Siemer v Deputy Registrar of the Court of Appeal [2014] NZHC 1687 (18 July 2014)

Last Updated: 12 August 2014

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-10874 [2014] NZHC 1687

BETWEEN	VINCENT SIEMER Plaintiff
AND	DEPUTY REGISTRAR OF THE COURT OF APPEAL Defendant

Hearing:	16 July 2014
Counsel:	Mr Siemer in person (by telephone) P J Gunn with S J Humphrey for Defendant
Judgment:	18 July 2014

JUDGMENT OF THE HON JUSTICE KÓS (Strike out application)

[1] This is an application by the defendant deputy registrar to strike out a judicial review proceeding filed in this Court. It concerns the defendant’s refusal to accept for filing an application made by Mr Siemer under s 61A of the Judicature Act 1908 for a Judge of the Court of Appeal to dispense with the payment of security for costs on an appeal.¹ The defendant says the judicial review cannot succeed and is an abuse of process.

Background

[2] The background to this proceeding is chaotic. Most of it need not detain us. The essential chronology is as follows:

¹ Section 61A was introduced by s 8 of the Judicature Amendment Act 1977 and was intended to enable single Judges of the Court of Appeal to make purely incidental orders and directions, without needing to convene a panel of three: the Hon David Thomson: 414 NZPD 3312 (28 September 1977).

SIEMER v DEPUTY REGISTRAR OF THE COURT OF APPEAL [2014] NZHC 1687 [18 July 2014]

(a) On 30 August 2013 Andrews J struck out an earlier judicial review proceeding brought by Mr Siemer against the Registrar of the Court of Appeal.²

(b) On 4 September 2013, Mr Siemer filed a notice of appeal against that decision in the Court of Appeal. With his notice of appeal he filed a standard form application for waiver of the filing fee. Waiver was sought on the basis of impecuniosity. That application appears to have been accepted. The notice of appeal was accepted for filing, given an appeal number, and the filing fee was waived.

(c) At some point between 4 and 16 September 2013 Mr Siemer was advised that security for costs was set at $5,880, calculated in accordance with the formula in r 35(5) of the Court of Appeal (Civil) Rules 2005.³

(d) On either 12 or 16 September 2013, Mr Siemer lodged an interlocutory application under s 61A(1) of the Judicature Act 1908 for a Judge’s ruling to dispense with security “fixed by the Registrar”.⁴

[3] The defendant deputy registrar considered the application. She referred it to the Registrar. The Registrar did not accept that the Court had jurisdiction to receive an application under s 61A. The defendant then wrote back to Mr Siemer:

There is no provision for you to bypass rule 35. If you wish to apply for security for costs to be reduced, dispensed with or deferred, you are required to make an application to the Registrar. Your application for a s 61A incidental order is not accepted and is returned to you.

[4] On 2 December 2013 Mr Siemer filed an application for judicial review against the decision of the deputy registrar. He asserts in that proceeding that the

_{deputy registrar had no power to reject the application, and acted ultra vires in doing}

² _{Siemer v Registrar of the Court of Appeal [2013] NZHC 2240.}

³ Mr Siemer pleads lodgement on 12 September 2013. A letter from the defendant exhibited by

_{Mr Siemer says that occurred on 16 September 2013.}

4. The application assumes the Registrar set security, whereas in fact it is set automatically under the rules.

so. Procedural impropriety, bias, breach of natural justice and denial of his s 27 rights under the New Zealand Bill of Rights Act 1990 rights were asserted also. The essence of the underlying error of law asserted is best demonstrated by quoting paragraph 22 of the statement of claim:

There is no law in New Zealand which requires appellants to the Court of Appeal to apply to the Registrar of the Court of Appeal for an incidental order dispensing with security and the defendant’s reliance on the false premise such a legal requirement exists was an elementary error in law.

Strike out application

[5] The defendant now applies to strike out the statement of claim. She says she had “no jurisdiction” to receive the s 61A application. She also asserts that the Bill of Rights damages claim is precluded by Attorney-General v Chapman⁵ and that the assertion of bias made in the statement of claim is completely untenable.

Analysis

The defining question

[6] Counsel for the defendant, Mr Gunn, and Mr Siemer were in agreement that the “defining question” on the strike out application is whether the defendant had any discretion to receive the s 61A application. If she did not, the judicial review must fail.

Legal principles

[7] The relevant legal principles in relation to the setting of security for costs in the Court of Appeal may be summarised thus.

[8] First, security for costs is set automatically by r 35(2) and (5). An appellant must pay the sum prescribed in r 35(5) within 20 working days of filing a notice of

_{appeal. As McGechan on Procedure puts it, security is “self-fixing”.}⁶

⁵ _{Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462.}

⁶ Beck and others McGechan on Procedure (looseleaf ed, Brookers) at [CR35.02]. In the former rules the Registrar had an originating discretion in setting the amount in the first place: Court of Appeal (Civil) Rules 1997, r 11. Now the discretion is purely responsive.

[9] Secondly, the Registrar is empowered, on application, to make an order either increasing security, reducing security, dispensing with security altogether, or deferring the date for payment: r 35(6). Any such application must also be made within the same 20 working days of the notice of appeal being filed: r 35(7). It follows that in exercising that power, the Registrar will be required to consider the usual matters where security is set on a discretionary basis – i.e. as in the High Court. Those include (but are not confined to) the extent of impecuniosity and an

“impression” of the merits of the proceeding.⁷ The Supreme Court said in Reekie v

Attorney General that the discretion to dispense with security should be exercised so as to 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. But it should also:⁸

... prevent the use of impecuniosity to secure the advantage of being able to prosecute an appeal which would not be sensibly be pursued by a solvent litigant.

