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New Zealand Supreme Court Transcripts |
Last Updated: 13 July 2012
IN THE SUPREME COURT OF NEW ZEALAND SC 6/2011
BETWEEN VINCENT ROSS SIEMER
Appellant
AND MICHAEL HERON
First Respondent
AND RUSSELL MCVEAGH
Second Respondent
AND FORCE 1 SECURITY
Third Respondent
AND SIONE TANAKI
Fourth Respondent
AND PIO SAMI
Fifth Respondent
Hearing: 15 September 2011
Court: Elias CJ Blanchard J Tipping J McGrath J William Young J
Appearances: Appellant appears in person
T L Clarke and S P H Elliott for the First and Second
Respondents
A C Beck as Amicus Curiae
5 CIVIL APPEAL
ELIAS CJ:
We have taken the appearances. We would be assisted by hearing first from the
5 amicus in this matter, if that’s convenient?
MR BECK:
Yes, your Honour, I think Mr Siemer doesn’t wish to make submissions on the appeal itself. Is that right?
10
MR SIEMER:
Exactly, I –
ELIAS CJ:
15 Well, if there’s anything you want to add, which is why I thought it would be sensible for the amicus to go first, then you can add it, Mr Siemer.
MR BECK:
Your Honours, the questions which have been reserved for appeal relate to rights of
20 appeal from the High Court and are, of course, matters of statutory rights, so the questions ultimately are questions of statutory interpretation. But, as your Honours will know, that over the years they’ve – the provisions of ss 67, 66 and 77 of the Judicature Act have been subject to a number of interpretations, some of them are somewhat ad hoc interpretations, and at heart there are important issues going to the
25 accountability of the judiciary at stake, so this is one of those cases where guidance
from the Supreme Court is likely to be very important and, of course, there is no authority which binds this Court in relation to the interpretation of these sections. So it’s the standard tabular answer as far as this Court is concerned and, of course, anything can be said, regardless of the fact that there are many decisions of the
30 Court of Appeal.
Now, the respondent has taken a somewhat technical line as its initial approach to the case, pointing out that the decision that was actually appealed wasn’t specifically the decision where security for costs was ordered, but the way in which both
35 Justice Venning and the Court of Appeal have approached the matter is to deal with
the matter as one of an appeal against the ordering of security and that’s, in fact, how
the questions in this Court were framed as well. So, that’s the only basis on which I
have addressed the technical issues before the Court.
There are, of course, two questions, the first relating to whether s 67 applied, in the
5 circumstances, and secondly whether s 66 was applicable. As far as s 67 is concerned, the parties are agreed that the section is not relevant to this type of case because it’s not in the nature of a second appeal. It was a matter which arose in the High Court for the first time and the wording of the section does not appear to apply to that sort of situation. That is the conclusion which was reached by
10 Justice Richardson in the Court of Appeal in Murphy v Murphy [1988] NZCA 193; [1989] 1 NZLR 204
(CA), and although there had been variance on that approach that does appear to be the way in which the section ought to be read. It’s one of those situations, though, where a clear ruling from this Court is required in order to establish what the true interpretation of the section is.
15
As far as the second question is concerned, the right of appeal under s 66, my submission is that in terms of the wording used in the section it simply cannot be limited to appeals from interlocutory decisions in exceptional cases. That would appear to place a gloss on the section which simply can’t be justified. The way in
20 which the section is worded appears to contemplate that any issues as to the
management of appeals or the types of appeals that ought to be brought or the way in which they ought to be bought should be dealt with by rules of court and that wording, I say, is what the Court ought to focus on in this case, and if that’s right, then the section ought to be interpreted such that there is a general right of appeal
25 from any order of the High Court, including interlocutory orders, and that proper
management of those appeals should be regulated by rules rather than by attempting to limit the interpretation of the section. Now, there have, over the years, been a number of diverse rulings relating to s 66 as to whether it does apply to all interlocutory appeals, or to some interlocutory appeals, or to some interlocutory
30 appeals in certain cases, and as a result there’s something of a muddle as to what
the correct position is. So, once again, a clear steer from this Court is required.
TIPPING J:
Your answer –
35
BLANCHARD J:
What rules have actually been provided, are there any?
MR BECK:
No, there are no specific rules dealing with interlocutory appeals.
BLANCHARD J:
5 And what kinds of things do you say that s 66 would permit the making of rules for? I mean could, presumably, it wouldn’t be possible to have a rule which said that you could not appeal a particular type of interlocutory order –
MR BECK:
10 Yes.
BLANCHARD J:
Because it’s merely dealing with regulating?
15 MR BECK:
Yes, I say that the jurisdiction is there and therefore the Court can’t, itself, take it
away, but –
BLANCHARD J:
20 What I'm interested in is what could be done if the Court were to agree with –
MR BECK:
Yes.
25 BLANCHARD J:
– the view you’re expressing.
MR BECK:
The one possibility obviously is a leave requirement and –
30
ELIAS CJ:
Well, how could that be imposed by rules if the statute doesn’t require it?
MR BECK:
35 Well, the rules talk about, sorry, the statute talks about “terms and conditions” for, I
think –
ELIAS CJ:
Hammond, is it?
BLANCHARD J:
5 Terms and conditions.
ELIAS CJ:
Terms and conditions.
10 BLANCHARD J:
Regulating terms and conditions.
ELIAS CJ:
Yes.
15
MR BECK:
Now, when it says –
TIPPING J:
20 What does “allowed” mean?
MR BECK:
When it says “allowed”, I don’t think it means succeed, but how those appeals are to
be –
25
BLANCHARD J:
Permitted?
MR BECK:
30 Yes.
WILLIAM YOUNG J:
The Court of Appeals Rules will be made under this section, aren’t they, current
rules, Court of Appeal (Civil) Rules –
35
MR BECK:
Yes.
WILLIAM YOUNG J:
– will be made under this?
MR BECK:
WILLIAM YOUNG J:
But wouldn’t it be under this, under s 66?
10
MR BECK:
I think the – it says pursuant to the Act, I think it’s the general, the general rule- making power that’s relied on, but this section obviously allows rules to cover those regulating the terms and conditions.
15
TIPPING J:
But as my brother had said, the word “regulating”, which governs what follows –
MR BECK:
20 Yes.
TIPPING J:
Cannot, I would’ve thought, be construed as restricting or prohibiting either absolutely
or, I would think, by leave. I’d very much doubt whether regulating the terms and
25 conditions, et cetera, would allow a leave filter.
BLANCHARD J:
But it – I’m really intrigued as to what the rules could do.
30 ELIAS CJ:
Well, they could say that some interlocutory appeals will only be heard ahead of a substantive appeal by leave, for example.
TIPPING J:
35 And be heard on the papers?
ELIAS CJ:
Yes.
MR BECK:
5 That’s certainly a possibility. The only – I was going to say, the only rule that I’m aware of that’s been made affecting this was a time rule under the 1955 Rules, where interlocutory appeals were subject to a shorter –
TIPPING J:
10 Yes. It was six weeks, wasn’t it?
MR BECK:
– shorter time limit.
15 TIPPING J:
Yes.
MR BECK:
Which caused its own problems to some degree, because then you get a debate as
20 to the timing, but the idea of not hearing the appeal in advance of the substantive matter is certainly something that the Court has the power to deal with, and I think that’s one area that perhaps hasn’t been focused on sufficiently where the Court has said we’ve got to deal with the possibility that there may be disruption. It doesn’t mean you have to say there’s no appeal right, but it’s a question as to when, when
25 the appeal should proceed.
TIPPING J:
Well, the fact that you’ve got, have leave in s 67, admittedly in a different context, would tend to suggest that regulating is something short of imposing a leave filter.
30 That might be a little far-fetched perhaps but –
MR BECK:
Well, I’m just – you’ve got a leave requirement for the decisions of Associate Judges as well and for commercial list matters. Those are all leave requirements that are
35 imposed by the statute.
TIPPING J:
But they’re by statute.
MR BECK:
5 That’s correct.
McGRATH J:
Is it arguable that s 67 is an instance of regulating terms and conditions on which
appeals shall be allowed that’s picked up on in the words “the provisions of this Act”
10 in s 66? Is that – is it a type of provision that’s signalled in the words “provisions of this Act”?
MR BECK:
I’m not sure whether that’s right. I mean, that’s obviously a specific provision, so it’s
15 covered under the “subject to the Act” provision, but it’s possible it could be seen as
a way of regulating it.
ELIAS CJ:
The difference between the two is partly, one would have thought, accounted for by
20 the fact that inferior courts are amenable to judicial review so that one can see that you would be more restrictive about appeals than in the case of decisions from the High Court.
MR BECK:
25 That – I mean, that’s – I suppose that is a – there’s a reason why you might interpret
it in a more restrictive way. I’m not sure –
ELIAS CJ:
Although the other view also is that it’s simply for second appeals.
30
MR BECK:
Which – yes, I mean, which is I suppose a general view that a second appeal –
ELIAS CJ:
35 Yes.
MR BECK:
– is less readily available.
ELIAS CJ:
5 Yes.
MR BECK:
I mean, that’s not, certainly not a universal rule, but that has been explained, or the explanation given for s 67 in a number of cases.
10
ELIAS CJ:
But there’s no ability – what I suppose I’m saying is there’s no ability to correct error
except through appeal from –
15 MR BECK:
The High Court. I mean, that’s absolutely right, your Honour.
ELIAS CJ:
– in the High Court, yes.
20
MR BECK:
If the appeal right is taken away from situations such as this one, it simply means that there’s no way of dealing with a wrong decision, and that, I say, is certainly repugnant to the idea of general accountability of the judiciary.
25
TIPPING J:
Isn’t there something in the Bill of Rights about “entitled to an appeal”?
MR BECK:
30 Well, you’re entitled to review in accordance with law, which –
TIPPING J:
But there’s a presumption that you can have at least one go from any –
35 WILLIAM YOUNG J:
There is for crime. It’s specifically in terms of appeal in terms of crime.
TIPPING J:
Is there?
ELIAS CJ:
5 But there is the –
WILLIAM YOUNG J:
This is s 27.
10 ELIAS CJ:
Section 27.
MR BECK:
Yes, I mean, s 27 does talk about that, that right of review, which the courts have
15 interpreted broadly, as would include an appeal, but it –
TIPPING J:
But it would mean perhaps that if there was no ability to appeal from an interlocutory decision other than through a filter of exceptionality or whatever, that might not be
20 consistent with at least the spirit of that section.
MR BECK:
Well, I mean, I suppose that that’s correct in a sense of “in accordance with law” so
you’ve got a way out, but the idea is there is an ability to challenge, or at least have a
25 decision looked at again, at least in the, for one level.
TIPPING J:
Well, it suggests that the law must provide for at least one ability to review. Maybe
I’m being a bit ambitious but –
30
ELIAS CJ:
Everyone whose rights and interests are affected by a determination is entitled to review, so if the first decision is of the High Court, it would be consistent with that that there is a right of appeal.
35
MR BECK:
I think that’s exactly right, your Honour. It would be consistent with that provision in s 27.
5 TIPPING J:
And that bears on the correct interpretation of s 66 through s 6 of the Bill of Rights.
MR BECK:
Well, you could certainly say if you take away the only right then you – well, I don’t
10 know whether it’s actually inconsistent but it appears to be going against the spirit of
what s 27 is aimed at, yes, I think that’s right, your Honour.
McGRATH J:
Just while you’re pausing, Mr Beck, can I just ask you, could you help me with this?
15 When they talk about in s 66 “such rules and orders”, does “orders” in the Judicature
Act have a particular technical meaning?
MR BECK:
Now that wasn’t –
20
WILLIAM YOUNG J:
Isn’t it a reference back to the style of the English Rules of Court that are by way of
order?
25 McGRATH J:
Okay.
WILLIAM YOUNG J:
I’m pretty sure that this is the power that has been invoked in relation to the Court of
30 Appeal Rules, that the terms and conditions may contemplate how big the paper is,
what the margins are, whether there’s a filing fee payable, time limits.
MR BECK:
So your Honour’s suggesting that even leave is going too far for that?
35
WILLIAM YOUNG J:
I would have thought that if the Act says that someone can appeal, it’s pretty hard to read a regulating power as saying, “No, you can’t, not until you’ve got leave”.
5 TIPPING J:
Mmm, I agree with that.
BLANCHARD J:
Those cases that we all had to study at law school about the difference between
10 prohibiting and regulating come to mind.
MR BECK:
Well, I suppose it is, it limits access in one sense if you’ve got a leave requirement so
that the question as to how far you can go in terms of regulating becomes a rather
15 difficult one, and –
TIPPING J:
Well, didn’t we have a case recently where we said that the right of appeal criminally couldn’t be cut back by rules? What was the name of it? Where the Court of Appeal
20 had purported to dismiss a criminal appeal procedurally.
WILLIAM YOUNG J:
Is that –
25 BLANCHARD J:
Petryszick.
ELIAS CJ:
Petryszick.
30
TIPPING J:
Petryszick v R [2010] NZSC 105, [2011] 1 NZLR 153. Yes, well, I just thought that would be tending in the same direction too.
35 MR BECK:
Certainly one’s got a legislative provision which appears to confer a general right and then to take it away in a material respect rather than simply imposing a form or
procedural requirements does appear to be something that’s not contemplated by the
legislation.
