Siemer v Legal Complaints Review Officer [2024] NZCA 219 (11 March 2024)

Last Updated: 17 June 2024

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

CA226/2022 [2024] NZCA 219

	BETWEEN	VINCENT ROSS SIEMER Appellant
	AND	LEGAL COMPLAINTS REVIEW OFFICER First Respondent CLAYTON LUKE Second Respondent JANE SIEMER Third Respondent

Hearing:	11 March 2024
Court:	Katz, Whata and Gault JJ
Counsel:	Appellant in person No appearance for Respondents J B Orpin-Dowell as counsel to assist the Court
Judgment:	11 March 2024
Reasons:	12 June 2024

REASONS JUDGMENT OF THE COURT

1. Mr Siemer was directed (on 11 March 2024) to reapply to the High Court for leave to appeal the costs decision in Siemer v Legal Complaints Review Officer [2022] NZHC 908.
2. We made no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Whata J)

• [1] This matter commenced as an appeal by Mr Siemer against refusal by the High Court to make a costs order for payment of travel disbursements incurred to attend a formal proof hearing that had to be adjourned.^[1] Shortly before the scheduled hearing, the Court identified a possible jurisdictional issue, namely whether leave was required to appeal, given that the costs order related to the hearing of an interlocutory matter. The hearing was adjourned and leave was granted to file further submissions on this issue. Mr Siemer did so. The Court appointed counsel to assist given the potential wider significance of the issue.^[2]
• [2] Following the filing of submissions by counsel to assist, and additional submissions from Mr Siemer, a further hearing was held before a new panel of the Court.^[3] We determined at that hearing, on 11 March 2024, that leave of the High Court was required. This judgment records our reasons for that decision.
• [3] Mr Siemer, understandably, had a strong preference to not have to return to Court for a third hearing at a later date. Whata J accordingly heard Mr Siemer’s leave application immediately after the Court had determined that leave was required, sitting as a High Court Judge. He granted leave, with reasons to follow. The panel then reconvened to hear and determine Mr Siemer’s substantive costs appeal. The decision in respect of that appeal is being delivered contemporaneously with this decision.^[4]

Background

• [4] Mr Siemer commenced a judicial review proceeding relating to the decision of the first respondent, the Legal Complaints Review Officer (the LCRO), striking out his application for a review of the determination made by the Standards Committee of the New Zealand Law Society in relation to complaints made by him against the second respondent, Mr Luke, under the Lawyers and Conveyancers Act 2006.
• [5] For reasons that are unnecessary to explore here, Mr Luke did not file a statement of defence within time. On 4 November 2021, Mr Siemer applied for a formal proof hearing. He claimed that, having failed to file a statement of defence, Mr Luke had forfeited any right to defend. There then followed another round of procedural matters but in the result, the High Court, in a minute of Woolford J dated 19 November 2021, resolved that Mr Siemer’s application for formal proof should proceed. A hearing date was allocated.
• [6] Mr Luke then filed an application for leave to file a statement of defence out of time (the leave application). The High Court directed that the leave application be heard at the same time as the application for formal proof. Mr Siemer attended the hearing with counsel, Mr Thwaite, on the basis that counsel would represent him in relation to the leave application (only) and Mr Siemer would argue the formal proof application.
• [7] In terms of sequencing, it was necessary for the leave application to be heard and determined first, because if leave was granted there would no longer be any basis for judgment by formal proof. Having heard from the parties on the leave application, the Judge reserved her decision. As a result, the formal proof hearing could not proceed and had to be deferred.
• [8] In her decision on the leave application, delivered a week later, Harland J found that the matters raised by Mr Luke did not amount to a substantial defence to the claim for judicial review and that the delay in filing a statement of defence was not reasonably explained.^[5] The leave application was therefore dismissed.
• [9] As the successful party, Mr Siemer applied for an award of legal costs in respect of the leave application on a band 2B basis together with a 50 per cent uplift. Mr Luke agreed that costs on a category 2 basis should be allowed in respect of the leave application but submitted that they should be calculated on a band A not a band B basis. Harland J awarded costs on a band 2B basis.^[6] In terms of uplift, the Court concluded this was not a case where Mr Luke’s application was meritless or pursuant to an unnecessary step, and on that basis, the application for uplift was rejected.
• [10] In respect of the adjourned formal proof application, Mr Siemer could not seek an award of legal costs, as he was self-represented in respect of that application. He did, however, seek a disbursement in respect of his “wasted” personal travel costs on the basis that Mr Luke’s belated leave application had necessitated an adjournment of the formal proof hearing. Mr Siemer sought a disbursement payment of $70.56 to cover his mileage costs for travelling to and from Court. The Judge noted that Mr Luke did not address the travel reimbursement claim. The Judge nevertheless rejected Mr Siemer’s application for a disbursement payment to cover his travel expenses:^[7]

This disbursement is claimed because Mr Siemer would have represented himself at the formal proof hearing, however, it did not proceed because I reserved my judgment in respect of the leave application. The decision to reserve my judgment rather than proceed with the formal proof hearing was not something Mr Luke could have anticipated, nor was he responsible for my decision to reserve judgment. I do not consider it would be fair to require Mr Luke to reimburse Mr Siemer for his travel costs.

