Siemer v Attorney-General [2023] NZCA 620 (5 December 2023)

Last Updated: 11 December 2023

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

CA614/2022 [2023] NZCA 620

	BETWEEN	VINCENT ROSS SIEMER Appellant
	AND	ATTORNEY-GENERAL OF NEW ZEALAND Respondent

Counsel:	Appellant in person A M Powell for Respondent
Judgment: (On the papers)	5 December 2023 at 10.30 am

JUDGMENT OF BROWN J
(Recall)

1. The application for recall of Siemer v Attorney-General of New Zealand [2023] NZCA 526 is declined.

B The application for a stay is declined.
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REASONS

• [1] On 11 November 2022 the appellant filed an appeal against a judgment of Gault J,^[1] dismissing the appellant’s application for judicial review of a decision made by Downs J under r 11(7) of the Senior Courts (Access to Court Documents) Rules 2017.^[2]
• [2] An application for dispensation from the requirement to pay security for costs was declined by the Registrar. In a decision dated 27 October 2023 I declined the appellant’s application for review of the Deputy Registrar’s decision and directed that security for costs of $7,060 was payable by 24 November 2023.^[3]
• [3] The appellant sought a review of my judgment under s 49(4) of the Senior Courts Act 2016 and, in the alternative, a recall of my judgment under r 8A of the Court of Appeal (Civil) Rules 2005. As the Registry has explained to the appellant (and I now confirm), a Judge’s decision on a review of a Registrar’s decision under s 49(6) of the Senior Courts Act cannot be the subject of a further review under s 49(4), which relates only to decisions made by a single Judge acting under s 49(3).^[4]
• [4] So far as the recall request is concerned, the application sets out in considerable detail the appellant’s criticisms of the judgment, asserting (among other things) that it improperly avoided the issues, falsely labelled its contradictions as “long-established practices”, and provided no factual and virtually no legal support for its analysis or conclusions.
• [5] As the Supreme Court stated in S (SC 39/2017) v R, the general rule is that a judgment, once delivered, must stand for better or worse subject to appeal.^[5] A decision to recall will only be made in exceptional circumstances. The three categories of cases in which it has been traditionally accepted that a judgment may be recalled are:

(a) where, since the hearing, there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority;

(b) where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; or

(c) where for some other very special reason justice requires that the judgment be recalled.^[6]

• [6] Mr Powell for the respondent submits that none of the three categories for recall are relevant here. He contends that in reality the appellant is simply arguing that the decision is wrong. The appropriate vehicle for such a challenge is an appeal to the Supreme Court.
• [7] I consider that my decision on review, which was made de novo, involved an orthodox application of the relevant principles governing security for costs as stated in the Supreme Court’s decision in Reekie v Attorney-General.^[7] I agree with the submission for the respondent that no ground for recall has been established and that the proper course for a challenge to my decision is by way of appeal.
• [8] Consequently the application for recall of my judgment is declined.
• [9] The appellant also applies for a stay of my direction requiring the payment of security for costs by 24 November 2023,^[8] reasoning that if one is not ordered then an appeal to the Supreme Court will be rendered nugatory. I agree with Mr Powell’s submission that no stay is necessary to achieve the ends of justice. The appellant can request this Court to extend the time for lodging security for costs to a date that will accommodate the exercise of his right to seek leave to appeal, and further again in the event that leave to appeal is granted by the Supreme Court.

Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent

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^[1] Siemer v Attorney-General of New Zealand [2022] NZHC 2643.

^[2] Rafiq v Whata J HC Auckland CIV-2019-404-934, 24 October 2019.

^[3] Siemer v Attorney-General of New Zealand [2023] NZCA 526 [Review decision].

^[4] de Vries v Bartercard Exchange Ltd [2017] NZSC 186 at [2] and [5]; and Reekie v Attorney‑General [2014] NZSC 63, [2014] 1 NZLR 737 at [26].

^[5] S (SC 39/2017) v R [2022] NZSC 7 at [3].

^[6] Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

^[7] Reekie v Attorney-General, above n 4.

^[8] Review decision, above n 3, at [21].