SIEMER v REGISTRAR OF THE SUPREME COURT [2020] NZCA 360

SIEMER v REGISTRAR OF THE SUPREME COURT [2020] NZCA 360 [24 August 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA528/2019[2020] NZCA 360BETWEEN JANE CHAPMAN SIEMERApplicantAND REGISTRAR OF THE SUPREME COURTRespondentCounsel: Applicant in PersonJudgment:(On the papers)24 August 2020 at 3.30 pmJUDGMENT OF COURTNEY JREASONS[1] Ms Siemer has applied to review a Deputy Registrar's decision declining herapplication for a fee waiver. The waiver application was made on the basis ofimpecuniosity and public interest. It was refused on the ground that Ms Siemer hadfailed to provide adequate evidence of impecuniosity and that the appeal did not raisean issue of public interest. I have concluded, however, that Ms Siemer is not entitledto seek a review of the decision because her appeal is deemed to have been abandoned.Procedural history[2] It is evident that the genesis of the current proceeding is a Disputes Tribunalhearing over a dispute that Ms Siemer and her husband had with a builder. Dissatisfiedwith the outcome, Ms Siemer appealed unsuccessfully to the District Court.1Ms Siemer also took a number of other steps, including complaining to the Ministry1 Siemer v Hickson [2018] NZDC 4262.of Justice (MOJ). Ms Siemer was unhappy with the MOJ's response. She applied forjudicial review against the Attorney-General and the Disputes Tribunal referee inrespect of the way the MOJ had dealt with the complaints.[3] From 31 May to 13 September 2018, Fitzgerald J issued various minutesregarding the disclosure of the Disputes Tribunal transcript in subsequent litigation.[4] In December 2018 Hinton J struck out the judicial review proceedings.2In addition, she made the following order under s 166 of the Senior Courts Act 2016restraining Ms Siemer from commencing or continuing proceedings relating tothe Disputes Tribunal proceedings for three years:3Jane Dinsdale Siemer is prohibited from commencing or continuing, withoutleave, any proceeding in any Court or Tribunal, concerning or relating toSiemer v Hickson CIV-2017-044-495 and CIV-2017-044-562, including(without limitation) proceedings relating to the conduct of any judicial officerof the Disputes Tribunal, for three years.[5] The chronology from that point is as follows:(a) In September 2018 Ms Siemer filed a notice of appeal in this Court inrespect of two of Fitzgerald J's minutes. She sought a waiver of thefiling fee on the ground that the appeal raised matters of public interest.The Deputy Registrar refused to waive the filing fee. Ms Siemer soughta review of that decision, which Miller J declined.4(b) Ms Siemer applied for leave to appeal to the Supreme Court againstMiller J's decision. She sought a waiver of the Supreme Court filingfee. The Registrar of the Supreme Court refused to waive the fee.Ms Siemer applied to review that decision.2 Siemer v Attorney-General [2018] NZHC 3406.3 At [108].4 Siemer v District Court North Shore [2018] NZCA 558.(c) Ellen France J dismissed the review application.5 Ms Siemer requestedthat Ellen France J's decision be referred to the Supreme Court itself.The Registrar of the Supreme Court refused to do so.(d) In April 2019 Ms Siemer filed an application for judicial review in theHigh Court in relation to the Supreme Court Registrar's decisionrefusing to refer Ellen France J's decision to the Court itself.(e) In September 2019 the Registrar of the High Court referred the matterto Cooke J under r 5.35A of the High Court Rules 2016. The Judge'spowers in relation to a matter referred under r 5.35A are those set outat r 5.35B and include the power of the Judge, on his or her owninitiative, to strike out the proceeding.6 Cooke J considered that theproceedings were an abuse of process and struck them out.7 Cooke Jnoted in his decision that "[i]t would appear that the underlyinglitigation may be related to that which is the subject of the order madeby Hinton J".8(f) On 9 October 2019 Ms Siemer filed a notice of appeal againstCooke J's decision. Under r 43(1) of the Court of Appeal (Civil) Rules2005 the appeal would be deemed to have been abandoned if a hearingdate was not sought within 3 months of this date. Under r 37(2) a partycannot seek a hearing date until any prescribed fees have been paid.(g) Along with her appeal Ms Siemer also applied for a waiver of fees.That application relied on the waiver of fees that had been granted inthe High Court but the Deputy Registrar of the Court of Appealrequested a fresh application relevant to the current appeal.