Siemer v Registrar of the Supreme Court

[2014] NZCA 456

IN THE COURT OF APPEAL OF NEW ZEALAND

CA318/2014
[2014] NZCA 456

BETWEEN	VINCENT ROSS SIEMER Appellant
AND	REGISTRAR OF THE SUPREME COURT First Respondent
MINISTRY OF JUSTICE Second Respondent

Counsel:

Appellant in person
H M Carrad for Respondents

Judgment:

(On the papers)

16 September 2014 at 12.30 pm

JUDGMENT OF FRENCH J
(Review of Registrar’s Decision)

AThe application for review of the Registrar’s decision refusing to dispense with security for costs is dismissed.

BSecurity for costs in the sum of $5,880 must be paid into Court within 20 working days of the date of this judgment.

____________________________________________________________________

REASONS

Introduction

1. Mr Siemer has filed a notice of appeal against a decision of Clifford J.[1]  Justice Clifford struck out proceedings Mr Siemer had commenced to judicially review a decision of the Registrar of the Supreme Court declining Mr Siemer access to Court documents.  The Judge held judicial review was not available.

   [1]Siemer v Registrar, Supreme Court [2014] NZHC 1179.

2. On 25 June 2014 security for costs on the appeal was set at $5,880.

3. Mr Siemer then applied for security to be dispensed with under r 35(6)(c) of the Court of Appeal (Civil) Rules 2005.

4. The Registrar of this Court declined the application and advised Mr Siemer of her decision by letter dated 21 August 2014.

5. Following receipt of that decision, Mr Siemer filed an application under s 61A(1) of the Judicature Act 1908 purporting to seek an order dispensing with security for costs.

6. As Mr Siemer should have been aware from previous decisions,[2] if he wished to challenge the Registrar’s decision, the correct course of action was for him to apply for a review of that decision under s 61A(3) of the Judicature Act and r 7(2) of the Court of Appeal (Civil) Rules.

   [2]Siemer v Stiassny [2013] NZSC 115 at [9]; Siemer v Stiassny [2013] NZSC 110 at [10].

7. I accordingly issued a minute to this effect on 28 August 2014.

8. Mr Siemer then filed a further application purporting to be in compliance with my minute.  Although the new application is not expressly described as being an application for review, I am prepared to treat it as such.

Grounds for review

1. Mr Siemer contends the Registrar of this Court has a conflict of interest that renders her decision a nullity and that she was wrong to find the appeal does not raise matters of significant public importance.

The decision

1. I am prepared to accept, for the purposes of this review, that Mr Siemer is impecunious.

2. As stated in Reekie v Attorney-General, the discretion to dispense with security should be exercised so as to:[3]

   (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.

   [3]Reekie v Attorney-General [2014] NZSC 63 at [35].

3. I am satisfied that this appeal falls into the second category.  It is one that would not be sensibly pursued by a reasonable solvent litigant.  First, the appeal is highly problematic.  In striking out the proceedings, Clifford J relied on well‑established authority.[4]  Secondly, and most importantly, there is an alternative remedy available to Mr Siemer.  He has the right to apply for a review by a Supreme Court judge.

   [4]Mafart v Television New Zealand Ltd [2006] NZSC 33, [2006] 3 NZLR 18.

4. I am also satisfied that the Registrar does not have a conflict of interest that disqualified her from entertaining Mr Siemer’s initial application.  Contrary to a submission made by Mr Siemer, the fact he has issued proceedings against the Registrar is not a sufficient ground for disqualification.

5. Also contrary to a submission made by Mr Siemer, the fact the filing fee has been waived is not inconsistent with a refusal to dispense with security for costs.  Impecuniosity, while relevant, is not determinative. 

Outcome

1. The application for review is dismissed.

2. Security for costs in the sum of $5,880 must be paid into Court within 20 workings days of the date of this judgment.

Solicitors:
Crown Law Office, Wellington for Respondents