Appeal process

• [11] Mr Siemer was not content with the disbursements decision and sought leave to appeal in the High Court. The matter was listed for mention on the Duty Judge list. Downs J issued a minute dated 8 June 2022 removing the matter from the list on the basis that Mr Siemer did not require the High Court’s permission to bring the proposed appeal. The Judge stated that:

An appeal in relation to costs is not an appeal of an interlocutory ruling, for which permission is required.

• [12] Mr Siemer then filed his appeal in this Court. This Court was not aware at the time of Downs J’s minute. Shortly before the scheduled appeal hearing, this Court issued a minute identifying that there may be a jurisdictional issue. The minute noted that this Court only has jurisdiction pursuant to s 56 of the Senior Courts Act 2016 (the Act) which introduced a leave requirement from the High Court for interlocutory appeals. The minute queried whether leave was required to appeal the costs decision and noted that it did not appear from the file that leave had been granted. Submissions were sought from Mr Siemer on this preliminary jurisdictional issue, noting that if more time was needed the matter could be adjourned.
• [13] Mr Siemer made oral submissions regarding the jurisdictional issue at the appeal hearing several days later. The matter was then adjourned to give Mr Siemer the opportunity to file further written submissions on the issue. In those submissions, Mr Siemer suggested that counsel be appointed to assist the Court, given that the respondents had been granted leave not to appear in the appeal. Mr Orpin‑Dowell was subsequently appointed in that role and filed submissions. Mr Siemer advised that he did not wish to reply.
• [14] Not long afterwards, one of the members of the original Court of Appeal panel, Davison J, retired. An indication was then sought from Mr Siemer as to whether he was content for the matter to be resolved by the remaining two panel members or whether he would prefer that the matter be reheard. Mr Siemer requested a full panel and a further hearing. He also filed a further set of comprehensive submissions on the jurisdictional issue.

Jurisdictional issue

• [15] The issue we must determine is whether leave is required, under s 56(3) of the Act, to appeal a decision determining costs issues arising out of an interlocutory decision, in circumstances where leave to appeal the interlocutory decision would be required.
• [16] Mr Orpin-Dowell filed comprehensive and helpful submissions. He identified three possible answers to the issue before the Court:

(a) Costs orders are appealable on the same basis as the underlying decision to which they relate.

(b) Leave is required to appeal all costs orders whether they relate to an interlocutory determination or the substantive determination of the proceeding.

(c) All costs orders, whether they relate to an interlocutory determination or the substantive determination of the proceeding, are appealable as of right.

• [17] Mr Siemer’s written submissions largely accord with (b) above. In oral argument, however, Mr Siemer’s position was somewhat more nuanced. He noted that differing views appear to have been expressed on the issue in the High Court and acknowledged that arguments can be made both ways as to whether leave is required to appeal costs decisions relating to interlocutory matters.
• [18] Mr Orpin-Dowell submitted that the correct answer is (a) above, namely that costs orders are appealable on the same basis as the underlying decision to which they relate. We accept that submission, for the following reasons.
• [19] Section 56 of the Act relevantly states:^[8]

(1) The Court of Appeal may hear and determine appeals—

(a) from a judgment, decree, or order of the High Court:

(b) under the Criminal Procedure Act 2011:

(c) from any court or tribunal under any other Act that confers on the Court of Appeal jurisdiction and power to hear and determine an appeal.

(2) Subsection (1) is subject to subsections (3) and (5) and to rules made under section 148.

(3) No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.

(4) Any party to any proceedings may appeal without leave to the Court of Appeal against any order or decision of the High Court—

(a) striking out or dismissing the whole or part of a proceeding, claim, or defence; or

(b) granting summary judgment.

...

• [20] An interlocutory application is defined in s 4 of the Act as:

Interlocutory application—

(a) means any application to the High Court in any civil proceedings or criminal proceedings, or intended civil proceedings or intended criminal proceedings, for—

(i) an order or a direction relating to a matter of procedure; or

(ii) in the case of civil proceedings, for some relief ancillary to that claimed in a pleading; and

(b) includes an application to review an order made, or a direction given, on any application to which paragraph (a) applies.

