SIEMER v ATTORNEY-GENERAL OF NEW ZEALAND [2023] NZCA 620

SIEMER v ATTORNEY-GENERAL OF NEW ZEALAND [2023] NZCA 620 [5 December 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA614/2022[2023] NZCA 620BETWEEN VINCENT ROSS SIEMERAppellantAND ATTORNEY-GENERAL OFNEW ZEALANDRespondentCounsel: Appellant in personA M Powell for RespondentJudgment:(On the papers)5 December 2023 at 10.30 amJUDGMENT OF BROWN J(Recall)A The application for recall of Siemer v Attorney-General of New Zealand[2023] NZCA 526 is declined.B The application for a stay is declined.____________________________________________________________________REASONS[1] On 11 November 2022 the appellant filed an appeal against a judgment ofGault J,1 dismissing the appellant's application for judicial review of a decision madeby Downs J under r 11(7) of the Senior Courts (Access to Court Documents)Rules 2017.21 Siemer v Attorney-General of New Zealand [2022] NZHC 2643.2 Rafiq v Whata J HC Auckland CIV-2019-404-934, 24 October 2019.[2] An application for dispensation from the requirement to pay security for costswas declined by the Registrar. In a decision dated 27 October 2023 I declined theappellant's application for review of the Deputy Registrar's decision and directed thatsecurity for costs of $7,060 was payable by 24 November 2023.3[3] The appellant sought a review of my judgment under s 49(4) of theSenior Courts Act 2016 and, in the alternative, a recall of my judgment under r 8A ofthe Court of Appeal (Civil) Rules 2005. As the Registry has explained to the appellant(and I now confirm), a Judge's decision on a review of a Registrar's decision unders 49(6) of the Senior Courts Act cannot be the subject of a further review under s 49(4),which relates only to decisions made by a single Judge acting under s 49(3).4[4] So far as the recall request is concerned, the application sets out in considerabledetail the appellant's criticisms of the judgment, asserting (among other things) that itimproperly avoided the issues, falsely labelled its contradictions as "long-establishedpractices", and provided no factual and virtually no legal support for its analysis orconclusions.[5] As the Supreme Court stated in S (SC 39/2017) v R, the general rule is that ajudgment, once delivered, must stand for better or worse subject to appeal.5 A decisionto recall will only be made in exceptional circumstances. The three categories of casesin which it has been traditionally accepted that a judgment may be recalled are:(a) where, since the hearing, there has been an amendment to a relevantstatute or regulation or a new judicial decision of relevance and highauthority;(b) where counsel have failed to direct the Court's attention to a legislativeprovision or authoritative decision of plain relevance; or3 Siemer v Attorney-General of New Zealand [2023] NZCA 526 [Review decision].4 de Vries v Bartercard Exchange Ltd [2017] NZSC 186 at [2] and [5]; and Reekie vAttorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [26].5 S (SC 39/2017) v R [2022] NZSC 7 at [3].(c) where for some other very special reason justice requires that thejudgment be recalled.6[6] Mr Powell for the respondent submits that none of the three categories forrecall are relevant here. He contends that in reality the appellant is simply arguing thatthe decision is wrong. The appropriate vehicle for such a challenge is an appeal tothe Supreme Court.[7] I consider that my decision on review, which was made de novo, involved anorthodox application of the relevant principles governing security for costs as statedin the Supreme Court's decision in Reekie v Attorney-General.7 I agree with thesubmission for the respondent that no ground for recall has been established and thatthe proper course for a challenge to my decision is by way of appeal.[8] Consequently the application for recall of my judgment is declined.[9] The appellant also applies for a stay of my direction requiring the payment ofsecurity for costs by 24 November 2023,8 reasoning that if one is not ordered then anappeal to the Supreme Court will be rendered nugatory. I agree with Mr Powell'ssubmission that no stay is necessary to achieve the ends of justice. The appellant canrequest this Court to extend the time for lodging security for costs to a date that willaccommodate the exercise of his right to seek leave to appeal, and further again in theevent that leave to appeal is granted by the Supreme Court.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent6 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.7 Reekie v Attorney-General, above n 4.8 Review decision, above n 3, at [21].