Siemer v Heron [2012] NZHC 2073 (16 August 2012)

Last Updated: 3 September 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-004128 [2012] NZHC 2073

BETWEEN VINCENT ROSS SIEMER Appellant

AND MICHAEL RICHARD HERON First Respondent

AND RUSSELL MCVEAGH Second Respondent

AND FORCE 1 SECURITY LIMITED Third Respondent

AND SIONE TANAKI Fourth Respondent

AND PIO SAMI

Fifth Respondent

Hearing: (On the papers) Counsel: Appellant in Person

S Elliott for the First and Second Respondents

No Appearance for the Third to Fifth Respondents

Judgment: 16 August 2012

_{[RESERVED] JUDGMENT OF WYLIE J}

This judgment was delivered by Justice Wylie

On 16 August 2012 at 12.00 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Distribution:

V R Siemer, 27 Clansman Terrace, Gulf Harbour

T Clarke: [e-mail]

P Wicks: [e-mail]

SIEMER V HERON & ORS HC AK CIV 2012-404-004128 [16 August 2012]

Introduction

[1] Mr Siemer has appealed a decision given by Judge Bouchier in the District Court. The respondents seek that security for costs should be ordered. Mr Siemer resists that suggestion.

[2] I refer to my minute of 31 July 2012. A memorandum and affidavit have now been filed by Mr Siemer. Memoranda have also been filed on behalf of the first and second respondents, and on behalf of the third, fourth and fifth respondents.

[3] All parties have agreed that I should deal with the issue of security on the papers.

Mr Siemer’s Position

[4] Mr Siemer, in his memorandum, referred to an earlier minute issued by the Supreme Court.[1] He also refers to a judgment of Keane J in this Court.[2] Mr Siemer noted that there is no standard financial form required to qualify for a dispensation from security for costs, and that the rules offer no guidance in this regard. He submitted that I have extensive evidence of his financial position, that the appeal is bona fide, and that the issue of security is simply a “blocking tactic” to insulate the

respondents from a valid claim. Mr Siemer made a number of comments about the first respondent, Mr Heron, and the position that he now holds as Solicitor-General. Those comments were manifestly inappropriate and I have ignored them.

[5] In his affidavit, Mr Siemer asserted that he is impecunious, and noted that the Registrar has waived the filing fee in respect of his appeal. He confirmed that he has not applied for legal aid in relation to the appeal, that he is currently unemployed, but that he receives approximately $80 per week net before tax from part ownership of a rental property. He also stated that he is assisted with his living expenses by relatives as required. He referred to his bank account with KiwiBank and annexed a

_{copy of a recent bank statement, which showed a balance of $39.93. He asserted}

that any security ordered will prevent his appeal proceeding. He also asserted that the appeal has merit, largely because Judge Bouchier struck out his appeal after a relatively brief hearing.

The Respondents’ Position

[6] Mr Elliott, on behalf of the first and second respondents, referred to r 20.13(2) of the High Court Rules and to s 74 of the District Courts Act 1947. He noted that the starting point is that all appellants, other than those who are legally aided, are normally required to give security. He also noted that Mr Siemer is not legally aided. He submitted that there are no special circumstances in the present case sufficient to justify a departure from the norm. He discussed where “special circumstances” might exist. He noted the matters relied on by Mr Siemer. He recorded that this matter has a long history, and that the appeal is one of a number of proceedings brought by Mr Siemer against the respondents, all arising out of the same underlying facts. He asserted that Mr Siemer’s conduct of the litigation to date has already exposed the respondents to significant costs. He also asserted that the respondents have previously been awarded costs against Mr Siemer, but that to date, those costs have not been paid.

