Siemer v Complete Construction Ltd [2020] NZCA 350 (14 August 2020)

Last Updated: 18 August 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA556/2019 [2020] NZCA 350

	BETWEEN	VINCENT ROSS SIEMER Appellant
	AND	COMPLETE CONSTRUCTION LTD Respondent

Counsel:	Appellant in person J M Skinner and E W Davies for Respondent
Judgment: (On the papers)	14 August 2020 at 10 am

JUDGMENT OF CLIFFORD J
(Review of Deputy Registrar’s Decision)

The application for review of the Deputy Registrar’s decisions is granted.
____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

• [1] On 11 October 2019 Mr Siemer, understood to be a banned litigant at that time under the now repealed s 88B of the Judicature Act 1908, was granted leave by Woolford J^[1] to appeal against a decision of Associate Judge Smith dated 12 September 2019.^[2] In that judgment the Associate Judge concluded that, as a banned litigant, Mr Siemer required leave of the Court to file a notice of opposition to bankruptcy proceedings, that action constituted the commencement of proceedings.^[3]
• [2] Woolford J granted Mr Siemer leave to appeal that decision in the following terms:^[4]

[19] I am satisfied that this is one of the rare cases where such leave should be granted as it raises a novel point about the characterisation of an application to set aside a bankruptcy notice by a banned litigant. The bankruptcy notice told Mr Siemer that if he had a counterclaim he must, within 10 working days, apply to the High Court supported by affidavit. Is a banned litigant reliant on the leave of a High Court Judge to defend a bankruptcy notice?

[20] I accordingly grant leave to Mr Siemer to appeal against the decision of Associate Judge Smith dated 12 September 2019 to the Court of Appeal on the following three grounds:

(a) Was leave of the High Court required for Mr Siemer to apply to set aside the bankruptcy notice served on him by Complete Construction Limited on 25 March 2019, as determined by Associate Judge Smith in his minute dated 7 May 2019 and confirmed in his judgment dated 12 September 2019?

(b) If leave of the High Court was required, what consideration, if any, should be given to the fact that Mr Siemer was “merely responding to a step taken by the Judgment Creditor” as described by Associate Judge Smith in his minute dated 2 May 2019?

(c) Was it appropriate to award costs against Mr Siemer for the hearing on 2 September 2019, or at all?

• [3] Mr Siemer filed his notice of appeal on 16 October 2019. In doing so, Mr Siemer applied for a waiver of the applicable filing fee of $1,100. Mr Siemer subsequently applied for dispensation to provide the, standard, security for costs on an appeal of $7,060. By letters dated 13 November 2019 and 28 January 2020 respectively the Registrar declined both applications.
• [4] Mr Siemer now applies to a Judge of this Court for the review of those decisions of the Registrar.^[5]

The Registrar’s decisions

• [5] Regulation 5 of the Court of Appeal Fees Regulations 2001 allows the Registrar to waive the requirement to pay fees, including filing fees, on the basis that the applicant is unable to pay the fee or that the proceeding concerns a matter of genuine public interest and is unlikely to be commenced or continued unless the fee is waived. An applicant not in receipt of legal aid is unable to pay a fee if he or she would otherwise suffer undue financial hardship if they paid the fee. A proceeding concerns a matter of genuine public interest where it has been commenced to determine a question of law that is of significant interest to the public or to a substantial section of the public. In applying for the waiver of filing fees Mr Siemer relied on both grounds.
• [6] The Registrar considered she was unable to determine whether Mr Siemer was unable to pay the fee, because of his failure to provide relevant financial information. As to whether Mr Siemer’s appeal concerned a matter of genuine public interest, the Registrar acknowledged the grounds on which Woolford J had granted leave. However, she considered the appeal was not of significant interest to the public or to a substantial section of the public, only being of interest to banned litigants.
• [7] The discretion to dispense with security for costs is described in the well‑known principles articulated in Reekie v Attorney-General.^[6] In particular discretion should be exercised so as to “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”.^[7]
• [8] As had been the case with respect to Mr Siemer’s fee waiver application, the Registrar noted the lack of financial details Mr Siemer had provided: on that basis she was unable to conclude Mr Siemer had established his impecuniosity. Whilst the appeal had some merit, and its potential benefits to Mr Siemer were likely to outweigh potential legal costs, the public interest was again limited by reason of the small number of persons who were banned litigants at any one time and who were, therefore, directly interested.

Analysis

• [9] Unlike the Registrar, I am satisfied that the “public interest” criterion for both the application to waive the filing fee and to dispense with security for costs is met.
• [10] As Woolford J noted, the significance of a banned litigant order for a person the subject of bankruptcy proceedings, who is required to respond to those proceedings at risk of their bankruptcy, is a “novel” issue.^[8] On this basis, it can be considered a matter of genuine public interest. Whilst a decision on the point may only directly affect existing or future banned litigants, there is a broader significance than that. The substantive grounds and processes pursuant to which the Court may debar a person from commencing proceedings without leave engage important rights and values. Most specifically, those rights and values include the right to justice affirmed by s 27 of the New Zealand Bill of Rights Act 1990. Hence the broader public interest in the question.
• [11] Whilst impecuniosity is generally a necessary requirement for a successful application for waiver of the requirement to pay security, the case of Banks v Ports of Auckland Ltd demonstrates that security may be dispensed with in a case of public importance even though the appellant is not impecunious.^[9] On that basis I consider security for costs should be dispensed, and grant Mr Siemer’s review of the Registrar’s decision on that point.
• [12] Turning to the question of the fees waiver, I note Mr Siemer has recently been granted a fees waiver for an appeal which raises directly the question of whether or not he was a banned litigant at the relevant time. Moreover, there is recent, directly conflicting, authority from the High Court at Auckland on that point. In light of those considerations, I consider that a waiver of fees is also appropriate.
• [13] I therefore allow Mr Siemer’s application for review of the Deputy Registrar’s decision accordingly.
• [14] As noted, the question of whether Mr Siemer was in fact a banned litigant at the relevant time for the purposes of this appeal is under direct consideration in another proceeding, CA72/2020. If this Court determines in that appeal Mr Siemer was not a banned litigant at the relevant time, then of necessity this appeal would be allowed. Consideration should, therefore, be given to coordinate the two proceedings.
• [15] At the same time, Mr Siemer has applied to vary the grounds of appeal set by Woolford J. The respondent opposes. As I understand it, there is a similar application in the other proceeding concerning Mr Siemer’s banned litigant status. Again, consideration should be given to those applications being dealt with in a coordinated manner.

Solicitors:
Skinners Law, Auckland for Respondent

---

^[1] Complete Construction Ltd v Siemer HC Auckland CIV-2019-404-423 [Leave decision].

^[2] Complete Construction Ltd v Siemer [2019] NZHC 2273.

^[3] That is a very simple summary of a complex procedural background, involving not only the Associate Judge’s decision but that of other judicial officers as well.

^[4] Leave decision, above n 1.

^[5] Court of Appeal (Civil) Rules 2005, r 5A(3).

^[6] Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.

^[7] At [35].

^[8] Leave decision, above n 1, at [19].

^[9] Banks v Ports of Auckland Ltd [2015] NZCA 150, (2015) 22 PRNZ 461.