WILLIAM YOUNG J:
5 Mr Beck, if s 67(1) started, “A decision of the High Court on appeal” –
ELIAS CJ:
Sorry, which one?
10 WILLIAM YOUNG J:
Section 67 – had started with “a” instead of “the”, it would be pretty easy to treat that as encompassing an interlocutory decision, wouldn’t it? It is a decision made in the course of proceedings on appeal from –
15 MR BECK:
It’s – I mean, it does become easier to do it in that –
WILLIAM YOUNG J:
The word “the” makes, suggests that the legislature had –
20
MR BECK:
The substantive –
WILLIAM YOUNG J:
25 – the substantive determination in mind, but if one’s got to get a review and get a Bill of Rights-compliant solution to the conundrum, one way would be to treat this as a right of any decision involving a s 67 situation can be brought but only with leave.
ELIAS CJ:
30 But isn’t the point that what we have here is not a decision on appeal from the
District Court?
WILLIAM YOUNG J:
Well, there is a decision –
35
ELIAS CJ:
We have a decision of the High Court exercising its jurisdiction to –
WILLIAM YOUNG J:
Well, it depends on whether you read, whether you – s 67(1) most naturally reads in the way Mr Beck’s put it. That it is dealing with the substantive decision which is itself reviewing the decision of the inferior court. A way of construing it which would
5 enable decisions of this sort to be reviewed would be to treat it as encompassing a
decision made in the course of appeals, an appeal from the District Court.
ELIAS CJ:
But it is the decision of the High Court exercising its jurisdiction – not in a review of
10 the District Court.
MR BECK:
I mean, in a sense, it is fortuitous that it happens to be in relation to an appeal but I
mean, your Honour is quite right, it could be construed as a decision in the –
15
WILLIAM YOUNG J:
And in this case, there was a dismissal of the appeal, which was the subject, in fact, was the subject of the application for leave to appeal to the Court of Appeal and in the course of that appeal, had leave been granted, it would have been possible to
20 review the appropriateness of the security for costs order. That’s correct isn’t it, I
mean that is a correct view of the situation.
MR BECK:
That there was a –
25
WILLIAM YOUNG J:
There was an application for leave to appeal, addressed not formally to the security order but rather to the dismissal, that had leave been granted, the appeal could have proceeded on a basis which challenged the appropriateness of the security for costs.
30 MR BECK:
I think that is correct, it would have come into that decision, yes.
WILLIAM YOUNG J:
From Mr Siemer’s point of view, it is not entirely satisfactory because he would be
35 taking, he couldn’t challenge the order for security for costs, without taking the risk
that his appeal is going to be struck out, if he lost the security for costs issue.
TIPPING J:
It would be rather an artificial way of getting the costs matter to the court above.
WILLIAM YOUNG J:
5 Well in the adjournment cases, the view tends to be that it is a pretty fudgy, smudgy, but if the adjournment is wrongly refused and the judgment goes against the party who didn’t get the adjournment, well then an appeal against the substantive judgment can address what has gone before.
10 BLANCHARD J:
Well that is a general principle. Which we have referred to in one of our earlier decisions.
WILLIAM YOUNG J:
15 So I agree it is not the easiest of readings of the section but it would, in fact within the statutory scheme, give a right to challenge. Not an ideal right to challenge but there would be a right to challenge.
MR BECK:
20 Yes, the one question that arises as to why there is a leave provision in that case where, I mean the courts have said the leave is because you’ve already had one go.
TIPPING J:
You have had two goes by that stage.
25
MR BECK:
So there is no real reason to have a leave requirement where you are simply changing an order made by the High Court, from a policy point of view.
YOUNG J:
30 There is the conundrum that the Court of Appeal is gagged on, why would you have an unrestricted right of appeal from the interlocutory decision but only a strictured right of appeal from the substantive decision.
MR BECK:
35 I don’t know why they find that such a difficult concept to deal with, because it is very obviously explicable that there may be an outrageous interlocutory decision by the
High Court, which has nothing at all to do with the merits. In fact, I think that Justice Chambers got it right in his decision of the Friends of Pakiri Beach v McCallum Bros Ltd [2008] 2 NZLR 649 (CA) case, where he goes on to explain why you can appeal a costs order even though you would need leave for the substantive, but because
5 you have that possibility of an order that needs direction.
TIPPING J:
Myself, I don’t see the problem because the policy considerations are quite different.
The one is, once you have had two goes, you have to have leave for a third.
10
MR BECK:
Yes.
ELIAS CJ:
15 And there is s 27.
MR BECK:
Yes and, so that is the reason against Justice Young’s interpreting “the” as “a”
because you really impose an additional leave requirement without there being a
20 sound policy basis for doing that.
TIPPING J:
You’re really saying to us, I think Mr Beck, cutting it down to its essentials, that there
is no proper basis and indeed it’s perhaps inimical to the Bill of Rights point to read
25 down the plain terms of s 66.
MR BECK:
That’s correct, your Honour, and I say the only reason that the Court of Appeal has done it is essentially a fear of –
30
TIPPING J:
A case management –
MR BECK:
35 Well, it’s a case management issue and they’ve attempted to resolve a case
management issue by adopting a restrictive interpretation of the section, but which,
it’s created its own problems, because the boundaries are so difficult to define and it
bulges out in all sorts of strange areas.
TIPPING J:
5 Well, it’s probably creating as many arguments as reading it simply will cause.
MR BECK:
Yes.
10 TIPPING J:
In other words, there’s no net gain.
MR BECK:
Yes, well, I think that’s correct, your Honour, and I think the Court also has that
15 power, which I mentioned, to decide when it will hear the appeal, which is the answer to the question about disrupting trials or not allowing appeals against evidential points or whatever that’s raised, simply say, “Well, yes, sure you can appeal but not now”, and that’s really a stay question rather than an appeal question. It accepts that, yeah, the decision must be able to be reviewed, but not necessarily right, right
20 now, and that’s the case management issue, and I would submit that’s the way it can
be properly be dealt with rather than simply saying, you don’t actually get a chance to
say this decision was wrong.
ELIAS CJ:
25 Or you don’t get a right to say this –
MR BECK:
A right, yes, and the – in some cases it’s very easy to say, well, we can deal with, we can deal with that later because it’s not conclusive, and with the security, with the
30 security issue, that’s not really the case, it’s much harder to say.
TIPPING J:
Well, it may be conclusive, because if it’s too hard, you don’t pay, your appeal is
gone.
35
MR BECK:
I mean that’s right, so the effect of a security decision is potentially to cut the matter off at the knees, which is why I say that Justice Venning was wrong to say that, even if it was one of those sort of appeals where we might allow it, this didn’t fall into that
5 category, so that’s mischaracterising the way in which an order works and in fact the
– while the respondent takes, takes issue with it, I say the fact that the Court hasn’t really ever seemed to find a problem with hearing appeals from security matters, indicates that it considers there ought to be a – that’s not an issue for it, that it’s properly a matter that ought to be considered on appeal.
10
TIPPING J:
I think the fear has always been that if you read it the way you’re proposing, you’ll have all sorts of appeals, as of right, that are going to not only cause trouble in the Court of Appeal, but cause trouble for the course of, progress of trials.
15
MR BECK:
Yes.
TIPPING J:
20 But the way you handle that, as you’ve suggested is, that you don’t absolutely get a
right to a hearing of your appeal.
MR BECK:
Well, that’s correct, and that’s –
25
ELIAS CJ:
Well, a hearing before trial.
TIPPING J:
30 A hearing before substant – before, or in the course of trial, you may get it later. If
you need it and sometimes you don’t need it –
ELIAS CJ:
Often it’ll be overtaken.
35
TIPPING J:
– you won’t win.
MR BECK:
Yes. I mean that did, of course, require some judgement as to how important it is to hear the matter immediately, but it does preserve that right to have had the decision reviewed by a higher court, which I think is what is contemplated by the section.
5
ELIAS CJ:
So, a rule adopted which gave leave, which required leave to get your hearing on before the substantive hearing, would be – will, in fact, operate as we operate our leave provision in interlocutory or pre-trial matters. We’re quite keen not to grant
10 leave where –
MR BECK:
Yes.
15 ELIAS CJ:
– in fact the gravamen of the appeal will be able to be dealt with, should it be necessary.
BLANCHARD J:
20 You mightn’t even need a rule. The court could probably do it itself.
ELIAS CJ:
Yes, just on its case management.
25 BLANCHARD J:
Because it’s not denying a hearing in the end, if it’s necessary.
ELIAS CJ:
Yes.
30
MR BECK:
Yes, and in fact, I mean the Court of Appeal has done that, interestingly in the W case (Attorney-General v W (2007) 18 PRNZ 673 (CA)), the decision by Justice Wilson, that was the result there, was the Court said, “Right, we don’t think
35 these are exceptional matters that need to be determined now”, and they simply
adjourned the appeals, which is effectively to do what I say the section contemplates,
saying, “Yes, yes, you do have a right of appeal, but we’re not actually going to hear
it now, it’s not required that we hear it at this stage”.
McGRATH J:
5 Even though the right might be rendered nugatory as a result of that?
MR BECK:
That’s why I say you have to be careful as to which appeals you say we will hear now and won’t hear now.
10
ELIAS CJ:
Well, that’d be a wrong principle, prima facie, wouldn’t it, if the Appeal Court said,
“We won’t entertain this”, and it was going to render the appeal –
15 MR BECK:
Yes, I mean it’s very like a stay, stay, stay decision.
ELIAS CJ:
Yes, yes.
20
MR BECK:
So there does have to be some careful judgement exercise, it shouldn’t be an automatic response “that’s just an interlocutory, you can raise it later”, and it’s sometimes the easy response to raise, because what looks important may turn out to
25 be not important, but what looks unimportant to the court may also turn out to be
quite significant. So I do think there’s a careful process required there.
McGRATH J:
Well, yes, you say that, and it’s really what you’re saying, I think, is an overall
MR BECK:
Yes.
35
McGRATH J:
– to allow the appeal being heard.
MR BECK:
I think that’s right, that’s right.
McGRATH J:
MR BECK:
That, I don’t think there’s anything in the statute short of the terms and conditions
10 which you can put in rules, but the Court has a, I mean it has its general administrative power as to when it sets matters down for appeal and when it allocates a hearing date, so it has a large measure of that factual control at present.
ELIAS CJ:
15 The High Court too has control, but it needn’t mean that the filing of an appeal
doesn’t preclude carrying on with the hearing and the steps of the hearing.
MR BECK:
Well, that’s right, your Honour, as a matter of law it doesn’t stop the hearing going on,
20 so if you wanted to stop it you’d need to apply for a stay as well, in which case, I suppose, that’s where interests of justice would come in as a matter of principle. So, the High Court would have to say, “I'm not stopping this trial. If you want me to, you’re going to have to apply formally for a stay”.
25 McGRATH J:
And I will then consider whether in the interests of justice, the interests of justice, the interests of justice warrant granting a stay, so you’re right –
MR BECK:
30 Yes.
McGRATH J:
– to have your appeal heard, is upheld –
35 MR BECK:
Yes.
McGRATH J:
– or whether in all the circumstances justice does not indicate that result.
MR BECK:
5 Yes, yes, I think that is correct, your Honour, yeah.
BLANCHARD J:
It’s interesting that the opening words of s 66 talk about the Court having, the
Court of Appeal having jurisdiction and power to hear and determine appeals. It’s not
10 worded in a way which, from those words anyway, suggest that there’s a right of
appeal.
ELIAS CJ:
I think in Austin, whatever one it was, we said it was a right of appeal.
15
BLANCHARD J:
I'm sure it is –
TIPPING J:
20 I think it’s always been viewed as a right, because it’s in contradistinction to s 67.
BLANCHARD J:
Well, I think the general principle would require that reading. It’s just amusing in the strange way it’s worded. It’s a pretty unsatisfactory section.
25
MR BECK:
I mean it is unsatisfactory and it’s been like that since the start of the Judicature Acts, not much –
30 BLANCHARD J:
Well the longer it seems to go back to 1880, 1882.
MR BECK:
Yes. So, it’s not something to which recent, recent consideration is being given.
of course, which doesn’t arise here but has been regarded by the courts as
something different from a –
WILLIAM YOUNG J:
5 Why doesn’t it arise here?
MR BECK:
Well this wasn’t a case where leave to appeal a substantive decision was required.
10 WILLIAM YOUNG J:
But leave to, okay, well yes, but this is in – what the Court of Appeal was dealing with was an application for leave to appeal.
MR BECK:
WILLIAM YOUNG J:
I understand the point you are making. You don’t normally appeal the refusal of
20 leave.
MR BECK:
Yes, what I am saying is that it’s different from an ordinary decision order or decree of the High Court.
25
WILLIAM YOUNG J:
Well it can, there are one or two sections still, of appeal rights, which still provide an appeal can only be brought with the leave of the court appealed against.
30 MR BECK:
Yes.
WILLIAM YOUNG J:
And if you could treat the refusal of leave as itself giving rise to an appeal, well then
35 that position is rendered nugatory. That’s the logic.
