Siemer v Registrar of the Supreme Court [2020] NZCA 360 (24 August 2020)

Last Updated: 1 September 2020

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

CA528/2019 [2020] NZCA 360

	BETWEEN	JANE CHAPMAN SIEMER Applicant
	AND	REGISTRAR OF THE SUPREME COURT Respondent

Counsel:	Applicant in Person
Judgment: (On the papers)	24 August 2020 at 3.30 pm

JUDGMENT OF COURTNEY J

REASONS

• [1] Ms Siemer has applied to review a Deputy Registrar’s decision declining her application for a fee waiver. The waiver application was made on the basis of impecuniosity and public interest. It was refused on the ground that Ms Siemer had failed to provide adequate evidence of impecuniosity and that the appeal did not raise an issue of public interest. I have concluded, however, that Ms Siemer is not entitled to seek a review of the decision because her appeal is deemed to have been abandoned.

Procedural history

• [2] It is evident that the genesis of the current proceeding is a Disputes Tribunal hearing over a dispute that Ms Siemer and her husband had with a builder. Dissatisfied with the outcome, Ms Siemer appealed unsuccessfully to the District Court.^[1] Ms Siemer also took a number of other steps, including complaining to the Ministry of Justice (MOJ). Ms Siemer was unhappy with the MOJ’s response. She applied for judicial review against the Attorney-General and the Disputes Tribunal referee in respect of the way the MOJ had dealt with the complaints.
• [3] From 31 May to 13 September 2018, Fitzgerald J issued various minutes regarding the disclosure of the Disputes Tribunal transcript in subsequent litigation.
• [4] In December 2018 Hinton J struck out the judicial review proceedings.^[2] In addition, she made the following order under s 166 of the Senior Courts Act 2016 restraining Ms Siemer from commencing or continuing proceedings relating to the Disputes Tribunal proceedings for three years:^[3]

Jane Dinsdale Siemer is prohibited from commencing or continuing, without leave, any proceeding in any Court or Tribunal, concerning or relating to Siemer v Hickson CIV-2017-044-495 and CIV-2017-044-562, including (without limitation) proceedings relating to the conduct of any judicial officer of the Disputes Tribunal, for three years.

• [5] The chronology from that point is as follows:

(a) In September 2018 Ms Siemer filed a notice of appeal in this Court in respect of two of Fitzgerald J’s minutes. She sought a waiver of the filing fee on the ground that the appeal raised matters of public interest. The Deputy Registrar refused to waive the filing fee. Ms Siemer sought a review of that decision, which Miller J declined.^[4]

(b) Ms Siemer applied for leave to appeal to the Supreme Court against Miller J’s decision. She sought a waiver of the Supreme Court filing fee. The Registrar of the Supreme Court refused to waive the fee. Ms Siemer applied to review that decision.

(c) Ellen France J dismissed the review application.^[5] Ms Siemer requested that Ellen France J’s decision be referred to the Supreme Court itself. The Registrar of the Supreme Court refused to do so.

(d) In April 2019 Ms Siemer filed an application for judicial review in the High Court in relation to the Supreme Court Registrar’s decision refusing to refer Ellen France J’s decision to the Court itself.

(e) In September 2019 the Registrar of the High Court referred the matter to Cooke J under r 5.35A of the High Court Rules 2016. The Judge’s powers in relation to a matter referred under r 5.35A are those set out at r 5.35B and include the power of the Judge, on his or her own initiative, to strike out the proceeding.^[6] Cooke J considered that the proceedings were an abuse of process and struck them out.^[7] Cooke J noted in his decision that “[i]t would appear that the underlying litigation may be related to that which is the subject of the order made by Hinton J”.^[8]

(f) On 9 October 2019 Ms Siemer filed a notice of appeal against Cooke J’s decision. Under r 43(1) of the Court of Appeal (Civil) Rules 2005 the appeal would be deemed to have been abandoned if a hearing date was not sought within 3 months of this date. Under r 37(2) a party cannot seek a hearing date until any prescribed fees have been paid.

