Siemer v O'Brien [2015] NZCA 86 (20 March 2015)

Last Updated: 24 March 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA693/2014 [2015] NZCA 86
BETWEEN	VINCENT ROSS SIEMER Appellant
AND	CLARE O'BRIEN First Respondent
	ATTORNEY-GENERAL Second Respondent

Counsel:	Appellant in person D Harris for Second Respondent
Judgment: (On the papers)	20 March 2015 at 11.30 am

JUDGMENT OF WHITE J

1. The appellant’s application under r 7(2) of the Court of Appeal (Civil) Rules 2005 for review of the Deputy Registrar’s decision refusing to dispense with security for costs is dismissed.
2. The time for the appellant to pay security for costs is extended to 27 March 2015.

100. No date for the hearing of the appeal is to be allocated unless the security for costs of $5,880 is paid on or before 27 March 2015.

____________________________________________________________________

REASONS

[1] The appellant, Mr Siemer, has appealed against a High Court judgment of Williams J dismissing his application for declarations that the first respondent, Ms O’Brien, in her capacity as Registrar of this Court, acted unlawfully in fixing security for costs at $5,880 in an appeal to this Court against another decision of Williams J striking out as an abusive process another judicial review proceeding against a decision of the Judicial Conduct Commissioner.^[1]
[2] As Ms O’Brien abided the decision of the High Court, the Attorney-General appeared in that court to argue that the Registrar’s exercise of her power to fix security for costs under r 35 of the Court of Appeal (Civil) Rules 2005 (the Rules) was lawful. Mr Siemer challenged the Attorney-General’s standing to appear, but Williams J held that it was entirely appropriate for him to do so.^[2]
[3] Williams J was not prepared to consider an argument by Mr Siemer that the question of security for costs should have been considered by a Judge of this Court rather than by the Registrar because that matter had not been pleaded.^[3]
[4] Williams J rejected Mr Siemer’s argument which was pleaded, namely that the Registrar, not being legally trained, was in no position to consider the merits of his case when dealing with an application to dispense with security for costs. Williams J held that such an argument, if accepted, would mean the Registrar could never deal with an application under r 35(6) in any appeal and such a result would render the registrarial dispensation process redundant and would be the opposite of the drafter’s intention.^[4]
[5] Mr Siemer filed his notice of appeal dated 26 November 2014 against William J’s decision on 28 November 2014. Security for costs was set at $5,880.
[6] On 12 December 2014 Mr Siemer applied to the Registrar of this Court for an order dispensing with security for costs.
[7] By memorandum filed 19 December 2014 the Attorney-General opposed the application for dispensation with security for costs.
[8] On 6 January 2015 the Deputy Registrar of this Court declined to make an order dispensing with security for costs. She was satisfied as to Mr Siemer’s impecuniosity, but was of the view that the appeal had very little chance of success.
[9] Mr Siemer then applied for a review of the Deputy Registrar’s decision by a Judge of this Court under r 7(2) of the Rules. This application was dated 9 January 2015 and accepted for filing on 12 January 2015.
[10] Mr Siemer’s grounds for seeking review are:

• (a) the Deputy Registrar acted ultra vires having no competence to determine the legal ground;
• (b) the Deputy Registrar had a precluding conflict of interest as she operated under the direction and direct supervision of the first respondent, the Registrar; and
• (c) the Deputy Registrar’s decision was fatally flawed in law, failed to address the express grounds of the application in light of the decision in Reekie v Attorney-General,^[5] and the appeal challenges “a legally unprecedented ruling posthumously bestowing standing to a non-party in a formal proof hearing”.

[11] By minute dated 11 February 2015 I noted that, in accordance with the decision of the Supreme Court in Reekie, the review function of the Judge of this Court is to be exercised de novo and I gave Mr Siemer an opportunity to provide information relating to his impecuniosity, in particular to make:

• (a) full disclosure of his financial circumstances and the sources of funding relied on by him to support his general lifestyle;
• (b) full disclosure of the financial circumstances of any related family trust that, or relative who, may be able to provide funding; and
• (c) information as to what, if any, security he can provide.