• [21] Self-evidently, as Mr Orpin-Dowell submitted, an appeal against an order “made on” an application within the above definition requires leave unless it falls into one of the exceptions listed at s 56(4) (which are not engaged on the present facts).
• [22] Significantly, the introduction of a leave requirement for interlocutory appeals, marked an important change in legislative policy. As this Court explained in Ngai Te Hapu Inc v Bay of Plenty Regional Council:^[9]

[15] In Siemer v Heron, the Supreme Court held that s 66 of the Judicature Act 1908 provided an appeal as of right against interlocutory decisions of all kinds made in the High Court unless the Judicature Act or a rule or order made under that Act created a restriction. There is no doubt that s 56(3) was intended to reduce the volume of appeals to this Court from interlocutory decisions in the High Court. As the Explanatory Note to s 56 (then cl 57) of the Senior Courts Act (then the Judicature Modernisation Bill 2013) stated:

This clause changes the effect of section 66 in so far as it applies to appeals against interlocutory orders. Appeals against interlocutory orders of the High Court will require leave, just like appeals under s 24G of the [Judicature Act] (appeals from an interlocutory decision of the High Court in respect of any proceeding entered on a commercial list).

[16] The principles applicable to applications to this Court under s 24G of the Judicature Act were explained in Meates v Taylor [Leave]:

A party seeking this Court’s leave to appeal under s 24G, leave having been refused by the High Court, has a high threshold to cross. The Commercial List is designed to secure the expeditious completion of the interlocutory stages of a case, and so minimise delays in its ultimate disposition. The ready availability of a right of appeal can frustrate that objective, hence appeal is not of right but by leave. And leave will not be granted as a matter of course, but only where the particular circumstances clearly warrant incurring the further delay that will be involved. These cannot be categorised. But as a generalisation it can be said that error of fact or law is not enough; the case must be such as to create if not injustice at least real detriment (the expression used by Barker J in Jagwar Holdings Ltd v Fullers Corp Ltd (1989) 3 PRNZ 282 , 284) if not corrected; or it may be as to an important question of law; or it may touch upon a matter of general or public importance.

• [23] It is our view that costs decisions on interlocutory applications are subject to s 56(3). To hold otherwise would cut across the evident purpose of s 56. But it is unnecessary to rely on the clear words of s 56 alone. The High Court costs regime makes special provision for costs on interlocutory applications. More specifically, r 14.8 of the High Court Rules 2016 (the Rules) states:

(1) Costs on an opposed interlocutory application, unless there are special reasons to the contrary,—

(a) must be fixed in accordance with these rules when the application is determined; and

(b) become payable when they are fixed.

(2) Despite subclause (1), the court may reverse, discharge, or vary an order for costs on an interlocutory application if satisfied subsequently that the original order should not have been made.

(3) This rule does not apply to an application for summary judgment.

• [24] This rule emphasises two points. First, costs are made “on” applications. Second, costs on interlocutory applications are presumptively to be determined in advance of and separately from any substantive determination of a proceeding. Plainly then, a bifurcated approach to costs is anticipated, one dealing with costs on interlocutory applications and one for costs on substantive matters. It logically follows that any costs order on an interlocutory application requires leave to appeal pursuant to s 56(3).
• [25] We are not persuaded by the alternative interpretation which appeared to be favoured by Mr Siemer, namely that all applications for costs (including in relation to substantive matters such as trials) are interlocutory applications and therefore always subject to s 56(3). In Uttinger v Bay City New Zealand Ltd the Court considered the effect of s 24G of the Judicature Act 1908 in relation to a costs award on a proceeding that had been discontinued.^[10] Section 24G stated:

(1) No appeal shall lie from an interlocutory decision of the High Court in respect of any proceeding entered on a commercial list unless leave to appeal to the Court of Appeal is given by the High Court on application made within 7 days of the decision being given or within such further time as the High Court may allow.

(2) If the High Court refuses leave to appeal from any such interlocutory decision, the Court of Appeal may grant that leave on application made to the Court of Appeal within 21 days of the refusal of leave by the High Court.

• [26] The Court held that:^[11]

[O]nce the discontinuance was filed in this case, the proceeding was at an end. In no sense therefore can any subsequent costs decision be described as an interlocutory, as against a final, decision.

• [27] This is consistent with our view that whether a costs order is interlocutory or not will depend on whether the underlying decision is interlocutory.
• [28] Finally, costs are invariably pleaded in the prayer for relief in a statement of claim or as an order sought on an interlocutory application and then, as noted above, awarded by reference to whether they relate to that prayer for relief or interlocutory application. The Rules make this distinction too. Rule 14.2 of the Rules states:
  • 14.2 Principles applying to determination of costs

(1) The following general principles apply to the determination of costs:

(a) the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds:

...