(g) Along with her appeal Ms Siemer also applied for a waiver of fees. That application relied on the waiver of fees that had been granted in the High Court but the Deputy Registrar of the Court of Appeal requested a fresh application relevant to the current appeal.

(h) On 4 November 2019 Ms Siemer filed a fresh application for waiver of fees. The grounds advanced were impecuniosity and public interest.

(i) On 25 November 2019 the Deputy Registrar requested further information in relation to the impecuniosity ground, specifically “copies of bank statements in respect of all your bank accounts, including those held jointly, for the past three months, to show your income and expenditure” by 29 November 2019. Ms Siemer provided a copy of a single page from the bank statement of a joint bank account that covered the period 14–26 November 2019. The Deputy Registrar responded that the information was not what had been requested. Ms Siemer’s response suggests that she had not fully appreciated the nature of the information she had earlier been requested to provide. However, her response also suggested that she did not intend to provide further information; it concluded with the statement “I have no income in the period you requested”.

(j) On 4 December 2019 the Deputy Registrar wrote to Ms Siemer noting that she had not been provided with the requested financial information and that she considered that the appeal did not fall into the category of having a genuine public interest. She accordingly declined the application for fee waiver. The fee of $1,100 became payable by Thursday 23 January 2020. The Deputy Registrar advised that if the fee was not paid no further action would be taken in respect of the application and that if Ms Siemer was not satisfied with the decision she was entitled to apply for a review. Ms Siemer was however advised that an application for review needed to be made within 20 working days of being notified of the decision refusing the waiver, though Ms Siemer could apply to a Judge for an extension of that time.

(k) Ms Siemer did not file an application to review the Deputy Registrar’s declinature of her fee waiver application.

(l) Instead, on 13 December 2019 Ms Siemer filed an application under r 43(2)(a) of the Court of Appeal (Civil) Rules seeking an extension of the three-month time period allowed in r 43(1) to apply for the allocation of a hearing date and file the case on appeal. An application under r 43(2)(a) is required to be made as an interlocutory application. An interlocutory application carries a $400 filing fee and Ms Siemer was told that when the application was filed. Ms Siemer did not pay the filing fee.^[9] On 20 December 2019 she emailed the Court to say that she did not consider that a filing fee was payable because the application was being made informally under r 43(1B)(c). This was clearly not correct. First, Ms Siemer’s application was stated as being made under r 43(2)(a). Secondly r 43(1B)(c) applies only to applications to review decisions made under r 35(6) relating to security for costs. Ms Siemer’s request to have security for costs dispensed with had not yet been determined and therefore no application could have been made under r 43(1B)(c).

(m) The application under r 43(2) for an extension was not determined, which is to be expected given that no filing fee had been paid.

(n) On 16 January 2020 the s 43(1) period expired and at that point the appeal was deemed to have been abandoned.

(o) For reasons that are not clear the Deputy Registrar wrote to Ms Siemer on 29 May 2020 referring to the failure to pay the required filing fee on the appeal and advising that if the fee was not received by 15 June 2020 the matter would be referred to a Judge for strike out in accordance with r 44A of the Court of Appeal (Civil) Rules. On 10 June 2020 Ms Siemer wrote to clarify what had happened. She subsequently agreed that her email should be treated as a request to review the Deputy Registrar’s decision refusing the fee waiver out of time.