MR BECK:
That is the argument that’s being raised and was considered in some detail in Simes v Tennant [2005] NZCA 80; (2005) 17 PRNZ 684 (CA) by the Court of Appeal, who decided that was different from an extension of time case. And I mean there is certainly a very
5 long history of treating that leave to appeal, substantive leave to appeal, as
something different from an ordinary decision of the court that would be subject to review, which I thought ought to be flagged simply as, if you look at s 66 as a general power, that may be something that follows from that. Well, if a court refuses leave, that’s a decision that does fall within the general power of s 66. And it may be that it
10 simply ought to be –
ELIAS CJ:
Well, if it is exercised on wrong principle, if undertaken by an inferior court, it could be amenable to judicial review, what is the harm? I know that people were worried
15 about floodgates, but it wouldn’t take long to sort it out would it?
MR BECK:
I suppose not. In many cases there is the right to seek leave from the higher court anyway, in which case the court would say that is really your proper approach, it
20 doesn’t make much difference in substance, because you are going to the higher
court anyway. But there are these decisions of the House of Lords, going back a long way, saying that is a special case so that is one of the reasons –
ELIAS CJ:
25 I can see that you wouldn’t entertain an appeal that was simply another go at running your argument as to why you should get leave, but if there had been, I don’t know, a breach of natural justice in some way which vitiated the decision, why shouldn’t you?
MR BECK:
30 And that is the point that arises in all these cases. If there is, in fact, something that requires attention, then it ought to be dealt with.
ELIAS CJ:
I mean there is an issue about whether it is appropriately dealt with as a matter of
35 jurisdiction, which it’s tended to be treated as, or whether it is appropriately dealt with by identifying when those appeals can succeed. When they are not simply getting around the refusal of leave.
MR BECK:
Yes. Unless your Honour has further questions, those are my submissions.
ELIAS CJ:
5 Thank you Mr Beck. Mr Siemer was there anything you wanted to add to that?
MR SIEMER:
Not particularly, your Honour. I think the only submissions I would make would be in strict response in rebuttal. I only avail myself to the Bench if there are any questions
10 in respect to my written submissions.
ELIAS CJ:
No, thank you Mr Siemer. Yes Mr Clarke?
15 MR CLARKE:
May it please the Court, with the greatest respect I believe this matter really will turn on, in this case, the particular kind of order that has been appealed against, and whether it is of a kind that is appealable as of right, and so I would like to propose to focus on the type of the security order in this case and then illustrate some of these
20 issues about policy and pragmatic reasons which suggest that this is not of a kind
that is appealable as of right.
I don’t propose to take you through the preliminary issue or s 67. You have the
respondent’s submissions on that.
25
On the first point, s 66, the way the cases have dealt with this is really to focus on the opening words in s 66, which is – what is the expression – “judgment, decree, or order”? And, of course, that expression is worded very broadly.
30 Amicus’s submission is that the Courts have treated that general right of appeal as a matter of case management or practice, but if that’s correct, that implies that the Court considered that it had the necessary jurisdiction in the first place, and that is echoed in Justice Wilson’s words in Attorney-General v W (2007) 18 PRNZ 673 (CA).
35 The respondent’s submission is that the courts have treated these limitations as a matter of jurisdiction and have limited these types of interlocutory appeals to exceptional cases for sound policy and pragmatic reasons, and if your Honours –
TIPPING J:
Does it matter how sound the reasons are if there is no power to limit?
MR CLARKE:
TIPPING J:
Well, I don’t understand, but you’ll no doubt help me, how you can interpret the word
10 “order” as meaning anything that’s other than “order”.
MR CLARKE:
Yes. In fact, one of the issues that came up before is how do we construe s 66, and two of the cases have said, well, both s 66 and s 67 must be read together.
15 For example, in the Dispensing Opticians of New Zealand Inc v The Opticians Board
[1999] NZCA 182; [2000] 1 NZLR 158; (1999) 13 PRNZ 599 case, the Court there emphasised the importance of the statutory context and said that was all-important. It said that s 66 qualifies the application of the section by continuing “save as hereinafter mentioned and subject to the provisions of this Act and to such rules as may be made”, and then
20 said, “Section 67 goes on to confine appeals from determinations of the High Court
on appeals from inferior courts to those where leave is given”, and therefore they’re saying the statutory context in the scheme of it is such that it should limit the types of appeals, and those two sections read together are effectively the filter.
25 TIPPING J:
How does s 67(1) limit the terms of s 66, in your submission?
MR CLARKE:
In my submission, s 67 is an example of a restriction on appeals from inferior courts,
30 and therefore ss 66 and 67 together show an intention by Parliament not to allow endless appeals on every interlocutory decision, and we also have s 24G of the Judicature Act which is another example of Parliament –
ELIAS CJ:
35 Sorry, which provision?
MR CLARKE:
Beg your pardon, s 24G of the Judicature Act, which provides that no appeal shall lie from interlocutory decisions in the commercial list.
5 ELIAS CJ:
Yes.
MR CLARKE:
But again the legislative context shows a policy that Parliament is intending a
10 restricted right of appeal.
ELIAS CJ:
Well, except that they’ve specifically referred to that one.
15 MR CLARKE:
Yes.
ELIAS CJ:
So a general approach to interpretation would say that s 66, not being so limited, is
20 outside that policy.
MR CLARKE:
Apart from those words, “save as in hereinafter provided by this Act”.
25 TIPPING J:
Well, that brings in s 67, which you’ve already addressed. Is there anything else?
MR CLARKE:
No, Sir, I think the issue is that if I understand the amicus correctly, counsel are
30 suggesting that s 66 has no limits and that it’s for Parliament to create rules either through subsidiary legislation in the form of court rules or through statutory amendments which have the effect of limiting any application is that is intended and, in my submission, the Courts have the power to interpret those words as they see fit and they have consistently and for good reasons limited the application of that
35 expression. The –
TIPPING J:
Sorry to be persistent, but the sections says, “any order of the High Court”. Now,
what we’re dealing with here is an order of the High Court, isn’t it?
5 MR CLARKE:
Well, Sir, arguably, possibly not, and the reason is the nature of s 74. Section 74 of the District Courts Act is a deeming provision which provides that if security for costs is not paid within the time limited, then that appeal is deemed abandoned. It does not require an order of the Court.
10
TIPPING J:
But that doesn’t require an order that it be abandoned, it doesn’t trench on the fact
that the original order for security to be paid is an order of the High Court, surely.
15 ELIAS CJ:
And s 74 provides for that because subs (1), I think, is the authority of the High Court
to set security for costs, isn’t it?
MR CLARKE:
20 It’s found in two places, both in s 74 and also in the High Court rules.
ELIAS CJ:
But the rules are subordinate to the legislation, and the jurisdiction of the Court to set security for cost on appeals, I had thought, was to be found in s 74(1) of the
25 District Courts Act.
MR CLARKE:
Yes, I accept that. The point I'm making, I suppose, is that the appeal was already deemed abandoned before Mr Siemer even appealed it, sought to appeal it.
30 Therefore, there was nothing that subsisted. It was open to Mr Siemer to appeal a
security order immediately after it happened, but that did not happen.
TIPPING J:
That doesn’t really trench on the point. We’ve given leave to argue the high-level
35 point.
MR CLARKE:
Yes.
TIPPING J:
5 That point may or may not be good. It doesn’t trench on what we’ve given leave to argue, has it, does it? You’re, in effect, trying to undermine the basis upon which leave was granted by saying – and you may have a valid point, but –
MR CLARKE:
10 Yes.
TIPPING J:
There are cases on whether you can appeal against an order for security for costs after the appeal is deemed abandoned and I can’t remember which way they go now.
15
MR CLARKE:
Yes.
TIPPING J:
20 But that point is not really alive in this Court, is it?
MR CLARKE:
Perhaps not, it was the basis on which the High – the respondents argued the
High Court refusal of leave application.
25
TIPPING J:
But the only reason we’ve given it leave is to resolve this awkward point of
interpretation.
30 MR CLARKE:
Yes.
TIPPING J:
And if your point would simply mean that that issue would fall away because there
35 was no jurisdiction to bring the original appeal.
MR CLARKE:
And that was the point the respondents took.
TIPPING J:
5 I know, but –
MR CLARKE:
And in the outset that this preliminary technical point is, in fact, I submit, a good point, which is that the Court of Appeal proceeded on the basis that Mr Siemer had, in fact,
10 appealed the security order and when, in fact, he hadn’t.
ELIAS CJ:
Well effectively it was treated as his having appealed from the fixing of security for costs.
15
MR CLARKE:
Yes.
ELIAS CJ:
20 All the way through.
MR CLARKE:
And on that point, the –
25 ELIAS CJ:
And I'm not sure, sorry, yes, carry on.
MR CLARKE:
Oh, I beg your pardon. I was going to say that one of the issues that concerns this
30 Court is the ability to challenge an order, and the fact that it’s an order made in the first instance at the High Court, and one of the issues there is that there are, in fact, many remedies that were available to someone in Mr Siemer’s position.
ELIAS CJ:
35 Can I just ask you, because I have s 74 in front of me: it occurs to me that, in fact, that the terms of s 74 may not prevent an appeal from the High Court. It may not
impose on the security for costs appeal. The time specified under the High Court
rules for compliance with an order for security for costs.
MR CLARKE:
5 Yes.
ELIAS CJ:
I'm sorry, I'm not sure that I put that very well.
10 MR CLARKE:
No, it’s – it omits any reference to the time limited for paying security and that is to be found in the High Court –
ELIAS CJ:
15 No, I understand that, but if you have the – if it is the case that the High Court determination, the basis for appeal, is in s 66, is the time limit in section – that’s expected from s 74, does that apply to an appeal from the High Court determination? Because s 72(2) presupposes non-compliance with an x stamped order for security for costs. What’s the time limit for appealing from an order of the High Court under
20 s 66?
WILLIAM YOUNG J:
Well, there won’t be a specific one, it’s in the Court of Appeal rules.
25 ELIAS CJ:
So, it’s three – used to be three months. It’s come down though, has it?
WILLIAM YOUNG J:
Yes, that date.
30
ELIAS CJ:
Yes, so that might, in fact, be the time limit that is relevant in any event.
MR CLARKE:
35 I see your point.
ELIAS CJ:
It may not be sound, what I'm saying –
MR CLARKE:
5 Yes.
ELIAS CJ:
– but it occurs to me that you should not assume that it’s not possible to unscramble this because the appeal against the security for costs doesn’t, itself, comply with the
10 payment under a valid order.
MR CLARKE:
Yes, yes, I accept that. The –
15 TIPPING J:
But can I come back to my point? Why is there, never mind time limits and abandonee abandonments and all that. Why is an order made by the High Court on an application for security for costs in an appeal from the District Court, not an order of the High Court?
20
MR CLARKE:
The question in this case is really that it’s in the nature of a directional case management ruling, and the courts have consistently held that that’s not the type of judgement, decree or order that comes within that expression. So, that’s an
25 interpretation issue.
ELIAS CJ:
I think, Mr Clarke, you have to convince us that those decisions are right.
30 MR CLARKE:
Yes.
ELIAS CJ:
And it may be necessary for you to take us to the cases that you’re particularly
MR CLARKE:
Yes, and I'm certainly trying my best to assist the Court. The cases, in fact, if one distils the principles from the established case law, in my submission they, in fact, have a general theme. The first is that in Re Alwinco Products Ltd [1985] 1 NZLR 710
5 (CA), the Court held that decisions that achieved no final disposal are not
appealable, so there’s an emphasis on determination of rights there. In Murphy, the reference was to decisions that lack any independent determinative effect, are not appealable, and they also, the Court also referred to no jurisdiction to appeal auxiliary matters. In Winstone Pulp International v Attorney-General (1999) 13 PRNZ
10 593 (CA) the Court said that only orders are appealable if they affect rights and
liabilities in exceptional cases. Again, the emphasis is on substantive rights. In Association of Dispensing Opticians of New Zealand Inc, of course, we have categories of interlocutories which range from purely ministerial, administrative procedural directions, through to obviously important substantive rights. In Attorney-
15 General v Howard [2010] NZCA 58; [2011] 1 NZLR 58 (CA) the Court referred to “substantive effects
on rights and liabilities”.
ELIAS CJ:
Where do they get that from, though?
20
MR CLARKE:
That is their interpretation based – and the reasons for that are expressed as – first of all reading those sections together, and policy and pragmatic reasons. In the Bevan-Smith v Reed Publishing (NZ) Ltd [2006] NZCA 85; (2006) 18 PRNZ 310 (CA) case they
25 referred to cases that were “irretrievably compromised”. So, in the respondent’s
submission, in fact, those cases do show a line of authority that is consistent and the emphasis is on, in terms of the continuum of types of orders of interlocutory orders, an emphasis on orders the affect substantive rights, as opposed to administrative rulings and directions, and I would like to take your Honours through some of the
30 policy and pragmatic reasons that if the Court were to adopt a broad interpretation of
that expression, what that might look like in practice. The policy and reasons are effectively a general theme of not too many appeals, and that’s aimed at trying to avoid clogging up the administration of justice. That was the reference in Alwinco, that the scarce resources of the appellate courts should not be wasted with endless
35 appeals, that Parliament could not have intended a sequence of appeals, such as the
present instant case, where we have an interlocutory order in the District Court, which is on appeal to the High Court and an appeal against an interlocutory order in
the High Court against an interlocutory order in the District Court, which has now found itself in the Supreme Court, so, a very clear expression in the cases that Parliament could not have intended a sequence of appeals like that. The fact, as your Honours have alluded to, is the fact that if we have these endless sequence of
5 appeals to intermediate and final appellate courts that it might disrupt proceedings in
the court of first instance or any appeals, and also another policy reason is that we’re now putting successful litigants to cost and delay and uncertainty. So, in my submission those are very sound policy reasons for the courts to have interpreted the expression narrowly. I would like to focus on the particular order in this case,
10 because I think it makes a difference in terms of the approach.
