Siemer v Heron

• Jurisdiction: New Zealand
• Judge: Elias CJ,Blanchard,Tipping,McGrath JJ,Blanchard J,William Young J
• Judgment Date: 08 November 2011
• Neutral Citation: [2011] NZSC 133
• Docket Number: SC 6/2011
• Court: Supreme Court
• Date: 08 November 2011

Between

Vincent Ross Siemer

Appellant

and

Michael Richard Heron

First Respondent

and

Russell McVeagh

Second Respondent

and

Force 1 Security

Third Respondent

and

Sione Tanaki

Fourth Respondent

and

Pio Sami

Fifth Respondent

[2011] NZSC 133

Court:

Elias CJ, Blanchard, Tipping, McGrath and William Young JJ

SC 6/2011

IN THE SUPREME COURT OF NEW ZEALAND

Appeal against interlocutory High Court decision — District Court made order requiring appellant to give security of $20,000 — proceeding stayed until security paid — before HC would hear appeal from DC, appellant ordered to pay $800 security for costs — leave to appeal to Court of Appeal declined by HC and CA — whether there was an appeal as of right under s66 Judicature Act 1908 (Court may hear appeals from judgments and orders of the HC).

Counsel:

Appellant in Person

T L Clarke and S P H Elliot for First and Second Respondents

A C Beck as Amicus Curiae

JUDGMENT OF THE COURT

A The appeal is dismissed.

B Costs are reserved.

REASONS

	Para No
Elias CJ, Blanchard, Tipping and McGrath JJ	[1]
WilliamYoung J	[44]

Elias CJ, Blanchard, Tipping AND McGrath JJ

(Given by Blanchard J)

Introduction

1 Sections 66 and 67 of the Judicature Act 1908 say when appeals to the Court of Appeal are available against decisions of the High Court in civil cases. 1 They are as follows:

• 66 Court may hear appeals from judgments and orders of the High Court

  The Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment, decree, or order save as hereinafter mentioned, of the High Court, subject to the provisions of this Act and to such rules and orders for regulating the terms and conditions on which such appeals shall be allowed as may be made pursuant to this Act.

• 67 Appeals against decisions of High Court on appeal

  • (1) The decision of the High Court on appeal from an inferior court is final, unless a party, on application, obtains leave to appeal against that decision—

    • (a) to the Court of Appeal; or

    • (b) directly to the Supreme Court (in exceptional circumstances as provided for in section 14 of the Supreme Court Act 2003).

  • (2) An application under subsection (1) for leave to appeal to the Court of Appeal must be made to the High Court or, if the High Court refuses leave, to the Court of Appeal.

  • (3) An application under subsection (1) for leave to appeal directly to the Supreme Court must be made to the Supreme Court.

  • (4) If leave to appeal referred to in subsection (1)(a) is obtained, the decision of the Court of Appeal on appeal from the High Court is final unless a party, on application, obtains leave to appeal against that decision to the Supreme Court.

  • (5) Subsections (1), (3), and (4) are subject to the Supreme Court Act 2003.

2 Section 66 is a general provision which permits appeals from the High Court to the Court of Appeal as of right, subject to other provisions of the Act and to any rules of court and Orders in Council made pursuant to the Act “regulating” the terms and conditions which are to apply to the appeals. Section 66 has, however, to be read subject to the special provision in s 67 governing appeals against decisions of the High Court on appeal from an “inferior court”, which require leave from the High Court or, if it refuses, from the Court of Appeal. 2

3 But what is the position when the decision sought to be appealed is an interlocutory decision made by the High Court in the course of an appeal against a decision by an inferior court? In such a case, what the party aggrieved by the High Court decision is wanting to appeal against is a procedural decision which the High Court has been called upon to make before it has determined the issue to which the appeal from the inferior court relates. Is the appeal against the High Court's interlocutory decision governed by s 66 or by s 67? Is there an appeal as of right under the former section, even though any appeal against the substantive decision which the High Court may eventually make on the appeal is itself appealable only with leave under s 67?