Decision

• [6] The matter has been referred to me for review of the Deputy Registrar’s decision.
• [7] In my view Ms Siemer’s appeal must be treated as having been abandoned in January 2020 because she did not seek a hearing date within three months of filing the appeal and did not obtain an extension of time to do so. The intention of r 43(1) is that an appeal is deemed abandoned after the expiry of the time specified for all purposes except a timely r 43(2) application.^[10] Although Ms Siemer filed her r 43(2) application within time her failure to pay the required filing fee means that she did not make an interlocutory application to extend time under r 43(1) .
• [8] An appeal deemed to have been abandoned cannot be revived.^[11] The appellant can make an application under r 29A to extend time for bringing a fresh appeal, though the threshold for leave is high.
• [9] The subsequent correspondence between Ms Siemer and the Deputy Registrar cannot have the effect of creating jurisdiction to seek a review of the fee waiver application.
• [10] There is a further problem in any event. As already noted, Ms Siemer has no right to file any proceeding “concerning or relating to” Siemer v Hickson without leave to do so. The phrase “concerning or relating to” is of wide ambit. Notwithstanding the increasingly tangential nature of the applications that Ms Siemer has been making, it is evident that they relate back to Fitzgerald J’s orders made in relation to the Disputes Tribunal hearing that was the subject of Siemer v Hickson. The current appeal fell within the scope of the s 166 order. Accordingly, Ms Siemer cannot take any further step without applying for leave to do so.
• [11] Notwithstanding these conclusions, for completeness, I have considered whether the decision to decline a fee waiver was correct and concluded that it was.
• [12] Under reg 5 of the Court of Appeal Fees Regulations 2001 (the Regulations) the Registrar has the power to waive fees relating to an appeal. The Regulations specify the criteria that apply. Relevantly, these are that:

(a) the applicant “would ... suffer undue financial hardship if he or she paid the fee”;^[12] or

(b) the proceeding concerns a matter of genuine public interest and is unlikely to be commenced or continued unless the fee is waived. ^[13]

• [13] Under regulation 5(4)(a), a proceeding that concerns a matter of genuine public interest is, for the purposes of the Regulations:

[A] proceeding that has been or is intended to be commenced to determine a question of law that is of significant interest to the public or to a substantial section of the public ...

• [14] Ms Siemer challenges the Deputy Registrar’s decision on both grounds. As to the first, the Deputy Registrar was entitled to request information to satisfy herself that undue hardship would result from Ms Siemer paying the fee waiver. The information that Ms Siemer provided was wholly inadequate to allow the Deputy Registrar to make that assessment. Ms Siemer challenges the refusal to waive the fee on this ground as being that “I had informed you and no-one disputed that I had no New Zealand income”. This, too, is a completely inadequate basis on which to waive a fee. The issue of financial hardship is not necessarily resolved by reference to income alone and the Deputy Registrar made no error in refusing to waive the fee on this ground.
• [15] As to the second ground, Ms Siemer complains that the Deputy Registrar did not go into the reasons for concluding that the appeal does not fall into the category of cases that concern a matter of genuine public interest.
• [16] In her application for waiver Ms Siemer described the question of law that she considered the proceeding would clarify as follows:

It is procedurally unfair for a registrar of one court to grant a fee waiver (or charge a filing fee) and then a judge acting on his own initiative prevents service and thereby forces it into another court which then demands a separate fee before the original claim is allowed to have a chance to proceed.

• [17] The basis on which fees are charged in a particular court turns on the regulations applying to that court. There is no procedural unfairness involved in a court registrar requiring payment of the fees that relate to a new filing in that court. Nor is there any procedural unfairness involved in requiring the proper fee to be paid where the appeal is against an order striking out under r 5.35B of the High Court Rules. The rule exists to ensure that the process of the High Court is not abused. A litigant who is unhappy that proceedings have been struck out as an abuse of process has a right to appeal that decision but there is no procedural unfairness involved either in the making of the decision or in the imposition of the usual fees required to be paid on the appeal. The circumstances of this case simply did not raise any question of law of significant interest to the public or a substantial section of the public.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] Siemer v Hickson [2018] NZDC 4262.

^[2] Siemer v Attorney-General [2018] NZHC 3406.

^[3] At [108].

^[4] Siemer v District Court North Shore [2018] NZCA 558.

^[5] Siemer v District Court at North Shore [2019] NZSC 19.

^[6] High Court Rules 2016, r 5.35B(2)(a).

^[7] Siemer v Registrar of the Supreme Court [2019] NZHC 2345.

^[8] At [10].

^[9] Schedule to the Court of Appeal Fees Regulations 2001.

^[10] Rabson v Transparency International New Zealand Incorporated [2016] NZCA 26 at [5].

^[11] Siemer v Stiassny [2009] NZCA 624 at [22].

^[12] Court of Appeal Fees Regulations, reg 5(3)(b)(iii).

^[13] Regulation 5(2)(b).