TIPPING J:
Mr Clarke, just before you do, there may be a point available to you, in answer to my
question about “Why is an order for security and that it’s High Court et cetera, not an
15 order?” Can I draw attention to s 74(1) of the District Courts Act which says, “Unless granted legal aid”, et cetera, “an appellant under section 72” – which is the general right of appeal to the High Court from the District Court – “an appellant under section 72 may be required by the High Court Rules to give the Registrar of the High Court security for costs”. I have a sort of vague funny feeling at the back of my
20 mind that there was something, a little note, does that arguably presuppose there’s
no actual order of the High Court? It’s just the registrar empowered by the rules. I
don’t know, I don’t know, but I think it’s something, power of “orders” of this kind.
ELIAS CJ:
25 But the requirement would have to be an order, surely.
TIPPING J:
Well, it may or may not be, but I just think we’ll need to deal with it.
30 WILLIAM YOUNG J:
Well I think the Judge did on the 27th of March 2009, make orders as to security.
MR CLARKE:
Yes, that’s correct, your Honour, we –
35
WILLIAM YOUNG J:
Do we have those? I've been looking for it.
MR CLARKE:
I certainly can make those available to your Honour. The – in fact, there will be a case on an appeal.
5 TIPPING J:
Was it an order made by a judge, not by the registrar?
ELIAS CJ:
Yes.
10
WILLIAM YOUNG J:
Oh, sorry, page 18, sorry, I'm –
MR CLARKE:
15 Yes, and that was – that order was extended, there was an application to extend or sorry, the Court extended a time for compliance with that. I think some of the issues may be dealt with in terms of the nature of the security for costs order and an appeal as opposed to security for costs and substantive proceedings, and, in my submission, there’s an important distinction there.
20
ELIAS CJ:
Sorry, what’s the rule? What’s the High Court rule that’s been applied here?
MR CLARKE:
25 Ah, 20.13 –
ELIAS CJ:
Is that 20.13?
30 MR CLARKE:
Yes.
ELIAS CJ:
“A Judge must fix security for costs at case management conference”, and there’s a
35 formula.
MR CLARKE:
Yes.
TIPPING J:
5 It’s starting to look a bit more like an order again.
ELIAS CJ:
I think it is an order.
10 MR CLARKE:
I would like to, though, illustrate the difference between an ordinary security for costs order and one on appeal, because I think there are important differences and also the consequences and the rights of remedy for an appellant who thinks that that is wrong. In a substantive proceeding, a security for cost order is made on formal
15 application, it is not in the High Court on appeal. It’s dealt with at a case management
conference which sometimes takes 15 minutes to run through all of the matters in the schedule. So there is no interlocutory application that comes within the definition of s 2 of the Judicature Act. In the –
20 ELIAS CJ:
Well if you don’t need an application because under this rule you must –
MR CLARKE:
Yes.
25
ELIAS CJ:
– the judge must.
WILLIAM YOUNG J:
ELIAS CJ:
Yes, yes.
35
WILLIAM YOUNG J:
– warrant the dispensing with security. But there is a judgment in that sense.
ELIAS CJ:
But there’s no need for an application by the –
WILLIAM YOUNG J:
5 No, no.
ELIAS CJ:
– respondent.
10 MR CLARKE:
And that’s my point, is there is quite a distinction in the way these two security for costs orders run. In a substantive proceeding there is a formal application, in the High Court on appeal there isn’t. First of all, back to a substantive –
15 ELIAS CJ:
But that can’t affect the status of what’s achieved by the requirement.
MR CLARKE:
My point is that they’re quite different, they’re quite different types of orders.
20
BLANCHARD J:
But they’re still orders.
MR CLARKE:
25 Yes, but it comes back to my preliminary point, which is that there is a good, there are good policy and pragmatic reasons to read that expression down to applying only to a particular kind of interlocutory order.
ELIAS CJ:
30 But the problem is that the legislature hasn’t done it in s 66. It might be perfectly sensible for it to do so, and those policy reasons are really directed at that point rather than the application or interpretation s 66, because how do you make it up?
MR CLARKE:
35 Yes.
TIPPING J:
I don’t understand how you can read “any order” as meaning “some orders”?
MR CLARKE:
5 Well –
WILLIAM YOUNG J:
Well I suppose one point, it plainly doesn’t encompass orders made in a criminal
case, so it’s never been construed completely literally.
10
ELIAS CJ:
Watch this space.
MR CLARKE:
15 If your Honour’s interpretation is correct then every single decision, every single time, is amenable to appeal.
ELIAS CJ:
Well, but what’s wrong with that? Because obviously if – a lot of these determinations
20 will be highly discretionary and the case law will establish very soon that there’s no purpose in taking an appeal unless the judge has gone wrong in principle, but if the judge has gone wrong in principle, what’s the objection to one appeal?
MR CLARKE:
25 Well, in this case, a security for costs order in an appeal is not highly discretionary, in
fact it’s very prescriptive, is a formula, it’s set at a low –
ELIAS CJ:
No the discretion is to do –
30
MR CLARKE:
To vary it.
ELIAS CJ:
35 – is – yes.
MR CLARKE:
So it’s not –
ELIAS CJ:
5 It’s a default position.
MR CLARKE:
Yes, exactly and this is again why I’m trying to distinguish between –
10 ELIAS CJ:
Yes I understand.
MR CLARKE:
– ordinary security for costs orders. Again it’s mandatory for the court to fix it unless
15 the judge considers otherwise. That’s again very different. There’s a formula, there’s a time period for compliance, and there’s a consequence which is a deemed abandonment, which is very different from a stay which will ordinarily apply. And the people who are entitled to security for costs are different in the substantive proceedings versus an appeal. So they’re quite different, and in my submission a
20 security for costs order of an appeal is one that requires effectively very little to be
plugged into the formula in order to get an order, and that’s why we don’t see, for instance, appeals against those decisions. I think also this leads me to discuss the issue about the anomalous result, and that’s borne out of the distinction between these two types of security orders. If we consider a normal substantive proceeding in
25 the High Court, a security order is made and arguably that plaintiff can appeal that to
the Court of Appeal because that’s the first exercise of discretion and that makes sense. But equally in that case, the judge can also hear an appeal on the substantive matter. And in a High Court appeal from a District Court matter, s 67 is normally construed narrowly, and that’s because you could appeal every timetabling and case
30 management ruling, direction or anything that comes within that broad word
“decision”, but you couldn’t appeal the substantive result, so you would end up with putting the cart before the horse. You’d have Court of Appeal decisions on all these minor procedural rulings, but no Court of Appeal decision on the substantive outcome, and that’s because of s 67, and that’s why, I think, the courts have read
35 these two sections together.
ELIAS CJ:
Well in many cases, though, that will mean that the security for costs point, or that the interlocutory determination, may be overtaken by the determination of the substance of appeal, but where you have security for costs as a pre-condition of
5 hearing your appeal, you don’t get through the gateway to have your appeal heard.
MR CLARKE:
And that perhaps brings me to, if I can say one further point, but I’d like to answer
that. The – what that would allow you to do is effectively have a District Court claim
ELIAS CJ:
Well what’s wrong with that? If, if the High Court judge in setting the security for
15 costs has gone off the rails –
BLANCHARD J:
There is the crucial difference that the interlocutory matters on the appeal have had one decision made on them, the final decision of the High Court is actually the
20 second decision on that matter.
MR CLARKE:
Yes, yes, I think there are two issues raised by your Honours that I want to deal with.
One is if it’s the first appeal are you left without a remedy if we apply s 66 in that way,
25 and the second issue is are you cutting off the appellant at the knees? On the first point, not left without a remedy – in fact there are lots of remedies in a security for costs on appeal matter. First of all you have an ability to apply to the court for dispensation. That didn’t happen in this case on a formal basis, there was a memorandum but no formal application.
30
ELIAS CJ:
But there was an application, it may not have been in the – what’s the point you're
making?
35 MR CLARKE:
My point is you're not left without a remedy. You don’t simply have security for costs
imposed and you have no right to address that. You have a right to address it before
it’s made, and you also have a right after, because at the case management conference you can ask for an extension of time, and there’s provision under 20.134. You have your normal right to apply to vary or rescind under the High Court Rules, r
7.49, and you can also bring a fresh appeal out of time, after it’s been deemed
5 abandoned, but obviously you’d need to have, you’d need to apply for leave to appeal out of time. And in fact in this case Mr Siemer has done some of those things. He’s sought to rescind the authority order twice before it expired and then also sought to rescind the refusal of leave application.
10 BLANCHARD J:
But all of those things involve applying to the very court that has made the decision, rather than to a higher court.
MR CLARKE:
15 Yes it does, but there are provisions in law where appeal rights are not allowed. For instance, we have strict compliance with the time limits for complying with statutory demand, and if you fail to comply the court has no power to extend it or to hear an appeal on that. There are many cases where the courts have strict limits on that. One of the differences –
20
ELIAS CJ:
Those are statutorily imposed though, aren’t they?
MR CLARKE:
25 Yes they are, and in this case the courts are saying there are policy reasons to take a similar approach and narrow the number of appeals that are filtering up.
TIPPING J:
Mr Clarke, if there is to be a limit on interlocutory appeals, in the circumstances we
30 are concerned with, it strikes me that it’s sounder in principle that Parliament imposes the limit than the judges do on some sort of ad hoc – well this isn’t quite important enough, or this isn’t exceptional enough or – very amorphous.
MR CLARKE:
35 Yes.
TIPPING J:
Well, what do you say to that?
MR CLARKE:
5 I don’t accept that the Court of Appeal has taken an ad hoc approach. In my view they’ve taken a very considered approach to what they say are the types of interlocutory orders that are susceptible to appeal. And, in fact, the emphasis is on the importance of the decisions and whether it affects the substantive rights of the parties.
10
TIPPING J:
Well it might do if the order to pay security for costs, you can’t do so –
MR CLARKE:
15 Yes.
TIPPING J:
– and your appeal is then deemed to be abandoned – nothing more, a very substantive there.
20
MR CLARKE:
Well I have two points in response to that. One is you still can bring a fresh appeal out of time, and the second is –
25 TIPPING J:
Well you then have to – I don’t see how that will help you. If you haven’t got the money the first time round, you’re not likely to have it the second time round.
MR CLARKE:
TIPPING J:
Well I’m looking at the genuine case.
35
MR CLARKE:
Yes.
TIPPING J:
I’m looking at the case where someone is ordered to pay security by a judge either for whatever reason, good or bad, it’s demonstrably too much. You lose your appeal rights.
5
MR CLARKE:
You lose your appeal rights, but the very nature of security for costs is exactly that. It stops proceedings from continuing.
10 TIPPING J:
Well I understand that.
ELIAS CJ:
Can I – sorry, just looking at the High Court Rules and looking at the waiver
15 provision, I see that they’re noted in McGechan, there are a number of decisions of the Court of Appeal supervising the exercise of the discretion to waive, so obviously there are – appeals get to the Court of Appeal from waiver decisions, well why should it be any different for the security, you know for the discretion exercise in setting the security for appeal?
20
MR CLARKE:
I’m not aware of the Court of Appeal decisions. I have included Bernard v Space
2000 Ltd (2001) 15 PRNZ 138 (HC), which is a High Court decision which –
25 ELIAS CJ:
Yes Bernard, I see it says here that that’s a Court of Appeal decision, is it not?
MR CLARKE:
It’s a High Court decision, your Honour, it’s at tab 1 of the respondents’ bundle.
30
ELIAS CJ:
Right well the references here are to Bernard v Space, which is said to be a Court of Appeal decision, and Tapp v Chief Executive of Department of Work and Income, Thimbleby v Accident Compensation Corporation –
35
MR CLARKE:
I have looked at those decisions, I –
ELIAS CJ:
Bernard v Space is 15 PRNZ 138.
TIPPING J:
5 That is the High Court.
ELIAS CJ:
It’s a High Court, okay. Maybe they’re all High Court decisions.
10 MR CLARKE:
Your Honour, the decision of Bernard v Space is in fact quite a useful decision, it’s at tab 1 of the respondents’ authorities, and it’s in the context of a waiver application and if I can refer your Honours to paragraphs [32] and [33]. It says that it’s a very high requirement to dispense with security for costs, but [33] is where I’d like to take
15 your Honours: “The purpose in requiring security for costs is to impose some restraint
on appeals by requiring that an ultimately successful respondent will receive some reimbursement for costs. The difficulty which arises is when an impecunious appellant cannot pay the security. The law acknowledges that any security should not cause a denial of justice, but this has to be tempered by the recognition that an
20 appellant is, by definition, a litigant whose case has been heard and found wanting.
