Attorney-General v Siemer
[2022] NZHC 917
•5 May 2022
REDACTED VERSION IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2021-404-1955
[2022] NZHC 917
BETWEEN ATTORNEY-GENERAL
Plaintiff
AND
VINCENT ROSS SIEMER
Defendant
Hearing: 17 March 2022 Appearances:
S Jerebine for Plaintiff Mr Siemer in Person
Judgment:
5 May 2022
JUDGMENT OF DUFFY J
This judgment was delivered by me on 5 May 2022 at 3 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors:
Crown Law, Wellington
And to:
The Defendant
ATTORNEY-GENERAL v SIEMER [2022] NZHC 917 [5 May 2022]
[1] Vincent Siemer was subject to an indefinite vexatious litigant order under s 88B of the Judicature Act 1908. However, the enactment of the Senior Courts Act 2016 caused that order to lapse, at the latest, on 28 February 2022.1 The Attorney-General has brought an originating application, in reliance on s 166 of the Senior Courts Act 2016, for a general civil restraint order preventing Mr Siemer from commencing or continuing any civil proceedings in every senior court, inferior court or tribunal for a period of five years. Mr Siemer opposes this application.
[2] The matters for determination before me are three interlocutory applications made by Mr Siemer. Each is opposed by the Attorney-General. The applications are:
(a)to strike out of the civil restraint order application for abuse of process/duplication;
(b)for further and better particulars in the abovementioned pleadings of the Attorney-General; and
(c)objections to the Attorney-General producing judgments and other documents relating to Mr Siemer’s previous litigation in the courts as evidence to support the application for a general civil restraint order. Mr Siemer contends this is contrary to ss 50 and 130 of the Evidence Act 2006, inadmissible hearsay under s 17 or is irrelevant and prejudicial under ss 7 and 8.
[3] Mr Siemer is the applicant in the present hearing and the respondent in the substantive hearing. For clarity, I refer to parties by their names.
The substantive application for a s 166 order
[4] Because the form and process of the civil restraint order is in issue in relation to the interlocutory applications, I set the legislation out here for convenience:
1 There is no legal clarity on the exact effect of the savings provisions of the Senior Courts Act 2016 on the expiry of vexatious litigant orders under the Judicature Act 1908: see Rafiq v Whata [2019] NZHC 1193; Siemer v New Zealand Law Society [2019] NZHC 3075; and Siemer v Auckland High Court [2019] NZHC 3393. However, under all possible interpretations the order is now lapsed.
166 Judge may make order restricting commencement or continuation of proceeding
(1) A Judge of the High Court may make an order restricting a person from commencing or continuing a civil proceeding.
(2) The order may have—
(a) a limited effect (a limited order); or
(b) an extended effect (an extended order); or
(c) a general effect (a general order).
(3) A limited order restrains a party from commencing or continuing civil proceedings on a particular matter in a senior court, another court, or a tribunal.
(4) An extended order restrains a party from commencing or continuing civil proceedings on a particular or related matter in a senior court, another court, or a tribunal.
(5) A general order restrains a party from commencing or continuing civil proceedings in a senior court, another court, or a tribunal.
(6) Nothing in this section limits the court’s inherent power to control its own proceedings.
167 Grounds for making section 166 order
(1) A Judge may make a limited order under section 166 if, in civil proceedings about the same matter in any court or tribunal, the Judge considers that at least 2 or more of the proceedings are or were totally without merit.
(2) A Judge may make an extended order under section 166 if, in at least 2 proceedings about any matter in any court or tribunal, the Judge considers that the proceedings are or were totally without merit.
(3) A Judge may make a general order if, in at least 2 proceedings about any matter in any court or tribunal, the Judge considers that the proceedings are or were totally without merit.
(4) In determining whether proceedings are or were totally without merit, the Judge may take into account the nature of any interlocutory applications, appeals, or criminal prosecutions involving the party to be restrained, but is not limited to those considerations.
(5) The proceedings concerned must be proceedings commenced or continued by the party to be restrained, whether against the same person or different persons.
(6) For the purpose of this section and sections 168 and 169, an appeal in a civil proceeding must be treated as part of that proceeding and not as a distinct proceeding.