[7] Mr Elliot then argued that the appeal does not raise any matter of great importance or of an exceptional nature, and that it does not involve a novel or important point of law. He submitted that there is no wider public interest in the appeal proceeding and that, in any event, the strength of Mr Siemer’s case is weak. He submitted that Judge Bouchier’s decision was robust and reached in accordance with settled legal principles. He asserted that the factual findings made by the Judge as to the similarity of the two proceedings are beyond question. Mr Elliott also noted that Mr Siemer, in his affidavit, simply made bare claims that he is impecunious, and that his affidavit did not comprise a full and complete account of his assets and liabilities, income and expenditure. He noted that Mr Siemer has advised that he receives rental income of approximately $80 per week, but that there is no record of those deposits appearing in his bank statement. In relation to Mr Siemer’s claim that justice will be denied were security to be fixed, Mr Elliot

noted the procedural history of the case, and submitted that that risk is outweighed

by the respondents’ right not to be subject to ongoing frivolous and costly appeals.

[8] Mr Wicks, on behalf of the third, fourth and fifth respondents, adopted the submissions made by Mr Elliott on behalf of the first and second respondents.

Analysis

[9] As I understand it, in 2008 Mr Siemer brought an action in the District Court seeking damages from Russell McVeagh, one of its then partners, Mr Heron, Force 1

Security Limited and two of its employees, Mr Tanaki and Mr Sami. Mr Siemer alleged an assault, and asserted that each of the identified respondents was actually or vicariously liable.

[10] On 6 November 2008, Mr Siemer was adjudicated bankrupt. The Official Assignee accepted that the claim is personal to him, and that it is not precluded by his bankruptcy.

[11] On 11 November 2008, Judge Joyce QC ordered Mr Siemer to pay into Court

$20,000 by way of security for costs. He stayed Mr Siemer’s claim until that

payment was made.

[12] Mr Siemer appealed Judge Joyce’s decision to this Court. On 27 March

2009, he was ordered to pay security in the sum of $1,880 on the appeal. That date was subsequently extended, but Mr Siemer did not comply with the order. The result was that under s 74(2) of the District Courts Act 1947, Mr Siemer’s appeal was deemed to have been abandoned.

[13] Mr Siemer sought leave in this Court to appeal the order made to the Court of Appeal. Leave was declined. As I understand it, a further application for leave was made to the Supreme Court. I presume that that application was also declined.

[14] On 22 December 2010, Judge Harvey declined an application that Mr Siemer had by then made in the District Court, seeking to rescind or vary the security for

costs earlier ordered by Judge Joyce. Inter alia, Judge Harvey concluded, relying on the record in other cases in which Mr and Mrs Siemer were parties, that Mr Siemer had effectively elected to be adjudicated bankrupt. He considered that Mr Siemer and his wife had shifted assets offshore to avoid exposure to claims in New Zealand, and opined that if Mr Siemer was unable to meet the costs fixed by way of security, that was his choice. He considered that although Mr Siemer was bankrupt, there was no evidence that he was impecunious.

[15] Mr Siemer then brought a second appeal to this Court, contending that on the review Judge Harvey had erred in fact and that he had discounted evidence that he was impecunious.

[16] At the first case management conference in relation to this second appeal, the issue of security for costs on the appeal was raised. Keane J directed Mr Siemer to pay security in the sum of $940 on behalf of the first and second respondents, and

$940 on behalf of the third, fourth and fifth respondents.

[17] Mr Siemer then sought leave to appeal Keane J’s decision to the Court of Appeal, and as I understand it, subsequently to the Supreme Court. Again, I assume that those applications were unsuccessful.

[18] Mr Siemer then sought a further review of the District Court order fixing security for costs. There was then an application for variation of the security order in June 2011.

[19] Mr Siemer then commenced a second action, CIV 2011-004-2079, in the District Court on 28 September 2011. Judge Bouchier’s decision the subject of the present appeal was made in these proceedings. Although there is no copy of Judge Bouchier’s decision on the file, as I understand Mr Siemer’s notice of appeal, the Judge struck out Mr Siemer’s second action. It appears that she concluded that his claim was a deliberate attempt to circumvent the earlier security for costs order, and that it was made without foundation.

[20] Mr Siemer now seeks to appeal that decision to this Court.

Analysis

[21] The starting point is r 20.13 of the High Court Rules. Relevantly, it provides as follows:

20.13 Security for appeal

(1) This rule applies to an appeal other than an appeal for which the appellant has been granted legal aid under the Legal Services Act

2000.

(2) The Judge must fix security for costs at the case management conference relating to the appeal, unless the Judge considers that in the interests of justice no security is required.