The other side of the coin is that a respondent who is taken to appeal is, by definition, a successful litigant who will once again face costs.” And then the last sentence in paragraph [33], “Allied to this is the need to discourage worthless appeals which might otherwise be avoided by the requirement to provide security.” So there are
25 some very sound policy reasons to restrict the right of appeal and considerations
about access to justice are things that the courts have to consider and were considered in the District Court, the High Court and the Court of Appeal in this case. It’s effectively a balancing exercise and they recognise that the trial judge is best placed to make that evaluative judgement.
30
The other distinction with a security for costs of appeal order is that the underlying substantive rights of the parties are preserved. I accept the appeal has gone but the District Court proceedings remain stayed and the emphasis in all of the Court of Appeal decisions is about, does it affect your substantive rights –
35
TIPPING J:
Well, wait a moment. If your appeal right’s gone, the stay must be lifted automatically, mustn’t it?
5 WILLIAM YOUNG J:
But the stay’s there.
TIPPING J:
No –
10
WILLIAM YOUNG J:
The District Court claim is stayed because security hasn’t been provided. The
$20,000 security hasn’t been –
15 TIPPING J:
Are you talking – we may be at cross purposes. But if I have a judgment against me in the District Court, I want to appeal – that judgment may be stayed pending my appeal. I go to the High Court, my appeal in the High Court is deemed to be abandoned because I can’t or don’t pay security – surely the stay of the execution of
20 the District Court judgment against me must automatically go, mustn’t it?
MR CLARKE:
I don’t know if that necessarily follows, your Honour.
25 TIPPING J:
Well it would be crazy if it didn’t.
MR CLARKE:
Well that’s the position the respondents find themselves in, is that they have a
30 security for costs order in 2008, those – the substantive merits –
TIPPING J:
Well I think you should get on and sort that out, that just seems crazy.
35 MR CLARKE:
Yes.
TIPPING J:
If the appeal is deemed abandoned, it’s as if it never took place, there’s no basis for
a stay pending appeal.
5 WILLIAM YOUNG J:
Sorry – but the stay is the stay of the plaintiff, the plaintiff is currently subject to a stay in the District Court.
MR CLARKE:
10 This is a stay in the District Court not of the – a stay of the appeal.
TIPPING J:
I’m sorry, well I’m only concerned with the question of what happens if your appeal is
deemed to be abandoned in the High Court.
15
MR CLARKE:
Yes, I see, and –
TIPPING J:
20 Then there couldn’t possibly be a stay of the judgment that you're attacking.
MR CLARKE:
No, well I think this is why there is a difference between s 67, which talks about appeals from the District Court to the High Court can’t be appealed again, nor can
25 you appeal a refusal of leave, and I think what, what is exercising your Honours is
that if there’s a fresh decision made in the High Court, that you should at least have one right of appeal. But in this case what we can –
TIPPING J:
30 Well, what’s exercising me Mr Clarke is how you can respectively, and in accordance with law, read down the plain terms of s 66. That’s what’s exercising me, and nothing that’s been said so far, with respect, seems to me to give any basis for doing so. It may cause all sorts of difficulty –
35 MR CLARKE:
Yes, Sir, all I think all I can say in response is that the Court of Appeal has had a consistent line, which is basic policy.
TIPPING J:
I know, I know that. We wouldn’t be here otherwise.
MR CLARKE:
5 No, and I think the real remedy lies in statutory amendment.
TIPPING J:
Maybe.
10 BLANCHARD J:
Well it may do, but it may be that the real remedy lies first with this Court applying what might be thought to be the plain terms of s 66, and then if that proves to be inconvenient, the floodgates do in fact open, that can be attended to either by amendment to the statute or perhaps by rules.
15
MR CLARKE:
That obviously does open up the possibility of the floodgates argument, including on criminal appeals as well.
20 BLANCHARD J:
Why criminal appeals?
MR CLARKE:
Well why wouldn’t –
25
TIPPING J:
Didn’t we have a case called Mafart v Television New Zealand (No 2) CA92/05, 10
August 2006 and somebody or other?
30 TIPPING J:
Yes I think we’ve already – we’ve dealt with it.
MR CLARKE:
Yes, well, that would be the consequence of having a broad interpretation is
35 effectively the entire line of Court of Appeal decisions would be gone and the appellate courts would be faced with the prospect of appeals on directions, rulings, case management decisions, which –
BLANCHARD J:
Until that was attended to.
MR CLARKE:
5 Yes.
BLANCHARD J:
And maybe it should be attended to.
10 MR CLARKE:
Yes.
BLANCHARD J:
I mean, I have some sympathy for the position of the Court of Appeal, having been
15 there for some years, and no doubt the line of authorities in the Court of Appeal was borne out of a feeling that the Court needed to protect itself against the floodgates. I looked back nervously to see whether I was a party to any of them and was happy to find that I didn’t seem to be – at least not the ones put in front of this Court – but we have a slightly different perspective.
20
MR CLARKE:
Yes, I accept that.
TIPPING J:
25 And there’s the Bill of Rights, you haven’t said anything about that so far. Maybe there’s nothing much that can be said.
MR CLARKE:
I don’t know if I can address your Honour on that. The point is we have a 1908
30 statute which, I think it’s fair to say, is inadequate in its terms, but the courts’ role has been to try to give it meaning and make sense of it, and that is what it’s done in the Court of Appeal.
TIPPING J:
35 I would be with you if I honestly thought I could be, because I think it is highly difficult.
With my brother Blanchard I’ve been in the Court of Appeal, we all have. And we know what goes on, but it’s got to be on some proper legal basis.
MR CLARKE:
Yes all I can say in response, your Honour, is that the Court of Appeal has referred variously to policy and pragmatic reasons, and they have interpreted it by construing the sections together –
5
TIPPING J:
I understand your point.
MR CLARKE:
10 – and that’s all I can really say.
ELIAS CJ:
But they haven’t been entirely consistent, because there are cases where they have
permitted appeal because they think it’s necessary to entertain the appeal, and if you
15 start to think about where you draw the line, it’s very difficult to find a way of sifting things except through substantive court determinations which set out some precedents for the exercise of the jurisdiction.
MR CLARKE:
20 Yes, there are certainly some cases where –
ELIAS CJ:
And maybe rules for managing how the appeals are taken on.
25 MR CLARKE:
The Court of Appeal and the High Court have had to try to make sense of that by characterising or categorising those types of appeals –
ELIAS CJ:
30 Yes, yes.
MR CLARKE:
– to make sense of this rule, and certainly I accept it would be desirable to have statutory amendment. The Law Commission is looking at the Act at the moment and
35 that might be a possible reform.
ELIAS CJ:
Yes.
MR CLARKE:
ELIAS CJ:
It’s probably been made worse hasn’t it by modern case management because there
10 are some, because judges are making, routinely, an awful lot of orders which perhaps they weren’t in the past, they did it when the parties actually applied for an order.
MR CLARKE:
15 Yes, that is a good point. That – one of the reasons I was trying to distinguish between security for costs as an interlocutory application in the substantive proceedings and what happens at case management is that and what the Courts have said is that they couldn’t have construed – Parliament couldn’t have possibly intended to have every decision appealed and lead to a string of appeals such as we
20 have in the present case.
ELIAS CJ:
My problem is I can’t see on any basis that security for costs wouldn’t be subject to
one appeal, because it prevents the substantive appeal going ahead.
25
MR CLARKE:
Yes, but I think in terms of the remedy issue, the remedy is to be found in an application to vary or rescind.
30 TIPPING J:
Which if unsuccessful can’t be appealed.
MR CLARKE:
No, but as I’ve said there are other, many other orders and provisions that provide no
35 further rights of appeal or further chances that ... In this case, because we’re dealing with an appeal against an interlocutory decision coming out of an appeal of an interlocutory decision, the party’s substantive rights remain preserved. The
proceeding is extant, Mr Siemer’s case is not being prejudiced or his rights have not
been prejudiced, and the reason is these are procedural rules.
Your Honours I don’t – I’m not sure if I can assist you any further, those are my
5 submissions.
ELIAS CJ:
Thank you, Mr Clarke. Mr Siemer, did you want to be heard in reply?
10 MR SIEMER:
Yes Ma’am. It appears that we’re looking at – and I’m responding to the submissions of the respondents – we’re looking at an ad hoc approach by the Court of Appeal versus the plain terms of s 66, and while I didn’t gather that the respondent’s submissions have gained much traction with the Court on the point of law, I am a little
15 concerned that he was saying it doesn’t apply to this particular case. I think I’m going
to stick in response to that very point.
First of all, the context must be looked at, in the full context the appeal that was before Justice Venning in the High Court was a security for costs order in the District
20 Court of $20,000 for a half-day hearing. Now, the respondent said that it would take
a full day, but I think this goes to the very monstrous decision that was referred to from the Bench, and certainly your Honour the Chief Justice saying that if a judge goes off the rail, railing in respect of the security for costs, you certainly in my submission, this would qualify. I don’t know of another case where a District
25 Court judge has ordered $20,000 security for costs against somebody he recognises
was impecunious. We have here a situation in respect of Justice Venning’s security for costs order that they were in a state of flux. I think that’s been acknowledged by the respondents. He had extended it, it was in the form of a minute, so it was certainly an issue where the ambivalence in respect to how the Court treats it was
30 one that we wrestled with, in fact to pick up on something that Justice Blanchard said
earlier, that the right to challenge was in fact inhibited and not regulated. I say inhibited because the Court actually required the leave application be made first to the High Court and, of course, once that’s made that necessitates a leave application to the Court of Appeal so we have this escalating leave situation, when I agree that
35 under s 66 the direct right of appeal ought to have been available.
So what we have is not a case, as the respondents have put it, that you are putting a successful litigant through the delay and expense of an appeal. What you have is all the litigant has been successful at is denying elementary court access. The appeal of the $20,000 security for costs order was never heard, so we do not have a situation
5 that falls under s 67 that leave is required for the Court, but because the substantive
appeal was not heard and in fact denied, justice was denied and access to the Court was prevented – denied as well.
We know this, and of course this is under –
10
ELIAS CJ:
Sorry, because the substantive appeal was not heard because security for costs in the High Court was fixed?
15 MR SIEMER:
That’s exactly correct, your Honour.
ELIAS CJ:
Yes.
20
MR SIEMER:
What you have here is because the security for costs was not paid it actually prevented the appeal, so the natural justice component certainly is at issue, and in fact it’s underscored in my submissions by the approach that this Court took in
25 respect to the security for costs. The security for costs has been waived in this
appeal, and it’s roughly of the same level that, of security, that was in the High Court, so what we have here if the respondents –
ELIAS CJ:
30 We have a different jurisdiction, of course. We are looking at matters of general public interest, which does bear on the question on security for costs.
MR SIEMER:
I understand, your Honour, and I fully agree with that. In fact the respondents did say
35 that if the appeal itself is found wanting, that would be a basis for the Court to implement a security for costs where it might not otherwise. So I certainly agree, and I endorse that. That wasn’t the case here, and it’s quite clear the Judge did not look
at the merits of the – bona fides of the appeal itself, and had he done so Justice Venning would have, in my submissions, been left with no option but to determine that a $20,000 security for costs order in a simple common assault claim in the District Court for a half-day hearing is demonstrably unfair to anyone, let alone to
5 someone who is determined to be impecunious and operating on a fee waiver. It is
an effective closing of the door on that right of claim. And I, it’s my submission that this be very difficult for anyone to argue with that. So I agree with the Chief Justice in the approach that if the appeal was deemed to be wanting in the merits, then the judge has some latitude in the fixing of security for costs. But with all due respect,
10 the fixing of security for costs has been a dog’s breakfast in the High Court level and
we know that because there is the case where in contrast to this there’s one that
happened that same year Du Claire v Palmer HC Wellington CIV-2009-485-2638, 29
October 2010, where a working solicitor had security for costs waived in the interests of natural justice. And what is the distinction between that case and this case, where
15 the security for costs wasn’t waived and the appeal wasn’t allowed to proceed as a
result. That distinction was never addressed by the Court, and you have to wonder why. When there’s an inconsistency in the approach taken by a Court and it does fundamentally –
20 ELIAS CJ:
Well the merits weren’t heard, that’s really your submission.
MR SIEMER:
They weren’t considered. The bona fides of the appeal itself and without that
25 exercise it’s impossible, in my submission, for any security for costs order that prevents an appeal from being considered to be in conjunction with the rule of law and that’s – and I think, I think it’s fear mongering when the respondent says, “Well the floodgates are going to open” – I’ve heard that word several times today, “The floodgates are going to open, everybody’s going to be appealing”.
30
BLANCHARD J:
I think that was really from the Bench, and we were actually indicating that the
floodgates argument didn’t hold particular appeal to us.