(h) On 4 November 2019 Ms Siemer filed a fresh application for waiver offees. The grounds advanced were impecuniosity and public interest.5 Siemer v District Court at North Shore [2019] NZSC 19.6 High Court Rules 2016, r 5.35B(2)(a).7 Siemer v Registrar of the Supreme Court [2019] NZHC 2345.8 At [10].(i) On 25 November 2019 the Deputy Registrar requested furtherinformation in relation to the impecuniosity ground, specifically"copies of bank statements in respect of all your bank accounts,including those held jointly, for the past three months, to show yourincome and expenditure" by 29 November 2019. Ms Siemer provideda copy of a single page from the bank statement of a joint bank accountthat covered the period 14–26 November 2019. The Deputy Registrarresponded that the information was not what had been requested.Ms Siemer's response suggests that she had not fully appreciated thenature of the information she had earlier been requested to provide.However, her response also suggested that she did not intend to providefurther information; it concluded with the statement "I have no incomein the period you requested".(j) On 4 December 2019 the Deputy Registrar wrote to Ms Siemer notingthat she had not been provided with the requested financial informationand that she considered that the appeal did not fall into the category ofhaving a genuine public interest. She accordingly declined theapplication for fee waiver. The fee of $1,100 became payable byThursday 23 January 2020. The Deputy Registrar advised that if thefee was not paid no further action would be taken in respect of theapplication and that if Ms Siemer was not satisfied with the decisionshe was entitled to apply for a review. Ms Siemer was however advisedthat an application for review needed to be made within 20 workingdays of being notified of the decision refusing the waiver, thoughMs Siemer could apply to a Judge for an extension of that time.(k) Ms Siemer did not file an application to review the Deputy Registrar'sdeclinature of her fee waiver application.(l) Instead, on 13 December 2019 Ms Siemer filed an application underr 43(2)(a) of the Court of Appeal (Civil) Rules seeking an extension ofthe three-month time period allowed in r 43(1) to apply for theallocation of a hearing date and file the case on appeal. An applicationunder r 43(2)(a) is required to be made as an interlocutory application.An interlocutory application carries a $400 filing fee and Ms Siemerwas told that when the application was filed. Ms Siemer did not paythe filing fee.9 On 20 December 2019 she emailed the Court to say thatshe did not consider that a filing fee was payable because theapplication was being made informally under r 43(1B)(c). This wasclearly not correct. First, Ms Siemer's application was stated as beingmade under r 43(2)(a). Secondly r 43(1B)(c) applies only toapplications to review decisions made under r 35(6) relating to securityfor costs. Ms Siemer's request to have security for costs dispensed withhad not yet been determined and therefore no application could havebeen made under r 43(1B)(c).(m) The application under r 43(2) for an extension was not determined,which is to be expected given that no filing fee had been paid.(n) On 16 January 2020 the s 43(1) period expired and at that point theappeal was deemed to have been abandoned.(o) For reasons that are not clear the Deputy Registrar wrote to Ms Siemeron 29 May 2020 referring to the failure to pay the required filing fee onthe appeal and advising that if the fee was not received by 15 June 2020the matter would be referred to a Judge for strike out in accordance withr 44A of the Court of Appeal (Civil) Rules. On 10 June 2020 Ms Siemerwrote to clarify what had happened. She subsequently agreed that heremail should be treated as a request to review the Deputy Registrar'sdecision refusing the fee waiver out of time.Decision[6] The matter has been referred to me for review of the Deputy Registrar'sdecision.9 Schedule to the Court of Appeal Fees Regulations 2001.[7] In my view Ms Siemer's appeal must be treated as having been abandoned inJanuary 2020 because she did not seek a hearing date within three months of filing theappeal and did not obtain an extension of time to do so. The intention of r 43(1) is thatan appeal is deemed abandoned after the expiry of the time specified for all purposesexcept a timely r 43(2) application.10 Although Ms Siemer filed her r 43(2) applicationwithin time her failure to pay the required filing fee means that she did not make aninterlocutory application to extend time under r 43(1) .