Mr Siemer's appeal

4 Mr Siemer, who has throughout acted for himself, has claimed damages against the respondents for an alleged assault (unaccompanied by any battery) and for misfeasance in public office. It is unnecessary to discuss the merits or otherwise of his claim, upon which we express no view, noting only that the District Court

Judge, Judge Joyce QC, observed that the latter claim was “almost certainly bereft of legal substance”. 3

5 Judge Joyce heard an application for security for costs made by the respondents. He made an order requiring Mr Siemer to give security in the amount of $20,000 and stayed the proceeding until payment was made. That stay remains in place. As he was entitled to do, Mr Siemer appealed to the High Court against that decision under s 72 of the District Courts Act 1947. Section 74 of that Act provides:

74 Security for appeal

• (1) Unless granted legal aid under the Legal Services Act 2000, an appellant under section 72 may be required by the High Court Rules to give the Registrar of the High Court security for costs.

• (2) If any security required is not given within the time required by the High Court Rules, the appellant's appeal must be treated as having been abandoned.

6 The High Court Rules contain the following provisions:

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. 4

• (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.

• …

• (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.

• (5) Except in the case of an appeal under the District Courts Act 1947 (where non-compliance with the security order results in a deemed abandonment of the appeal under section 74), if the security is not paid within the time specified under subclause (4), the respondent may apply for an order dismissing the appeal.

• …

7 When allocating a fixture for the appeal the High Court ordered Mr Siemer to pay $800 by way of security for costs on the appeal. 5 The order required that the $800 be paid by 1 May 2009. It said that unless Mr Siemer paid that security by that date the appeal would be “treated as abandoned and dismissed”.

8 Mr Siemer then filed a memorandum in the High Court asking it to reconsider the order for security. By Minute of 30 March 2009, Venning J declined to do so, observing that there was nothing extraordinary about the “unless” order which “simply clarifies the statutory provision contained in s 74 of the District Courts Act 1947 that if security is not paid the appeal will be dismissed”. 6

9 Mr Siemer again attempted by means of a memorandum filed in the Court to have the Judge change his mind. Venning J declined to revoke the order for payment of security for the appeal, but did extend the period for payment of the $800 to 29 May 2009, again expressly saying that the appeal would be treated as abandoned and dismissed without further call unless the security was paid by that date. 7

10 For a third time, Mr Siemer sought in a memorandum to the Court to have the Judge review his order. In another Minute on 2 June 2009, the Judge once more refused to do so. He noted that Mr Siemer had failed to pay the security, that his order had taken effect on 29 May, and he confirmed that “by the operation of that order”, which gave effect to s 74 of the District Courts Act, the appeal from the District Court was dismissed. 8

11 On 19 June 2009 Mr Siemer filed in the High Court an application for leave to appeal to the Court of Appeal against the High Court's order for payment of security for costs. Venning J gave judgment on 29 March 2010. 9 He expressed the view that the order requiring payment of security was not a decision for the purposes of s 67 but indicated that, if it had been, he would have declined leave. 10 He briefly

considered the possibility that the order was appealable under s 66. He said that on a literal reading of that section the order was one to which the section would apply, but that, as the Court of Appeal had confirmed, interlocutory decisions or orders going only to the conduct or management of a trial, or in this case an appeal, were not appealable. 11 The order for security was in that category. Venning J concluded that there was no right of appeal under s 66 and dismissed Mr Siemer's application

12 Then followed an unsuccessful application by Mr Siemer for recall of that judgment and finally he applied to the Court of Appeal for leave to appeal. In a judgment given on 14 December 2010, that Court declined leave. 12 It said that it assumed that there was no automatic right of appeal against the security for costs order in the High Court, but that there was a right to appeal by leave. 13 It did not consider that leave should be granted. There was nothing to suggest that the appeal to the High Court from the District Court could not proceed because of Mr Siemer's financial circumstances. He was bankrupt, but the Court observed that the fact of bankruptcy did not prevent income up to a certain level being earned, and the sum of $800 was less than the sum that can be left available to a bankrupt. The Court said that there was no evidence before it as to Mr Siemer's financial circumstances, apart from the fact of his bankruptcy. 14

Sections 66 and 67

13 This Court has had the benefit, which the Courts below did not, of a helpful analysis from an amicus, Mr Beck, appointed by this Court to put forward legal arguments supporting the appellant.

14 It was rightly not...