35 MR SIEMER:
And I would agree with that, although I didn’t necessarily get that was an
overwhelming opinion of the Bench, so for that reason I would say that I believe that
it is fear mongering. Taylor v R determined that it is wrong for the Court to play fast and loose with the – play with the meaning of the law with the objective of basically managing a case load. There is certainly a time when the pragmatics must be looked at in respect to an appeal, but they cannot be, in my respectful submission,
5 without considering the bona fides of an appeal itself. And what we have here is the
situation that now this Court’s determined that a fee waiver of the – or security for costs of $1,000 was waived, but we still have, in a simple assault case which would require no more than a day of the District Court’s time, a security for costs order for
$20,000. That’s the crux of it, and this is what Justice Venning of the High Court
10 failed to address and the Court of Appeal failed to address. The inconsistency merely underscores the fundamental injustice in the access, the justice being denied when you compare it with a case such as Du Claire v Palmer at roughly the same time, where the Judge did go into a balancing exercise and obviously, despite the solicitor plaintiff’s ability to pay the security for costs, still waived it, so we actually have a
15 case where – I’m sorry I did not put that in the case file, and maybe I should have – is
that what the –
ELIAS CJ:
No, no, no I was – you're very astute to follow the moods of the Bench, Mr Siemer, I
20 was simply trying to find out from my colleagues whether they’re prepared to sit on
because we usually – yes, carry on.
BLANCHARD J:
However, Mr Siemer, you were drifting into arguing the merits, and we’re not really
25 concerned with that, we’re looking at the question of principle and in doing that we do
understand that there will be cases where an appeal will be meritorious.
MR SIEMER:
I understand the distinction your Honour’s making, but as I understand it there’s
30 actually two issues to which the Court is addressing, and one was summarised but the – I think Justice Tipping said he – the respondents’ counsel may or may not have made a good point in respect to whether the decision of the Court will apply to me, the appellant in this case, so there seems to be a diversion that creates two decisions of the Court. One is whether s 66 applies as a direct right of appeal to a
35 security for costs order where two recent decisions of the courts on the same
substantive matter have not occurred, and then secondly whether it applies to the appellant in particular. And of course –
BLANCHARD J:
We’re not really concerned whether it applies to the appellant in particular.
MR SIEMER:
5 So do I take it from that that the direction of the Court, that s 66 does apply, will, in effect, without any further recourse send it back to the High Court for an appeal determination?
BLANCHARD J:
10 Yes.
WILLIAM YOUNG J:
Well, no, there are some other issues. Can I just identify three issues which you
perhaps should address. An order for security for costs was made, wasn’t complied
15 with under the statute, and also perhaps pursuant to the unless order, the appeal was abandoned. So the High Court appeal at that point was no longer extant. Can you, after that happens, challenge an interlocutory decision that’s been made in those now abandoned proceedings? Secondly, what was before the Court of Appeal was an application for leave to appeal. Thirdly, against the dismissal, not a challenge
20 to the order for security for costs directly, although I accept that they are bound up
together. Thirdly, the judgment of the Court of Appeal under challenge is a refusal of
leave which we don’t have jurisdiction to entertain.
ELIAS CJ:
25 Sorry, what’s the third one?
WILLIAM YOUNG J:
Third, that the actual order made by the Court was a refusal of leave to appeal. So that there are issues associated with the appeal, at least to my mind, that may have
30 to be addressed irrespective of the big issue in terms of whether – as to how ss 66
and 67 operate.
BLANCHARD J:
I don’t think the last of those would be of much moment, I think it’s always possible to
35 challenge a declining of leave if the Court has gone wrong jurisdictionally.
WILLIAM YOUNG J:
I thought s 7, one of the sections in the Supreme Court Act, says that there isn’t –
BLANCHARD J:
WILLIAM YOUNG J:
Okay, well you –
10
ELIAS CJ:
I think we will have to take the adjournment, because Mr Siemer will have to respond to the questions that have been put. I’m sorry, I thought we might have concluded, Mr Siemer, but I think given those questions we will need a little more time, so we will
15 take the lunch adjournment.
MR SIEMER:
Thank you. If I could just get a clarification because I actually counted four.
20 ELIAS CJ:
Yes.
MR SIEMER:
There was the security for costs being complied with, and then first the technical
25 argument of the –
WILLIAM YOUNG J:
The first one was that the appeal to the High Court was deemed to be abandoned before the proposed appeal to the Court of Appeal was first mooted.
30
MR SIEMER:
And the second was that it was actually a leave to appeal.
WILLIAM YOUNG J:
ELIAS CJ:
Which we did in fact discuss these points with other counsel. You want to have Mr
Siemer’s response?
5 WILLIAM YOUNG J:
No, no, I’m just saying – he raised the question: “Am I right in assuming that if s 66 goes my way the case has to go back to the Court of – go back to the High Court”, and I’m responding to that.
10 MR SIEMER:
Which is the answer I’m getting is “not necessarily”?
ELIAS CJ:
Yes, it isn’t necessarily so. All right, we’ll take the lunch adjournment now.
MR SIEMER:
Good Afternoon. The issues that were raised just before the lunch break had to do
20 with the security for costs being complied with, in effect, the technical impediment might be that the security for costs has actually rendered the appeal dismissed before it was appealed, and the second one was that the leave, the appeal was the actual approached, so maybe I took the wrong approach in respect to what was endeavoured, that number three, that the Court of Appeal, at the Court of Appeal it
25 was not directly challenged, the security for costs were not directly challenged but
some superfluous legal argument which is not unsure, not clear and then, fourth, that the refusal of leave itself is not appealable to this Court, but I did get the sense that that fourth issue is not a live one before this Court, that that would not be reason for the –
30
WILLIAM YOUNG J:
I think if you could persuade me that the appeal to the Court of Appeal should have been treated as a substantive appeal against the security for costs decision, then it might be that one can treat the refusal of leave as though it were a dismissal of that
35 appeal.
MR SIEMER:
Well, that’s an easy one, your Honour, because I don’t have to convince you. It’s not resting on my shoulders. The Court of Appeal treated it as a substantive, and if you just turn to page 50, “Mr Siemer wishes to challenge an order for security for costs
5 made in the High Court”, so they understood the legal issue and that was that it was
a challenge for security for costs, so that’s – I hope that answers your Honour’s
question sufficiently so we can move on to the next on –
WILLIAM YOUNG J:
10 Well, it may do, I'm not sure though.
BLANCHARD J:
I'm not sure that it does either, although I think I'm on your side on this point, Mr Siemer, that they actually treated it as an application for leave to appeal, if you
15 look at page 53.
MR SIEMER:
Well, that’s true, but they understood the issue, there was –
20 BLANCHARD J:
Line 14, they said, para [14] on page 52.
MR SIEMER:
Yes, there is certainly two issues here. One is whether, in the one that’s before this
25 Court today for determination, is it directly appealable or must leave be applied for?
BLANCHARD J:
But the short point on your number 4, is that the Court of – if there is a right of appeal as of right, the fact that the Court of Appeal might purport to treat it unlawfully, as an
30 application for leave and dismiss it on that basis, can’t bar a further appeal to this
Court.
MR SIEMER:
Thank you, then I won’t address that.
35
WILLIAM YOUNG J:
Well I’d agree with that.
TIPPING J:
Yes, I agree with that too.
MR SIEMER:
5 I'm sorry?
TIPPING J:
I agree with that too.
10 MR SIEMER:
So everyone agrees with that, so I can not spend any more time on that, thank you. There is the issue which I think is more fundamental, and that is the approach of the Court with the approach undertaken to the Court was dictated by the Court itself and the fact that the High Court Judge was adamant that s 68, 66 did not apply, confirms
15 that. We have a situation here where the – well let’s look first at page, I've marked it
in the book here, the submissions on appeal, submissions of the appellant in its appeal, paragraph [14], we’re dealing with the law which says that – and where the Court of Appeal is in some conflict, the earlier rule that court directions which have a fundamental effect on the progress of a case are appealable and that’s from CA454,
20 it’s properly footnoted there 2009, NZCA 571. And then in Siemer v Korda Mentha
[2009] NZCA 624, the Court again emphasised the fundamental of financial justice when the Court engages in, “Setting a level of security which leads to the consequence of the appeal cannot proceed”. So this goes directly to Justice Young’s concern expressed at the onset, well, basically, you lost out on the appeal because
25 you didn’t pay the security for costs. Well, that’s a catch-22 argument in the
minimum, because if you – it’s a chicken in the egg, do you lose out in the appeal because you’re unable to pay it or because – or I think the respondents called a function of law –
30 BLANCHARD J:
I think the point being made against you, if I understand it, Mr Siemer, is that during the period fixed for the payment of the security for costs, which I think might’ve been originally 14 days, but got extended, let’s talk about the extended period, that during the extended period you neither paid the security nor did anything which can properly
35 be regarded as beginning an appeal.
MR SIEMER:
Well, I would beg to differ with you on that Justice Blanchard –
BLANCHARD J:
5 Well, no, I'm only, I'm only framing what the argument –
MR SIEMER:
I appreciate you raising it because it is not clear to this Court what the actual course of events were, Justice Venning actually issued the security for costs order, then
10 extended it, and then it was applied for a further extension or reconsideration, and
then that left no time to appeal, so there was no time left. It was not a function of anything else other than the ambivalence of how that was applied.
TIPPING J:
MR SIEMER:
Well, I did call the Court of Appeal and asked them –
20
TIPPING J:
Well, never mind ringing up the Court of Appeal, that’s –
ELIAS CJ:
25 What appears from Justice Venning’s decision of 29 March 2010, is that the unless
order took effect on 29 May 2009 and you filed an application for leave to appeal on
19 June 2009, so on that chronology, your leave to appeal, even if it should’ve been
treated as an appeal for the moment –
30 MR SIEMER:
Was in time?
ELIAS CJ:
– was filed in the High Court, was out of time, because the unless order, well, I guess
35 he means by that, took effect, that that’s when the s 74(2) order bit.
MR SIEMER:
Well, I think there’s a massive – over, overriding all this is a massive confusion. The question could be raised, “when is the security order not an order?” and the answer to that could be “when it’s a minute”. There’s been some discussion in the Court –
5
ELIAS CJ:
We’re just really trying to, leaving aside how it happened for the moment, just trying to get the dates –
10 MR SIEMER:
Well, I accept your Honour’s dates, that’s not an inordinate amount of time in my submission. It wasn’t – it didn’t cause any inordinate delay, no prejudice was caused as a result of it, so the only issue then comes down to the proper mechanism for the appeal, was there, you know, do you ask for an extension on a time after the fact or
15 do you talk to the Court of Appeal? This was, I had no reason to believe it wasn’t a
live issue. The Judge had extended it and had shown a propensity to at least visit it, and then at the last minute said no, so, we have an issue that it then comes down to what’s the appropriate mechanism to address it? It seems, and on this point I agree with Mr Clarke, if the Court is not going to be unnecessarily burdened, the
20 appellate court I'm talking about, with appeals of unreasonable decisions of the
High Court, shouldn’t it be the first port of call, logically speaking, if not legally, for the Judge to be allowed to address it. Now, the Judge appeared to be addressing it in some reason, but ultimately didn’t take into account the, what I submit, are the legal arguments.
25
ELIAS CJ:
That’s really, though, the – to go back into the merits of what you’ve been putting to us, what we’re concerned about is whether the substratum for any appeal has disappeared because your appeal from the District Court is deemed by statute to
30 have lapsed before you took any step that could be characterised, benignly, as an
appeal?
MR SIEMER:
That could be technically correct, but we can’t make an official one and follow the
35 other. The Judge, if I may, said unequivocally that s 66 did not apply, now this was an erroneous distinction from everything that’s been put before this Court today, so what you’re proposing is to hold the appellant, an unrepresented lay litigant, to higher
– go stand up from the Judge and do so in a situation where the Judge is there, has so fundamentally prevented the appeal, a first instance appeal, of a $20,000 security
for costs judgment –
5 ELIAS CJ:
I'm not sure that that’s a fair characterisation really, because you applied for leave to appeal under s 67. The Judge dealt with it on that basis, and as we’ve heard today, the authorities are all in some, maybe not in disarray about s 67, but certainly about s 66.
10
MR SIEMER:
Okay, then I would refer the Court to the page 39, which is Justice Venning’s judgment, and the Judge says that, “The order for security must be in that category,” and by that he means the exception to s 66.
15
BLANCHARD J:
Sorry, where are you reading from?
MR SIEMER:
20 Paragraph [32] on page 39 of the case in appeal.
BLANCHARD J:
Thank you.
25 MR SIEMER:
So, what we have here is the Judge saying, “The order for security must be in that category”, which means not in s 66. “It cannot be the case an appellant could exercise a general right of appeal under s 66 from the interlocutory orders made during the course of case management conferences, relating to appeals from the
30 District Court to challenge and timetable other orders” – orders, I emphasise that
word – “made before the hearing of the substantive appeal. I conclude there is no right of appeal under s 66”. So, again, the Judge, if I'm to get the sense of what this Court is deciding today, has gone down an erroneous path, much more fundamental than that of – whether it was appropriate for the appellant to follow ss 66 or 67. In
35 fact, he’s made it clear that s 66 wouldn’t be accepted, and that was the sentiment of
the Court, so on this we have the Registrar and the High Court Judge agreeing that there was no right of appeal. Now this Court is –
ELIAS CJ:
Just pause just a moment, because we’re straying back a little bit here. The point really that’s being put to you is that when Justice Venning made – issued this judgment, there was no underlying appeal left, it had gone by operation of statute.
5
MR SIEMER:
What I’m saying is as a function of law is the Judge and the Registrar were wrong, so you're asking the lay litigant appellant in a situation where they said it wasn’t directly appealable –
10
ELIAS CJ:
No, I understand all of that, but this is as at this judgment 29 March, even if he was
wrong the argument that’s being put to you is that it made no difference.