[12] By memorandum dated 12 February 2015 and filed 13 February 2015 Mr Siemer responded to my minute stating:

• (a) his inability to pay security for costs of $5,880 was self-evident by the Registrar’s decision that the lower filing fee of $1,000 was unaffordable;
• (b) he was currently operating on legal aid in another matter before this Court and recipients of legal aid are never required to pay security for costs;
• (c) there is “no related family trust that, or relative who, may be able to provide funding” as confirmed by the grant of legal aid in the other proceeding; and
• (d) he could afford $200 to $300 security, but as the sole respondent, Ms O’Brien, abides the decision of the Court there was no warrant for any impediment of security for costs.

[13] Mr Siemer also objected to my “arbitrary and unilateral addition” of the Attorney-General as the second respondent to this appeal.
[14] By memorandum dated and filed 27 February 2015, Ms Harris for the Attorney-General, responded to Mr Siemer’s memorandum.
[15] By memorandum dated 28 February 2015 and filed 2 March 2015, Mr Siemer filed a memorandum in reply to “Counsel Misrepresentations for the Non-party Attorney-General”.
[16] Mr Siemer also sought leave to appeal directly to the Supreme Court against the decision of Williams J which is the subject of the appeal to this Court. The Supreme Court declined Mr Siemer’s application for leave to appeal.^[6] In doing so, the Supreme Court held that Mr Siemer’s challenge to the Attorney-General’s participation in the hearing did not raise any arguable point because it was commonplace for judicial and other officers to abide the decision of the Court and, if there was no other contradictor, for the Attorney-General to appear and make submissions.^[7]
[17] Mr Siemer’s challenge to the position of the Attorney-General in the appeal to this Court may therefore be similarly dismissed as unarguable.
[18] Turning then to Mr Siemer’s application for review of the Deputy Registrar’s decision, the starting point now is the decision of the Supreme Court in Reekie v Attorney-General where it was held that the power to dispense with security for costs should be used to preserve access to this Court by impecunious litigants in cases which a solvent litigant would reasonably wish to prosecute.^[8]
[19] I am satisfied that Mr Siemer’s application for review fails to meet either of the grounds identified by the Supreme Court in Reekie.
[20] First, Mr Siemer has not established his impecuniosity:

• (a) the fact that the Registrar may have waived fees for the appeal is not conclusive evidence of impecuniosity;^[9]
• (b) the fact that Mr Siemer may have been granted legal aid in another proceeding is not determinative of his impecuniosity for the purpose of this appeal;
• (c) Mr Siemer’s statement that there is “no related family trust that, or relative who, may be able to provide funding” was not verified or supported by any independent evidence; and
• (d) Mr Siemer’s statement that he could only afford $200 to $300 security was similarly not supported.

[21] Second, Mr Siemer has not established that a solvent litigant would reasonably wish to prosecute this appeal. The appeal against William J’s decision is simply hopeless. Quite obviously, as Williams J held, the rules of this Court are designed to enable the Registrar and the Deputy Registrar, who are not legally qualified, to determine applications for dispensation with security for costs. The remedy for aggrieved applicants is to seek review by a Judge of the Court. That is of course what Mr Siemer has previously sought to do unsuccessfully.^[10]
[22] I am also satisfied that Mr Siemer’s appeal is vexatious.^[11]
[23] In view of the fact that as a result of the present application the previous deadline for the payment of security for costs by Mr Siemer has passed, he should be granted an extension of time under r 5(2) of the Rules to do so. I fix 27 March 2015 as the new and final date for payment.
[24] In terms of r 37(2) of the Rules, no hearing date for the appeal should be allocated until the security for costs is paid.
[25] If Mr Siemer fails to pay the security for costs by 27 March 2015, the Attorney-General may apply under r 37(1) for the appeal to be struck out.^[12]

Solicitors:
Crown Law Office, Wellington for Second Respondent

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^[1] Siemer v O’Brien [2014] NZHC 2886.

^[2] At [14]–[18].

^[3] At [19]–[34].

^[4] At [35].

^[5] Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.

^[6] Siemer v O’Brien [2015] NZSC 13. Recall of that judgment was subsequently refused in Siemer v O’Brien [2015] NZSC 23.

^[7] Siemer v O’Brien [2015] NZSC 13 at [5].

^[8] Reekie v Attorney-General, above n 5 at [35].

^[9] Reekie v Attorney-General, above n 5, at [42].

^[10] See Siemer v O’Brien, above n 1, at [3].

^[11] Siemer v Judicial Conduct Commissioner [2014] NZCA 358 at [19]–[23].

^[12] Moodie v Strachan [2014] NZCA 260 at [6]–[7] and [11]–[14].