Siemer v Auckland High Court [2021] NZCA 194 (17 May 2021)

Last Updated: 25 May 2021

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

CA680/2020 [2021] NZCA 194

	BETWEEN	VINCENT ROSS SIEMER Appellant
	AND	AUCKLAND HIGH COURT First Respondent MATTHEW SIMON RUSSELL PALMER Second Respondent

Counsel:	Appellant in person A M Powell for First and Second Respondents
Judgment: (On the papers)	17 May 2021 at 2.30 pm

JUDGMENT OF BROWN J
(Review of Deputy Registrar’s decision)

1. The application to review the Deputy Registrar’s decision declining to dispense with security for costs is declined. Security for costs of $7,060 is payable by 15 June 2021.
2. The appellant has 15 working days to file submissions if he wishes to resist an order striking out this appeal.

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REASONS

• [1] Mr Siemer filed a proceeding in the Auckland High Court styled as an application for mandamus against the High Court and Palmer J, requesting that it be removed directly to this Court. In a judgment dated 20 November 2020 Powell J made an order striking out the proceeding as an abuse of the process of the Court.^[1]
• [2] On 24 November 2020 Mr Siemer filed a notice of appeal naming the High Court at Auckland and Palmer J as first and second respondents respectively. Security for costs was set at $14,120. Mr Siemer then applied for dispensation from security for costs. In a decision dated 3 February 2021 the Deputy Registrar dismissed the application but reduced the amount of security to the amount payable for respondents who share counsel, namely $7,060. Mr Siemer seeks a review of the decision dismissing his application.

Relevant principles

• [3] The principles applicable to dispensation from security for costs were reviewed by the Supreme Court in Reekie v Attorney General.^[2] The Court stated that the Registrar should dispense with security if of the view that it is right to require the respondent to defend the judgment under challenge without the usual protection as to costs provided by security.^[3] The Court explained:

[35] ... we consider that the discretion to dispense with security should be exercised so as to:

(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.

A reasonable and solvent litigant would not proceed with an appeal which is hopeless. Nor would a reasonable and solvent litigant proceed with an appeal where the benefits (economic or otherwise) to be obtained are outweighed by the costs (economic and otherwise) of the exercise (including the potential liability to contribute to the respondent’s costs if unsuccessful). As should be apparent from what we have just said, analysis of costs and benefits should not be confined to those which can be measured in money.

• [4] The Court also ruled that the review function of the judge in relation to security for costs is to be exercised de novo.

Relevant background

• [5] The proceeding the subject of Mr Siemer’s appeal is a sequel to an application by Mr Siemer to the High Court in Auckland in 2019 for leave to commence a judicial review proceeding. In the course of considering that application Palmer J initially explored the prospect that Mr Siemer’s intended claim might justify consideration of an order under s 166 of the Senior Courts Act 2016. However in a minute dated 28 February 2020 Palmer J concluded that there was not a sufficient basis for making such an order.
• [6] Mr Siemer filed an appeal against that minute. In a judgment dated 4 September 2020 striking out the appeal in reliance on r 44A(1)(c) of the Court of Appeal (Civil) Rules 2005 (the Rules),^[4] this Court explained:

[26] We do not accept that the observations of Palmer J either in his 25 November 2019 judgment (which is not the subject of appeal) or in his subsequent minute of 28 February 2020 constitute a judgment, decree or order. The very point of the minute was to record that Palmer J was not making, and did not intend at that time to make, an order under s 166. Mr Siemer’s complaint about the process which was followed in reaching that point does not provide the basis for an appeal to this Court.

• [7] An application by Mr Siemer for recall of that judgment was declined.^[5]
• [8] Mr Siemer then applied for leave to appeal to the Supreme Court. His application for waiver of the filing fee on the grounds of both public interest and undue financial hardship was declined. That decision was upheld on review.^[6] With reference to the public interest ground the judgment stated:

[9] The applicant in his submissions in support of the review argues that there are a number of public interest grounds of concern, but he does not confront the Court of Appeal’s conclusion that the minute against which he wished to appeal was not a judgment order or decree, and therefore did not give rise to a right of appeal. The points the applicant wishes to argue arise only because of his choice to seek to appeal against a minute that made no decision against him. It is unlikely that this situation will arise again for the obvious reason that most litigants will be alert to the fact that no right of appeal arises where no decision is made against them. Accordingly, I agree with the Deputy Registrar that no question of law that is of significant interest to the public or to a substantial section of the public would be engaged in any appeal to this Court against the Court of Appeal decision.

(Footnote omitted.)

• [9] Contemporaneously Mr Siemer filed the current proceeding in the High Court at Auckland seeking a writ of mandamus compelling Palmer J to issue a judgment on the issue of whether a civil restraint order under s 166 should be made against Mr Siemer. In the judgment under appeal Powell J drew attention to this Court’s observations above^[7] and concluded:^[8]

[7] Having set out the background it is clear the substantive matters purported to be raised by Mr Siemer in the present proceedings have already been addressed by the Court of Appeal, and that the subsequent dismissal of Mr Siemer’s application for recall by Palmer J was an inevitable result of the conclusions reached by the Court of Appeal. As a result, the present application brought by Mr Siemer, claiming as it does procedural impropriety and/or breach of natural justice on the part of Palmer J in raising the issue of whether an order pursuant to s 166 of the Senior Courts Act should be made against Mr Siemer and/or “failing” to issue a judgment, is clearly nothing more than an attempted collateral attack on the decision of the Court of Appeal. As such I am satisfied that Mr Siemer’s present application is a clear abuse of the process of this Court, both in terms of the Court’s inherent jurisdiction and/or in terms of r 5.35B of the High Court Rules 2016. The proceedings are therefore struck out. Pursuant to r 5.35B(3) Mr Siemer is entitled to appeal this decision.