15 MR SIEMER:
Well, that’s a very technical argument, it certainly doesn’t recognise the injustice
which has occurred when a first instance to the appeal –
BLANCHARD J:
20 The problem, Mr Siemer, may be this – that if this was a rule invented by the judges, the judges would be able to say, oh well it doesn’t apply in a situation like this because it would work unfairly. The problem is that if Parliament in the District Courts Act, which says if security is not given within the time required by the High Court Rules – and that includes any extension – the appellant’s appeal must be treated as
25 having been abandoned. Now we might be able to say that you read that subject to
any appeal which has been lodged before the point at which there would be the deemed abandonment, but it may be impossible for us to read it as covering an appeal for an application for leave to appeal which comes along afterwards, when the main appeal has already been statutorily treated as abandoned.
30
MR SIEMER:
Well again that goes back, Sir, with all due respect, to this Court, why we’re here – it’s been a dog’s breakfast, and I think we’ve all recognised without using the words that I’ve used, “dog’s breakfast”, that that’s, there’s been a tremendous amount of
35 inconsistency in the Court’s handling of security for costs and, fundamentally, to the
degree that it is – I accept it is the appellant’s responsibility or anybody who has a
security for costs to raise the appropriate arguments, but by the same token the
Judge needs to take on board and address in a reasoned decision the points, the valid points that are being brought to the Court in respect of that security for costs. This Court certainly did it, in fact we heard earlier that not only the financial situation of the appellant was considered but the merits of the appeal, the bona fides of the
5 appeal itself.
ELIAS CJ:
But the, we may well be able to clear up some of this area of law, but the question
we’re now exploring with you is, if we are with you on the s 66 interpretation, what’s
2009. I mean it may well be that it’s not – it’s only these proceedings that can’t be sent, sent back. You do have a continuing stay against you, and it may be that you would have to apply in the District Court for any relief from the order there, but what
15 we’re trying to grapple with is whether we can send back for hearing an interlocutory
appeal in a proceeding which has gone by virtue of the statute.
MR SIEMER:
Well, I wouldn’t put it in “by virtue of the statute”, I would put it more appropriately by
20 virtue of the mishandling at the lower courts level.
TIPPING J:
It’s got nothing to do with the mishandling, it’s to do with the statute –
25 MR SIEMER:
Well –
TIPPING J:
– it’s the statute that’s your problem. Without the statue you would have some room
30 to move, you’ve got to show us how we can get behind the statute.
MR SIEMER:
Okay. Well let’s turn to, if we can –
35 TIPPING J:
I mean unless you’ve got a clear argument, and you don’t seem to have looked at the
cases, which is understandable.
MR SIEMER:
Well, we have the inconsistent approach of the High Court and the ability –
TIPPING J:
5 No, no forget the High Court, forget it all. How can you get your appeal resurrected
in any shape or form if it’s deemed abandoned?
MR SIEMER:
Well, the Court has the power to correct a miscarriage of justice where the statutes
10 weren’t followed by the court.
BLANCHARD J:
Not if it’s contrary to the statute to make that correction, whatever we might think
about what we would otherwise do.
15
TIPPING J:
I might think, and I say hypothetically, that this is very tough luck, but the statute
doesn’t. And no Judge has done, it’s the statute.
20 MR SIEMER:
Well there is the statute that’s an overriding statute, and it’s the Bill of Rights. So we have s 27 –
ELIAS CJ:
25 You have to look at s 4. But I, what really – the point is, Mr Siemer, that even if we are with you on the s 66 argument, we think that what we’re exploring with you is that there seems to be an impediment as to what we could do as a result beyond saying what we think the law is which would have effect in future cases.
30 MR SIEMER:
Well, I think that in this case we look at the rule, what the rule of law is generally, and let’s look at the – if I direct the Court to the case authority again of – what do we mean by the rule of law and if we turn to page –
35 TIPPING J:
Obeying statutes.
MR SIEMER:
I’m sorry?
TIPPING J:
5 Obeying statutes is fundamental for the rule of law.
ELIAS CJ:
I really –
10 MR SIEMER:
Well that’s – I would submit that that’s equally applicable to the judges. If the judges
don’t abide by the statute –
TIPPING J:
15 We are, that’s what we’re saying – can you help us round this statute –
MR SIEMER:
Yes I was –
20 TIPPING J:
– if you can. It’s no use just fluting on about the rule of law.
MR SIEMER:
Well, we have a case where the Judges are just read – Justice Venning stated
TIPPING J:
It’s not the point.
30
MR SIEMER:
It has a direct bearing on the –
TIPPING J:
35 It’s not the point.
ELIAS CJ:
That’s the point on which I’m asking you to accept that we may well be with you.
BLANCHARD J:
5 Let’s assume for a moment that Justice Venning was wrong about that, and let’s assume that either s 66 or s 67 was available to you. The question is did you do anything before the point of when the statute deemed the appeal abandoned which could be regarded as having moved under either s 66 or s 67?
10 MR SIEMER:
I would say the answer to that, Justice Blanchard, is that the application before Justice Venning to look at the merits of appeal, which is required under s 27 but were ignored, was a live issue before the Court. It had no reason to suspect it wasn’t.
15 BLANCHARD J:
When did you do that?
ELIAS CJ:
It seems to be 19 June 2009, and Justice Venning is saying that the statute bit on 29
20 May. I’m not sure whether that’s correct or not, it’s just what I’m reading from the
judgment.
MR SIEMER:
I just need a second to look at the minute.
25
ELIAS CJ:
That’s fine. Mr Clarke did you have anything – could you shed any light on the chronology?
30 MR CLARKE:
Your Honour, I actually have a detailed chronology which I’m happy to hand up to –
ELIAS CJ:
Show it to Mr Siemer first.
35
MR SIEMER:
Well –
ELIAS CJ:
Yes, that’s right.
MR CLARKE:
5 With your leave I may tender the chronology.
ELIAS CJ:
Yes, thank you.
10 MR SIEMER:
Where there’s a lack of consistency, I think this Court agrees that the responsibility lies with the court, where that inconsistency originates with the court.
BLANCHARD J:
15 Well, come back to my question, please, did you do anything, prior to the point of deemed abandonment, which could be construed as either an appeal under s 66 or an attempt to appeal under s 67?
MR SIEMER:
20 What we have, your Honour, if you look at the chronology at the bottom, you have – I’ll start with the 1st of May, where – trusting Mr Clarke’s dates are correct – “Appellant fails to comply with the order for payment of security. On 8th of May the Court grants extension of time for paying security on 29th May.”
25 ELIAS CJ:
That’s a bit odd, isn’t it?
TIPPING J:
I think they coincide.
30
ELIAS CJ:
Oh.
TIPPING J:
35 I think the unless order was designed to coincide with the extended time for paying security.
ELIAS CJ:
Well, it’s a bit odd if there’s a – oh, I see.
BLANCHARD J:
TIPPING J:
Correct.
10
MR SIEMER:
So, on the 29th of May the appellant seeks to review the unless order. Now, there are some key elements to this, you may say that it’s dictated by statute, but the function of the Court and how it handles it must be considered the overriding consideration in
15 respect to any appellant.
BLANCHARD J:
What were you seeking in that review of the unless order?
20 MR SIEMER:
I was seeking to have the Court actually address it in the fashion of Du Claire v Palmer, which the Court never did. So, basically we have a Court that never looked at the benefice, never looked at the natural justice issues which Du Claire v Palmer compelled it to.
25
TIPPING J:
If you had got an extension of time from the 29th of May, you could be in business,
but you didn’t. So, the statute bit on the 12th or 11th of June.
30 MR SIEMER:
That’s right, Justice Tipping, but Justice Blanchard just asked me what have I, what I
did to try to forestay that.
TIPPING J:
35 But have you done anything? Did you do anything? That’s what he’s asking you.
Did you do anything between 29 May and whatever the date is in June?
MR SIEMER:
17th of June.
TIPPING J:
MR SIEMER:
Okay, we’re talking about less than three weeks’ time, that’s accepted –
10
TIPPING J:
Could you just answer the question?
MR SIEMER:
15 Absolutely, I did reply earlier, if your Honour would remember. I said that I called the
Registrar, and you said that was a hopeless exercise.
TIPPING J:
But that’s not bringing an appeal.
20
MR SIEMER:
Well, the proper mechanism, whether I needed leave or it was a direct right. Now, the Court of Appeal will say –
25 TIPPING J:
The rules are not different because you’re a litigant in person.
MR SIEMER:
No, I understand that, and I'm not asking them to be, I'm asking them to be
30 consistent and where they’re not consistent the Court has a duty.
TIPPING J:
So, the answer is, you didn’t file anything in the Court of Appeal between 29 May and
19 June?
35
MR SIEMER:
The Court of Appeal advised that they were not going to take a direct right of appeal on this.
5 TIPPING J:
Is the answer to the question you didn’t, never mind what you were told, that you
didn’t actually do it, file anything?
MR SIEMER:
10 The first action was on the 17th of June to the High Court. On the leave to appeal, which was on the instructions of the Registrar as well as confirmed by the Judge, who was under, obviously, the mistaken impression as s 67, 66 could not apply.
TIPPING J:
15 You just took the wrong course.
MR SIEMER:
Well, if I took the wrong course, you can understand where the road map was laid by
the Court itself. I mean that’s quite apparent in my submission that the Judge says,
20 he’s not equivocal, again, he says s 66 cannot apply. He doesn’t leave room for
interpretation. So, the – this takes us to look at, ah, the case authority, the rule of law
–
TIPPING J:
MR SIEMER:
Look, I'm not going to argue with this Court that we can’t find a technical way to
30 dismiss this appeal – I'm not – and say that applies to everybody but the appellant.
TIPPING J:
Well, however you characterise – I'm just asking you a simple question. Do you have any cases that deal with this issue?
35
MR SIEMER:
With the simple issue – very succinct technical issue of whether –
TIPPING J:
You can appeal on an appeal that’s deemed abandoned, lodging your appeal after
the deemed abandonment date?
5 MR SIEMER:
No, I don’t have that, but you can see it in answer to Justice Blanchard’s question again that actions were taken, this Court may not agree with them, but again it’s not the responsibility of the parties that appear before the court, but rather the responsibility of the court, to have a consistent set of rules, and the reason we are
10 here again is because the rules weren’t consistent, so you’re asking the appellant to
be mindful and predictive –
BLANCHARD J:
We can only deal with what Parliament gives us.
15
MR SIEMER:
Well, Justice Blanchard, you yourself said that you change the law not infrequently.
BLANCHARD J:
20 Well, yes, but we can’t change Parliamentary rules, unless we can find an
interpretation with your help that we can give it.
MR SIEMER:
Well, I tell you, here’s the rule of law, if we look at page, I believe, it’s – begins on
25 page 8, is the key characteristics of legal –
BLANCHARD J:
Sorry, page 8 of what?
30 MR SIEMER:
Of the case authority, what do we mean by the rule of law, by Justice Dyson Heydon of the High Court of Australia. The distinguished Judge draws on numerous authorities in backing this up, but he says, “There are six key characteristics of the rule of law. First, no person subject to the system is to be liable to criminal sanctions
35 or civil remedies unless that person has been adjudged to be in breach of rules
governing the system which are capable of being complied with. They do not require the impossible.” Security of cost was an impossible order. You can’t impose security
for costs and now that it’s in direct conflict with the decision of this Court, in this very hearing, this Court waived an equal level of security. You cannot have a court system, legal judicial system, that’s based on the rule of law and ignore a fundamental, and that’s the right to access to justice, so if this Court accepts that the
5 Judge, by virtue of his security for costs order, made an order that was incapable of
being followed, and I would say that the ruling in this very proceeding today confirms as much, then a miscarriage of justice under s 27 and a breach of the rights, acts as the court has occurred. The rules must not be so general, I'm looking at page 9 now, in the top –
10
ELIAS CJ:
You really don’t need to go back into this, Mr Siemer, we do understand these principles. It’s only, the only point that we’re exploring with you is the outcome, if we agree with all of that, and I think it’s probably as good as it’s going to get what you’ve
15 said to us so far and what Mr Clarke has provided, although we don’t have any
substantiation of these dates, which is a little bit awkward, and they don’t seem to quite coincide with what’s in Justice Venning’s judgment, but is there anything more you want to say to us on this point of –
20 MR SIEMER:
Yes.
ELIAS CJ:
Of the point about the outcome, if we agree with you?
25
MR SIEMER:
Yes, Your Honour, on page 9 it says, “The rules must not be so general as to create only vague discretions, future exercises of which are unpredictable because there are no criteria to guide and control their access on this. The rules say hi – must be
30 fixed and announced beforehand and must make it possible to first see with fair
certainty”, and it continues, “This is fundamentally what we’re here today –
ELIAS CJ:
Well we’ve got, we’ve got certainty in s 74. We’ve got a rule that the appeal is
MR SIEMER:
Well, the rule of law, it goes back to a security for costs issue. If this Court determines that s 66 applies, then we have an order that effectively killed the proceeding, it wasn’t the timeliness of it, it was the order itself. So, we have an order
5 of the Court which prevented an appeal from proceeding, a first instance appeal,
that’s a breach of natural to justice. Now, you can say, well, your hands are tied because the statute on this one technical aspect is so unwavering that you can’t, you can’t ignore it, but to ignore that means ignoring the fundamental rule of law and the other characteristics in respect to it, all of which apply, that the rules are published.