Mr Siemer takes the point that a Registrar may be ill-equipped to form an impression of the merits of a proceeding. That may sometimes be so. But that is the process the rules provide.⁹ And a party (whether appellant or respondent) discontent with the Registrar’s decision may always apply for review by a Judge under r 7(2).

[10] Thirdly, it remains unclear to me why Mr Siemer did not make an application for dispensation to the Registrar under r 35(6). He could have done so. As at 16

September 2013 he was still within time to do so. When I pressed Mr Siemer on that point in argument, I received no satisfactory answer. His argument seemed to be, fundamentally, that it was inappropriate that a registrar evaluate merit. I have already explained the error in that argument in the preceding paragraph.

[11] Fourthly, it is clear on the authorities that, at least where time is still running under r 35(7), a deputy registrar has no discretion to receive an application for

_{dispensation with security under s 61A instead. That has been stated clearly in four}

⁷ _{See Reekie v Attorney-General [2014] NZSC 63 at [31]–[44].}

⁸ _{At [35(b)].}

⁹ The Supreme Court recently has suggested this approach be reconsidered by the Rules

Committee, but that has not yet occurred: Reekie v Attorney-General [2014] NZSC 63 at [22].

prior authorities, all of which are binding on me and all of which involved

Mr Siemer:

(a) Siemer v Official Assignee per Wild J:¹⁰

[3] In her 7 January decision the Registrar held that there was no jurisdiction for the 24 December application under s 61A(1).

[4] I agree with the Registrar. The scheme of this Court’s Civil Rules is quite deliberately that security for costs is fixed automatically by the r 35(5) formula, and that any application for a departure is dealt with by the Registrar under r 35(6). That is to avoid the time of Judges of this Court being taken up dealing with security.

[5] The appellant’s correct course, if dissatisfied with the fixing of security for costs, was an application under r 35(6). A Judge would only become involved if application was made to review the Registrar’s decision under r 35(6). The appellant’s application cut across the scheme of the rules, effectively by seeking to have a Judge perform the Registrar’s r 35(6) function.

(b) Siemer v Stiassny per Glazebrook J:¹¹

[9] Any application to dispense with security for costs or to vary the amount or time of payment must be made to the Registrar of the Court of Appeal under r 35(7). This means that all appellants in Mr Siemer’s position must, if they wish to make an application to dispense with security for costs, apply to the Registrar of the Court of Appeal.

[10] Because the powers relating to security for costs are, under r 35(7), conferred on the Registrar, appellants cannot apply for an order directly to a judge of the Court of Appeal under s 61A(1) of the Judicature Act 1908. However the Registrar’s decision on security for costs (if adverse to the an appellant) would be reviewable under s 61A(3) of the Judicature Act by a judge of the Court of Appeal.

(c) Siemer v Stiassny per McGrath, William Young and Glazebrook JJ:¹²

[8] The proper procedure for applying to dispense with or vary security for costs is, as occurred in this case, for Mr Siemer to apply to the Registrar under r 35(7) of the Court of Appeal (Civil) Rules. The Registrar dealt with that application on 29 July 2013.

¹⁰ _{Siemer v Official Assignee [2014] NZCA 3.}

¹¹ _{Siemer v Stiassny [2013] NZSC 110 (footnotes omitted).}

¹² Siemer v Stiassny [2013] NZSC 115.

[9] Once that occurred, the only avenue for review of that decision is by a single judge under s 61A(3) of the Judicature Act. This means that Harrison J was not able to consider Mr Siemer’s application for an order under s 61A(1) of the Judicature Act.

(d) Siemer v Official Assignee per William Young, Glazebrook and

Arnold JJ:¹³

[5] In relation to the other two judgments of Wild J, the applicant wishes to argue that a judge of the Court of Appeal, acting under s 61A of the Judicature Act 1908, may dispense with security for costs and that an appellant who seeks such dispensation is not required to apply, in the first instance, to the Registrar of the Court of Appeal and then to a judge only by review. Given that the Court of Appeal (Civil) Rules 2005 provide specifically for applications to dispense with security to be dealt with by the Registrar but with a right to seek review, a judge of the Court of Appeal is most unlikely to assume or exercise jurisdiction to do so under s 61A. For this reason, the argument of the applicant does not raise an issue of public or general importance and we also see no appearance of a miscarriage of justice.

[12] Although there is a measure of equivocation in the last passage not present in the others, it is utterly clear that these decisions hold that where time at least is still running under r 35(7), no such s 61A application may be made.

Conclusion

[13] It followed that the deputy registrar had no discretion to receive an application under s 61A from Mr Siemer. For her to have done so would have been an act in defiance of clear decisions of both the Court of Appeal and the Supreme Court. Mr Siemer’s only option, if he wished security to be dispensed with, was to make an application to the Registrar under r 35(6). That option was available to him at that time. And if he did not like her decision, and wanted a Judge to review it, he was free to apply accordingly.

[14] It follows on this defining issue that the application for judicial review cannot conceivably succeed in any respect. It is, therefore, struck out.

¹³ Siemer v Official Assignee [2014] NZSC 42.

Result

[15] Proceeding struck out.

[16] I did not hear either party on costs. The defendant applies for costs on a category 2 band B basis. I will make that order unless I receive submissions from Mr Siemer within ten days, showing why I should not do so.

Stephen Kós J

Solicitor:

Crown Law, Wellington for Defendant

And to:

Mr Siemer