The Deputy Registrar’s decision

• [10] The Deputy Registrar commenced by summarising the grounds for Mr Siemer’s application for dispensation in this way:

(a) He has never had a first instance appearance, thereby rendering moot any purpose of security as protection for the opposing party who was successful in the first instance and is therefore entitled to presumptive legal costs to defend their judgment on appeal;

(b) Powell J denied Mr Siemer access to justice by relying on a false factual premise, namely that the proceeding was an attempted collateral attack on a decision of the Court of Appeal;

(c) This factual premise is contrary to the decisions of this Court and the Supreme Court, which stated that no order was contained in Palmer J’s minute so there was no jurisdiction for an appeal of it; and

(d) To sate that judges are free not to rule in matters they unsuccessfully bring to Court would place judges above the law and may encourage abuse of human rights.

(Footnote omitted.)

• [11] Having correctly cited the relevant principles from Reekie, the Deputy Registrar noted that, unlike most applications to dispense with security for costs, Mr Siemer did not raise impecuniosity as a ground.
• [12] In concluding that the appeal has little merit the Deputy Registrar accepted the submission of counsel for the respondents that the application for an order for mandamus represented a continuation of the attempt to do that which this Court has already ruled cannot be done, namely to seek to appeal against something against which an appeal will not lie.^[9] The Deputy Registrar was not convinced that the potential benefits of the appeal would outweigh the potential costs and did not consider that a reasonable litigant would proceed with the appeal. However, as earlier noted, the amount of security was reduced to $7,060.

The application for review

• [13] Mr Siemer’s submissions in support of the review attacked the Deputy Registrar’s decision on several bases, including an alleged misapplication of Reekie, a failure to take into account the relevant parts of Reekie, the proposition that the decision is inherently contradictory and a criticism that the Deputy Registrar lacks general competency. However the primary focus of Mr Siemer’s submission concerns the merit of his proceeding seeking an order for mandamus directed to a High Court Judge.
• [14] In particular Mr Siemer submitted:
  13. The Decision at [16] relied upon submissions of the Court-respondent that are materially misleading to support imposing security for costs, parroting the uninformed view the proposed judicial review “has little or no prospect of success”. The Court-respondent misled the appeal Court and successfully altered the decision by representing, “the application for an order for mandamus represents a continuation of the attempt to do that which this Court has already ruled cannot be done”. Deceiving the Court is a serious charge the Court is compelled to deal with. The reality is this review would be unnecessary if the Decision had not expressly relied upon this lie put to the Deputy Registrar by counsel.
  14. In fairness to Court counsel, it is appropriate to allow his response to this serious allegation because case authority supports suspension or disbarment of counsel whose material misrepresentations result in fiction-based appellate court judgments.

(Footnote omitted.)

Discussion

• [15] Mr Siemer’s criticism of counsel for the respondents was unfounded. The submission made by counsel was in the following terms:
  7. The appellant may well submit that his current proceeding is not an attack on the earlier decision but rather an attempt to overcome the deficiency the Court of Appeal identified (the absence of a judgment, decree or order by the High Court) so that he may have a properly instituted appeal against it.
  8. However, the application for an order for mandamus represents a continuation of the attempt to do that which this Court has already ruled cannot be done, to seek to appeal against something against which an appeal will not lie.
• [16] That submission appropriately focused on the key point, namely that Palmer J did not make a decision which gave rise to a right of appeal by Mr Siemer. The attempt to construct a right of appeal by the vehicle of an application for mandamus directed to Palmer J to make a decision under s 166 with reference to Mr Siemer is an abuse of the procedure of the Court. In any event the High Court is not amenable to applications for judicial review or the prerogative writs.
• [17] It follows that the judgment of Powell J was correct. Mr Siemer’s attempt to appeal that decision to this Court is without merit. No reasonable solvent litigant would proceed with such an appeal. Consequently I conclude that there is no basis for granting a dispensation from security for costs.
• [18] Consistent with the analysis above, I consider that Mr Siemer’s appeal may fairly be viewed as frivolous, vexatious and an abuse of process of the Court in terms of r 44A(1)(c) of the Rules. Accordingly I give notice to Mr Siemer of the Court’s intention to consider making an order under r 44A striking out his appeal. If he wishes to resist such an order, he is to file written submissions within 15 working days of the date of this decision.

Result

• [19] The application to review the Deputy Registrar’s decision declining to dispense with security for costs is declined. Security for costs of $7,060 is payable by 15 June 2021.
• [20] The appellant has 15 working days to file submissions if he wishes to resist an order striking out this appeal.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Siemer v Auckland High Court [2020] NZHC 3072.

^[2] Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.

^[3] At [31].

^[4] Re: Siemer [2020] NZCA 393.

^[5] Re: Siemer [2020] NZCA 571.

^[6] Re: Siemer [2020] NZSC 136.

^[7] At [6] above.

^[8] Siemer v Auckland High Court, above n 1.

^[9] At [16].