10 Well the whole process in the security for costs is this nebulous array of minutes.
ELIAS CJ:
All right, I think we really do understand that submission –
15 MR SIEMER:
Okay. Then thoroughly the rules are clear, the rules must be clear, and if the rules aren’t clear in respect to what a litigant must do and it’s obviously not clear to the court itself, because Justice Venning clearly got it wrong, and the lack of consistency
–
20
TIPPING J:
He only got it wrong if we overrule the decisions of the Court of Appeal on which he was relying – when he made his ruling, he was probably right. It’s just if we see it your way on the substance, he’s become wrong.
25
MR SIEMER:
Well that’s – that could be a fair point, but the fact of the matter is that the whole approach to security for costs was inconsistent. If this Court were to –
30 TIPPING J:
You’ve said that about 25 times.
MR SIEMER:
Well, but it’s a relevant point.
35
TIPPING J:
Yes, well, we have got that point.
MR SIEMER:
If the court’s inconsistent and the rules are not clear, fourth, that the rules are coherent and not radically flawed by anomalous –
5 ELIAS CJ:
No we don’t, we really do not need to hear an essay read out to us. We do understand the point you’re making, that you say that this is inconsistent with the rule of law – we get that point.
10 MR SIEMER:
Well, I haven’t made the other points that –
ELIAS CJ:
Well, what’s the point you want to make? Don’t read to us, just tell us what the point
15 is that you want to make so we can see where it’s going.
MR SIEMER:
Well, I’m reading a sentence, I’m not reading a book here or even a page, but the –
that’s it’s not unstable by reason of constant sudden change. What we have here is,
20 we have a state of flux, we have a tremendous amount of changes occurring in respect of security for costs. For this Court to rule, that okay, well, it wasn’t handled by the High Court –
ELIAS CJ:
25 Look, I think you have to understand that we are bound by statute, and what you have to understand is that we have to work out what we can do with your appeal if we agree with the propositions of law you put to us. It’s not – this is not helping us with that point. It may be that, I think, you’ve said everything you can say on it.
30 MR SIEMER:
I think today even if the Court chooses to classify its actions as clarification of the law, it’s clearly changing the law, the fabric of the law in New Zealand. In a proceeding, in a context of security for costs which affects every, has the potential to affect every civil case in the courts – when an order is made which the court has
35 every reason to believe cannot be complied with, it is in effect a denial of natural
justice and I see your Honour looking as – trying to comprehend –
ELIAS CJ:
No I’m just trying to think which order you're referring to. You're referring to the security for costs order?
5 MR SIEMER:
I’m referring exactly to the security for costs order.
ELIAS CJ:
Yes.
10
MR SIEMER:
So if the judge issues a security for costs order he has every reason to suspect is going to result in the appeal not proceeding, it is an effective breach of natural justice, it’s a closing of the court, the door to court access, and there’s numerous
15 United Nations citations in respect to the discriminate use of security for costs and
Justice Tipping doesn’t like me saying this but where it’s inconsistently applied, where you impose a security for costs against the recognised impecunious person, where you don’t address the bona fides at appeal, and you waive it in the case of a working solicitor –
20
ELIAS CJ:
That’s going back into the merits of the appeal, and we understand your argument.
MR SIEMER:
25 But it is a responsibility for the courts to be consistent and clear in the process of law, so this Court has, as part of that inherent responsibility, a responsibility to correct the injustices that occur with it. So under s 27 this Court has the right to, the power to say, well, a breach of natural justice occurred. It wasn’t the non-payment, it wasn’t the untimeliness of the appeal, it was the mere fact of the order. To say otherwise is
30 getting the cart before the horse, it was the order. It was the inability to comply with
the security for costs order that resulted in the appeal not progressing, nothing else. Anything else as far as timeliness of appealing, it is a secondary consideration and certainly to the fundamental reason why the appeal didn’t proceed, and that again was that the security for costs impediment alone prevented access to the court. So
35 on that the court never addressed it, and as you can see from Mr Clarke’s chronology
it wasn’t in active state of play, so you have a case where there is discussion going on with the court, it is being handled by minutes, they are referred to as orders but so
as not to waste the Court of Appeal’s time on these issues, as long as it’s being addressed by the High Court there’s no reason. On a practical level, why anybody in such a position could foresee that it was incumbent upon them to apply to the Court of Appeal.
5
BLANCHARD J:
What minutes are you referring to?
MR SIEMER:
10 If we look at Mr Clarke’s chronology you look at the 8th day of May, the Court grants an extension for time for payment of security until – for three weeks, it makes an unless order. And then the appellant seeks a, to review the unless order, so basically an application was made which should have forestalled the unless order. I mean if you make an application to the Court that it’s just reasonable that the Court
15 would address that application, they couldn’t just ignore it and say, oh, it might be out
of time because the unless order didn’t expire until the 29th. Well the application was made on the 29th so clearly there’s a conflict there. So it’s not a statutory –
McGRATH J:
20 Would you – just looking at page 28 of your, of the bundle. It was made clear, was it not, in the 8th of May minute and reiterated here, that unless the security was paid by the 29th May the matter would be treated as abandoned?
MR SIEMER:
25 That’s true, but if you have an application to amend that, it’s not free to the court to ignore it, which the court apparently did in this case.
McGRATH J:
Well, that’s not what’s said here. I think the court seems to be quite unequivocal in
30 the minute in telling you that the security had to be paid or your appeal would be treated as abandoned. You may have supposed you might be able to take a different course and still keep it alive, but that’s not what the court told you.
MR SIEMER:
35 No, I think we all understand the meaning of “unless order”, but if you make an application to the court, and keep in mind that again there was an extension given, it was by conference, as the Judge called this, so case management by minute, even
though it was clearly an order, so there was every reason to believe where there’s
not set rules in respect for security for costs, that the Court would address it. So the
statutory technicality, if I may, doesn’t strictly apply here, so if this Court were to –
5 ELIAS CJ:
All right, so your submission on this point is that that’s a technical point and that the
Court should apply natural justice in not allowing it to be determinative?
MR SIEMER:
10 I would say, yes, your Honour, natural justice, but there’s also the element that’s the, the technical point isn’t clear that it’s applicable, because the situation at the High Court was the proceedings were live, an application had been filed, again you can say, well, it was dismissed because the Court didn’t entertain the application filed on the 29th, but not knowing that that would not result in a right to be heard on it and
15 then it was going to end the proceeding. The only other option was to follow an
appeal in the course of the same day. As this Court’s aware, an appeal was filed within three weeks, and it was in the form because there was again a lot of contradicting information as to how that appeal should be formed, whether it needed to be a leave, and ultimately the Court of Appeal said no, you have to go back to the
20 High Court. So in effect going back to the same High Court judge that ignored the
application on the 29th May, so this Court has to recognise that the same judge who is going back to for the leave to appeal, is the very same judge that didn’t address the –
25 ELIAS CJ:
All right, that’s a different point, but I think that the position now has been reached, we’ve gone round and round it, we do understand your submission, it is a difficult point and we’re going to have to think about it, but I don’t think anything you can say is going to add to the assistance you’ve already given us.
30
MR SIEMER:
If I just may have a minute?
So just, in summary, if I may just briefly, there’s the two points to natural justice
where the inconsistency, the laws and the lack of a clear procedure and the aspect of
35 the technical point not being strictly on point, that you have a situation where an application had been made in a case where the history was that it had been a live issue and been extended before, and this Court wants to subscribe to Mr Clarke’s
warning that this could create an avalanche in the Court of Appeal, do we really want an avalanche of appeals to the Court of Appeal simply because the High Court hasn’t properly addressed the security for costs issue in law, despite the parties’ attempts to have that be so. Thank you very much.
5
ELIAS CJ:
Thank you, Mr Siemer. Mr Beck, was there anything, having heard some of those matters ,that you could assist us with or that you want to?
10 MR BECK:
There wasn’t anything in general that I wanted to say further, your Honour. Just on this deemed abandonment point, the possibility must exist that security is ordered, not paid, an appeal is brought within time but after the abandonment, the Appeal Court says you’re quite wrong to order, order security and therefore there is no
15 security to be paid, which, if that’s the case, then the appeal wouldn’t have been
deemed to be abandoned at all, so it looks as if you could have a retrospective type of resurrection of the appeal by virtue of what happens in the Appeal Court, so –
BLANCHARD J:
20 Are you saying that if we took the 29th of May as the critical date, that there would be an appeal period running from that date and that if it so happened that the deemed abandonment occurred while the appeal period was still running, that we should regard it as being postponed and so that if Mr Siemer, after that date but before the appeal period ceased, did something which amounts to lodging an appeal, that would
25 be good enough?
MR BECK:
I'm saying I don’t think there’s any clear legal argument –
30 BLANCHARD J:
No, but you’re saying that’s a possible argument?
MR BECK:
Well, it’s a possible way of looking at it, because it – in any situation there’s a
35 possibility that the appeal might, in fact, reverse what had happened –
TIPPING J:
You’d then have difficulties because people can always apply for leave to appeal out
of time –
MR BECK:
5 Yes.
TIPPING J:
Would you allow that, if you like, to gazump the deemed abandonment?
10 MR BECK:
I mean I think it depends on what happens on appeal to a large extent, because if the Appeal Court says, “Well, no, the High Court was quite right,” then the abandonment is –
15 TIPPING J:
Stands.
ELIAS CJ:
Stands.
20
MR BECK:
These abandonment provisions are actually very, very difficult in practice because of
what can happen like that, but I mean that’s what the legislation says.
25 TIPPING J:
It would be easier if the deemed abandonment date coincided with the right of appeal
date, wouldn’t it?
MR BECK:
30 It – well, it would, then you could say, “Well, you haven’t exercised any right of appeal and it’s gone”. But, of course, these deemed abandonments have now come in the Court of Appeal, well, they never were in the Supreme Court and they only apply in the District Court appeals, not in other appeals to the High Court, so in one sense it’s a relic of the past, but there’s nothing we can do about the actual wording
35 of the legislation. All I'm saying is that it’s – the possibility of an order on appeal
extending time is not impossible. So, that –
ELIAS CJ:
And indeed, if there isn’t some more purpose of interpretation of s 74(2), the perverse outcome might be that the Court of Appeal or the High Court would have to, no, the
Court of Appeal would have to hear these in a huge hurry.
5 MR BECK:
Well, I mean –
TIPPING J:
Or stay.
10
ELIAS CJ:
Or stay.
MR BECK:
15 Yes, yes.
ELIAS CJ:
Well, I don’t know, I mean you’d have to, you’d –
20 WILLIAM YOUNG J:
Couldn’t you stay if you just granted an extension of time or a stay of the pending
appeal?
ELIAS CJ:
25 You’d still have to deal with the terms of s 74(2), I would’ve thought.
MR BECK:
Yes, I think that’s right, it’s an absolute provision in the statute, unless that –
30 ELIAS CJ:
Must be treated as having been abandoned.
TIPPING J:
You can see it as being retrospectively overtaken.
35
MR BECK:
Well, that’s what I'm saying, your Honour, and that’s so there is that possibility of the
Court of Appeal saying, well, the security was too much, we’ll order less and then we’ll have to give you some time to pay it, otherwise it’s of no use to you at all.
5 TIPPING J:
If, hypothetically, an order is a swinging order which should be amended on appeal, but you don’t quite, you get your appeal in within time, you couldn’t – counter-intuitive in a sense.
10 MR BECK:
That’s exactly right, your Honour. As I say, it’s a difficult type of provision but I think there are ways of saying the court could retrospectively at least extend time or remove the order.
15 TIPPING J:
The condition of the deeming no longer applies –
MR BECK:
Yes.
20
TIPPING J:
Because of what the Court of Appeal has done. Not prot – if I can –
MR BECK:
25 Yes, that’s right, that’s right, your Honour.
ELIAS CJ:
Well, I was going to say s 74 could, however, be purposively interpreted to mean that s 74(2) abandons only to disobedience of court orders rather than impinging on
30 challenges to those orders.
MR BECK:
Yes.
35 ELIAS CJ:
Leaving that to be –
BLANCHARD J:
The question would then be whether the appeal could still be brought after the deemed abandonment, or whether it had to be before the deemed abandonment and
then that effectively suspended the operation of s 74.
5 ELIAS CJ:
I mean, it does occur to me that really all of this is a little bit circular in a sense that it would’ve been possible for Mr Siemer to apply for judicial review of the District Court Judge rather than appealing –
10 MR BECK:
That may have met with the objection that you should’ve exercised an appeal right, it’s –
ELIAS CJ:
15 Well, it might have, but if it’s really aberrant it’s a –
MR BECK:
Yes.
20 ELIAS CJ:
It’s an available procedure indeed, there’s no, probably no time bar to it, so it might even start again. Anyway, I think that’s probably as far as we can go today. It’s a difficult case and I think we should thank all counsel and Mr Siemer for the argument. We’ll reserve our decision on it.
25 COURT ADJOURNS:3.09 PM
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