(3) The amount of security must be fixed in accordance with the following formula, unless the Judge otherwise directs:

a/2 x b

where—

1. is the daily recovery rate for the proceeding as classified by the Judge under rule 14.4; and
   
2. is the number of half days estimated by the Judge as the time required for the hearing.
   

(4) Security must be paid to the Registrar at the registry of the court no later than 10 working days after the case management conference, unless the Judge otherwise directs.

[22] Here, it is common ground that Mr Siemer has not been granted legal aid.

[23] Rule 20.13(2) is expressed in mandatory terms. The Court must fix security, unless it considers that, in the interests of justice, no security is required. Security is the norm, and special circumstances are required to justify a departure from that norm.

[24] There are no special circumstances that bear on the interests of justice in the present case. The issues which Mr Siemer seeks to raise have already been the subject of proceedings. Mr Siemer refused to pay security in the context of those proceedings. As a result, the proceedings were deemed to be abandoned by operation of s 74(2) of the District Courts Act.

[25] Mr Siemer was subsequently adjudicated bankrupt; his bankruptcy has now expired, and he is no longer a bankrupt. He now seeks to start his proceedings afresh. Mr Siemer’s affidavit as to his means is notably lacking in detail. It contains no details of his assets and liabilities and it throws up more questions than it answers. For example, what is the position regarding the rental property and the rental payments that Mr Siemer refers to in his affidavit? In this regard, I note the observations I have recorded above which were made by Judge Joyce in the context

of the earlier proceedings and which are recorded in the decision of Keane J.[3] It is

notable that Mr Siemer does not deal with these issues in his affidavit.

[26] In any event, impecuniosity by itself does not justify a waiver, although it may be a reason to reduce the quantum of security.[4]

[27] The Court may be prepared to grant a waiver to an impecunious litigant if the appeal is justified on its merits and if the litigant presents an arguable case.[5]

[28] I do not have a copy of Judge Bouchier’s decision, and it is therefore difficult to comment in any considered way on her reasoning. From the limited background which I have gleaned and set out above, it is my preliminary observation that the prospects of the appeal succeeding must be remote. Prima facie, it is difficult to escape the conclusion that Mr Siemer is simply seeking to avoid the security orders made in relation to his original proceedings.

[29] Further, I agree with Keane J that any analysis of the interests of justice under r 20.13(2) must include the interests of the respondents. The matters the subject of these proceedings have already been before the Courts, in one form or another, on a number of occasions. The respondents have incurred significant costs. Mr Siemer has not paid security to date. Nor has he met costs orders made against him. The respondents not unreasonably seek to avoid being put to the cost of responding to Mr Siemer’s appeal without at least the security of the modest payments into Court

_{that they seek.}

[30] I see no reason, in the interests of justice, not to fix security for costs in the terms that r 20.13 ordinarily requires.

[31] The quantum of security is fixed by r 20.13(3). Here, the parties estimate that the hearing of the appeal will take a half day. They also agree that costs should be calculated on a category 2 basis. The applicable daily rate is $1,990.

[32] I order that Mr Siemer pay into Court by way of security for costs $995 on account of the first and second respondents and $995 on account of the third, fourth and fifth respondents.

[33] If Mr Siemer does not pay those sums into Court within 10 working days of the date of issue of this decision, s 74(2) of the District Courts Act will come into play, and the appeal will be deemed to be abandoned. The respondents will not then be called upon to take any further step on this appeal.

[34] I reserve leave to the parties to apply for a variation of the timetable order made by me in my minute of 31 July 2012, to accommodate this order requiring the

_{payment of security.}

Wylie J

---

[1] _{Minute of Blanchard J dated 20 June 2011, Siemer v Heron SC6/2011.}

[2] Siemer v Heron HC Auckland CIV-2010-404-6880, 17 March 2011.
[3] _{Siemer v Heron & Ors, above n 2 at [10].}
[4] RIG v Chief Executive of the Ministry of Social Development [2010] NZCA 370; (2010) 20_{PRNZ 703.}

[5] Chatha v Wanganui Gas Ltd (2004) 17 PRNZ 736 (HC).