• [29] Accordingly, whether leave to appeal is required in relation to a costs decision will depend on the underlying nature of the application to which the decision relates. In the result, costs on interlocutory applications require leave unless excluded by s 56(4), while costs decisions on applications that are not interlocutory applications, do not require leave.
• [30] We acknowledge Mr Siemer’s concern that the law on the right of appeal should not be ambiguous or case by case, and that an approach based on differentiation between interlocutory and substantive applications (or decisions) could produce anomalous results.
• [31] We make three brief points in response. First, the words used in s 56(3) must be held to mean what they say.^[12] Orders “made on” interlocutory applications require leave as a matter of clear statutory policy. Second, by specifying the types of interlocutory applications that are exempted from the scope of s 56(3) in subs (4), it is now clear that leave must be sought on orders made on all other types of interlocutory application. Third, the principles for granting leave are sufficiently flexible to avoid unfairness to litigants whose rights have been finally determined and in circumstances where leave will not cause further delay to the substantive proceedings.^[13] As stated in Jindal v Liquidation Management Ltd, the ultimate question is whether the interests of justice are served by granting leave.^[14] In practical terms, if it appears to be seriously arguable that unfairness or injustice may arise if leave is not granted to appeal an interlocutory costs decision, it is likely that leave will be granted.
• [32] Overall, therefore, we are satisfied that leave must be sought in relation to any costs order made on an interlocutory application, save those expressly exempted by s 56(4) of the Act.

Mr Siemer’s appeal required leave

• [33] Mr Siemer’s application for travel disbursements was made in the context of the leave application and also (more specifically) Mr Siemer’s interlocutory application for formal proof. Mr Siemer sought to recover his wasted travel expenses arising from the adjournment of the hearing of the formal proof application as a result of Mr Luke filing the leave application. Mr Siemer put it this way in his submissions to us:^[15]
  4. That there was one clear winner and one clear loser in this High Court proceeding is not in dispute. In losing counsel’s submissions to Harland J on costs liability, counsel stated:

“MAY IT PLEASE THE COURT:

1. The second respondent [Mr Luke] accepts that costs are due to the applicant as the successful party to the application. However, he takes issue with the sum claimed in the applicant’s memorandum, dated 25 March 2022.”
5. At no time did the second respondent take issue with the travel disbursement claimed for the hearing. Further, attendance (travel) was a necessary expense because the hearing was expressly set for formal proof that required the Appellant’s appearance. Formal proof did not proceed because the fixture was hijacked by the second respondent’s year-late and unsuccessful application for leave to oppose.

[34] Given that the application for disbursements was made in relation to a procedural step (adjournment) in the formal proof application (an interlocutory application), it followed that Mr Siemer was required to obtain leave to appeal the refusal by the High Court to make such an award.

• [35] As noted above, following our determination that leave was required (with written reasons to follow), Whata J heard and determined Mr Siemer’s application for leave. Leave was granted, with reasons to follow.^[16]

Result

• [36] Mr Siemer was directed (on 11 March 2024) to reapply to the High Court for leave to appeal the costs decision in Siemer v Legal Complaints Review Officer [2022] NZHC 908.
• [37] We made no order as to costs.

---

^[1] Siemer v Legal Complaints Review Officer [2022] NZHC 908 [costs judgment].

^[2] The first respondent was granted leave not to participate in this appeal, and did not do so. The second and third respondents also did not participate.

^[3] The original panel consisted of Katz, Whata and Davison JJ. Davison J had retired since the first hearing was held and so was replaced with Gault J.

^[4] Siemer v Legal Complaints Review Officer [2024] NZCA 220.

^[5] Siemer v Legal Complaints Review Officer [2022] NZHC 440 at [50]–[53].

^[6] Costs judgment, above n 1, at [12].

^[7] At [28].

^[8] Emphasis added.

^[9] Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291, citing Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309; and Meates v Taylor [Leave] (1992) 5 PRNZ 524 (CA) (footnotes omitted).

^[10] Uttinger v Bay City New Zealand Limited [2008] NZCA 330, (2008) 19 PRNZ 54.

^[11] At [10].

^[12] The phrase “[t]he words [used] must be held to mean what they say” was used by the Supreme Court when explaining the scope of s 66 of the Judicature Act 1908 in Siemer v Heron, above n 9, at [31].

^[13] See discussion in McNaughton v Miller [2022] NZCA 273; and Power v White [2022] NZCA 116.

^[14] Jindal v Liquidation Management Ltd [2023] NZCA 413 at [18].

^[15] Footnotes omitted.

^[16] Siemer v Legal Complaints Review Officer [2024] NZHC 808.