siemer, the fact he has issued proceedings against the Registrar is not a sufficient ground for disqualification.
[14] Also contrary to a submission made by Mr Siemer, the fact the filing fee has been waived is not inconsistent with a refusal to dispense with security for costs. Impecuniosity, while relevant, is not determinative.

Outcome

[15] The application for review is dismissed.
[16] Security for costs in the sum of $5,880 must be paid into Court within 20 workings days of the date of this judgment.

Solicitors:
Crown Law Office, Wellington for Respondents

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^[1] Siemer v Registrar, Supreme Court [2014] NZHC 1179.

^[2] Siemer v Stiassny [2013] NZSC 115 at [9]; Siemer v Stiassny [2013] NZSC 110 at [10].

^[3] Reekie v Attorney-General [2014] NZSC 63 at [35].

^[4] Mafart v Television New Zealand Ltd [2006] NZSC 33, [2006] 3 NZLR 18.