[8] An appeal deemed to have been abandoned cannot be revived.11 The appellantcan make an application under r 29A to extend time for bringing a fresh appeal, thoughthe threshold for leave is high.[9] The subsequent correspondence between Ms Siemer and the Deputy Registrarcannot have the effect of creating jurisdiction to seek a review of the fee waiverapplication.[10] There is a further problem in any event. As already noted, Ms Siemer has noright to file any proceeding "concerning or relating to" Siemer v Hickson without leaveto do so. The phrase "concerning or relating to" is of wide ambit. Notwithstandingthe increasingly tangential nature of the applications that Ms Siemer has been making,it is evident that they relate back to Fitzgerald J's orders made in relation tothe Disputes Tribunal hearing that was the subject of Siemer v Hickson. The currentappeal fell within the scope of the s 166 order. Accordingly, Ms Siemer cannot takeany further step without applying for leave to do so.[11] Notwithstanding these conclusions, for completeness, I have consideredwhether the decision to decline a fee waiver was correct and concluded that it was.[12] Under reg 5 of the Court of Appeal Fees Regulations 2001 (the Regulations)the Registrar has the power to waive fees relating to an appeal. The Regulationsspecify the criteria that apply. Relevantly, these are that:10 Rabson v Transparency International New Zealand Incorporated [2016] NZCA 26 at [5].11 Siemer v Stiassny [2009] NZCA 624 at [22].(a) the applicant "would suffer undue financial hardship if he or shepaid the fee";12 or(b) the proceeding concerns a matter of genuine public interest and isunlikely to be commenced or continued unless the fee is waived. 13[13] Under regulation 5(4)(a), a proceeding that concerns a matter of genuine publicinterest is, for the purposes of the Regulations:[A] proceeding that has been or is intended to be commenced todetermine a question of law that is of significant interest to the publicor to a substantial section of the public [14] Ms Siemer challenges the Deputy Registrar's decision on both grounds. As tothe first, the Deputy Registrar was entitled to request information to satisfy herself thatundue hardship would result from Ms Siemer paying the fee waiver. The informationthat Ms Siemer provided was wholly inadequate to allow the Deputy Registrar to makethat assessment. Ms Siemer challenges the refusal to waive the fee on this ground asbeing that "I had informed you and no-one disputed that I had no New Zealandincome". This, too, is a completely inadequate basis on which to waive a fee.The issue of financial hardship is not necessarily resolved by reference to incomealone and the Deputy Registrar made no error in refusing to waive the fee on thisground.[15] As to the second ground, Ms Siemer complains that the Deputy Registrar didnot go into the reasons for concluding that the appeal does not fall into the category ofcases that concern a matter of genuine public interest.[16] In her application for waiver Ms Siemer described the question of law that sheconsidered the proceeding would clarify as follows:It is procedurally unfair for a registrar of one court to grant a fee waiver (orcharge a filing fee) and then a judge acting on his own initiative preventsservice and thereby forces it into another court which then demands a separatefee before the original claim is allowed to have a chance to proceed.12 Court of Appeal Fees Regulations, reg 5(3)(b)(iii).13 Regulation 5(2)(b).[17] The basis on which fees are charged in a particular court turns on theregulations applying to that court. There is no procedural unfairness involved in acourt registrar requiring payment of the fees that relate to a new filing in that court.Nor is there any procedural unfairness involved in requiring the proper fee to be paidwhere the appeal is against an order striking out under r 5.35B of the High Court Rules.The rule exists to ensure that the process of the High Court is not abused. A litigantwho is unhappy that proceedings have been struck out as an abuse of process has aright to appeal that decision but there is no procedural unfairness involved either inthe making of the decision or in the imposition of the usual fees required to be paid onthe appeal. The circumstances of this case simply did not raise any question of law ofsignificant interest to the public or a substantial section of the public.Solicitors:Crown Law Office, Wellington for Respondent