SIEMER V SOLICITOR-GENERAL OF NEW ZEALAND COA CA545/2011

SIEMER V SOLICITOR-GENERAL OF NEW ZEALAND COA CA545/2011 [6 March 2012]IN THE COURT OF APPEAL OF NEW ZEALANDCA545/2011[2012] NZCA 68BETWEEN VINCENT ROSS SIEMERApplicantAND SOLICITOR-GENERAL OF NEWZEALANDRespondentCA558/2011AND BETWEEN VINCENT ROSS SIEMERApplicantAND THE CHIEF JUSTICE OF NEWZEALANDFirst RespondentAND THE ATTORNEY-GENERAL OF NEWZEALAND (ON BEHALF OF THECROWN)Second RespondentCounsel: Applicant in personA M Powell for RespondentsJudgment: 6 March 2012 at 3.30 p.m.JUDGMENT OF ARNOLD JThe application for review of the Acting Registrar's decisions as to security forcosts is declined. Security for costs of $5,560.00 in respect of each appeal must be paid into Court within 20 working days of the date of this judgment._______________________________________________________________REASONSIntroduction[1] In a decision dated 22 August 2011 Woodhouse J struck out five claims brought (in separate proceedings) by Mr Siemer against, variously, the Attorney- General, the Solicitor-General, the Chief Justice and two Judges of the High Court.1Mr Siemer filed the present appeals in respect two of the claims which were struck out, one involving the Solicitor-General (CA545/2011) and the other the Chief Justice and the Attorney-General (CA558/2011). Security for costs for each appeal was set at $5,560.[2] On 22 September 2011 Mr Siemer applied for dispensation from the requirement to pay security.2 He relied on the fact that he remains a bankrupt andargued that requiring security in this instance would constitute "unjustifiablegovernment self protection in contravention of the government's own statutes, andan undue restriction to court access."[3] The Crown Law Office filed a memorandum on behalf of the respondents opposing the application. The memorandum noted that an effort would be made to consolidate the two appeals which are the subject of this judgment with two other appeals filed by Mr Siemer around the same time (one of which Mr Siemer has now indicated an intention to abandon). For that reason, it suggested that security for costs should be assessed across the four appeals and hence a 25 per cent reduction in the amount of security would be appropriate. However, in a memorandum in reply Mr Siemer indicated that he would oppose consolidation of the appeals, on the basis that they involve distinct issues and different respondents.[4] In two letters dated 18 November 2011, the Acting Registrar declined to dispense with security in respect of the appeals. Mr Siemer then applied for a review of the Acting Registrar's decisions.1 Siemer v Chief Justice HC Auckland CIV-2009-404-8435, 22 August 2011.2 Court of Appeal (Civil) Rules 2005, r 35(6)(c).The Acting Registrar's Decision[5] The Acting Registrar recognised that Mr Siemer had been adjudicated bankrupt, but said that impecuniosity alone was insufficient reason to dispense with security. There must be exceptional circumstances such that it is in the interests of justice that security be waived. The Acting Registrar noted that the High Court inthe judgment under appeal had struck out Mr Siemer's claims as an abuse of processbecause they constituted a collateral attack on final decisions of the courts. He found that the grounds raised by Mr Siemer in his application for dispensation did not fall into the category of exceptional circumstances. It was necessary to protect the respondents in the event that the appeals were unsuccessful and costs were awarded in their favour. Security remained set at $5,560 for each appeal, to be paid by 16 December 2011.[6] Mr Siemer applied for a review of the Acting Registrar's decisions on28 November 2011, within the 10 working day period provided for in the rules.3Security for Costs - General Principles[7] In the normal course, appellants in civil proceedings in this Court are required to pay security for costs.4 An appellant may apply to the Registrar for a waiver of security within 20 days of filing the appeal5 and the Registrar may vary orwaive security "if satisfied that the circumstances warrant it".6[8] Security for costs will be waived where it is in the interests of justice to do so. There must be some exceptional circumstance to justify waiver.7 The appellant must honestly intend to pursue the appeal and it must be arguable, as respondents should not face the threat of hopeless appeals without provision for security. The importance of the issues raised in the appeal will be significant, as will the question3 Rule 7(3).4 Rule 35(2).5 Rule 35(3) and (6).6 Rule 35(6).7 Fava v Zaghloul [2007] NZCA 498 at [9].whether there is any public interest in having them determined.8 Impecuniosity alone is not usually sufficient to justify a waiver, but may be reason to reduce the quantum of security.9Discussion[9] I consider that the Acting Registrar was right to refuse to dispense with the requirement to pay security for costs in respect of these appeals.[10] Mr Siemer submitted that impecuniosity is an exceptional circumstance justifying waiver of security. That is contrary to the authorities, which indicate that impecuniosity will not usually be sufficient in itself to justify waiver. The overall question is whether it is in the interests of justice to dispense with the requirement to pay security. Impecuniosity, and the fact that the appellant's right of appeal may be rendered nugatory if security is not waived, are relevant considerations in making that assessment. But it is also important to consider whether the appeal is arguable. A respondent should not be forced to go to the expense of defending a hopeless appeal without some protection in respect of its costs.10 The fact that the respondents in the present appeals are public officers does not affect that.[11] Mr Siemer's appeals do not appear to have any prospect of success. Woodhouse J struck out the claims on the basis that they amounted to a collateral attack on final decisions of the courts in earlier contempt proceedings against Mr Siemer, did not raise any reasonably arguable cause of action and offended the doctrine of judicial immunity. On a preliminary assessment, the grounds of appeal identified by Mr Siemer look weak.[12] Moreover, the appeals do not raise any issues of importance or which there is a public interest in having determined. In reaching his decision, the Judge applied settled legal principles to the claims before him. Mr Siemer argues that the Judge wrongly applied the law in a manner inconsistent with the New Zealand Bill of8 Creser v Official Assignee CA196/05, 12 June 2006 at [29].9 Fava v Zaghloul at [9]; Easton v Broadcasting Commission [2009] NZCA 252 at [5].10 Easton v Broadcasting Commission [2009] NZCA 252 at [5]; Easton v Wellington City Council[2011] NZCA 296 at [3]–[4].Rights Act 1990 (NZBORA). However, it is well recognised that the rights set out in NZBORA are not absolute: they are subject to justifiable limitations prescribed by law in accordance with s 5, something which Mr Siemer does not appear to recognise.[13] For completeness, I note that Mr Siemer's application for review alleges thatthe rules about security for costs are unclear and that an amicus curiae should be appointed to make submissions to assist in clarifying the law in regard to security forcosts orders. Mr Siemer states that it "is solely the Court's responsibility to identifyclearly what is required for waiver of security and not state that "exceptional circumstances" are required which are as illusive [sic] as they are abstract".[14] The Court applies established criteria in reaching each decision on security for costs, as discussed at [7] – [8] above. The exceptional circumstances that might justify dispensation cannot sensibly be identified in advance. Rather, each case must be considered on its merits. By their nature, however, exceptional circumstances will occur only in a small proportion of cases. There is nothing to be gained from the appointment of an amicus. Accordingly, Mr Siemer's request is declined.Decision[15] The application for review of the Acting Registrar's decisions as to security for costs is declined. Security for costs of $5,560.00 in respect of each appeal must be paid into Court within 20 working days of the date of this judgment. There is no order for costs on this application.Solicitors:Crown Law Office, Wellington for Respondents