168 Terms of section 166 order
[…]
(2) An order made under section 166, whether limited, extended, or general, has effect for a period of up to 3 years as specified by the Judge, but the Judge making it may specify a longer period (which must not exceed 5 years) if he or she is satisfied that there are exceptional circumstances justifying the longer period.
Strike out application
[5] The Attorney-General’s originating application was filed on 11 October 2021 (the Attorney-General’s application). An interlocutory application seeking either a limited or an extended s 166 civil restraint order against Mr Siemer was made on 20 December 2021 by the Registrar of the Supreme Court in the matter of Siemer v Registrar of the Supreme Court CIV-2021-485-177 (the Registrar’s application). The latter application was filed in the Wellington High Court. The scope of the order sought in that proceeding is not as broad as the general order sought by the Attorney-General.
[6] Before the hearing Mr Siemer’s stance was that the present application amounts to an abuse of process for duplication. Ms Jerebine for the Attorney-General maintained that the applications are different, as they concern different parties, seek different orders and rely on different evidence.
[7] At the hearing there was some alteration of those positions. Whilst Mr Siemer’s preference was still for strike out of the s 166 application, he responsibly acknowledged that the abusive duplication of process that he complains about can be cured by this proceeding being consolidated with the Registrar’s application.
[8] The Attorney-General expressed various views on the prospect of consolidation. First, it was opposed. Then it seemed it was not opposed. There was some acceptance that consolidation would save time and costs for the parties, use judicial resources more efficiently and avoid inconsistent findings of fact or law. Later the Attorney-General’s position was that his application should be stayed until the Registrar’s application was determined. Ms Jerebine argued that one was brought as a substantive application whereas the other was brought as an interlocutory
application in a different proceeding, which was a bar to the consolidation of the two. By then Mr Siemer had acknowledged that consolidation would be an appropriate outcome and he opposed a stay. At the end of the hearing Ms Jerebine formally requested that I record the Attorney-General opposed the consolidation.
[9] I consider that consolidation with the Registrar’s application is the right and proper direction to make for the reasons that follow.
Discussion
[10] Rule 10.12 of the High Court Rules 2016 allows the Court to order that two or more proceedings be consolidated. Alternatively, the Court may order that two or more proceedings are to be tried at the same time or one immediately after another or that one of them be stayed until the determination of the other. To make any of these orders the Court must first be satisfied:2
(a)that some common question of law or fact arises in both or all of them; or
(b)that the rights to relief claimed therein are in respect of or arise out of—
(i)the same event; or
(ii)the same transaction; or
(iii)the same event and the same transaction; or
(iv)the same series of events; or
(v)the same series of transactions; or
(vi)the same series of events and the same series of transactions; or
(c)that for some other reason it is desirable to make an order under this rule.
[11] Jurisdiction for the rule requires that least one of the situations in sub-rr 10.12(a), (b) or (c) is engaged.3 However, r 10(12)(c) has been described as something of a “catch all” conferring a separate and very wide discretion. The rule
2 High Court Rules 2016, r 10.12.
3 Amalgamated Finance Ltd v Wyness HC Wellington CP156/86, 19 February 1987.
can be invoked either by a party upon application or by the Court of its own volition. The latter is done here.
[12] In Regan v Gill the Court of Appeal observed that “it is difficult to conceive of a wider procedural discretion”. 4 In Med Lab Hamilton Ltd v Waikato District Health Board, Rodney Hansen J identified savings in time and cost to the parties, more efficient use of judicial resources and removing the risk of inconsistent decisions as factors in favour of granting a consolidation order.5 In that case Rodney Hansen J ordered concurrent hearing of two proceedings against different District Health Boards that had much in common though there were important differences in their facts and legal issues.
[13] Factors that can tell against consolidation include when there may be confusion, prejudice or any oppression which might result to one or more of the parties from the size and complexity of a consolidated proceeding. In particular, disadvantage may occur where evidence admissible in one proceeding will not be admissible in the other, or where general prejudice may result from the admission of evidence that would not be heard but for the order.6
[14] Mr Siemer favoured consolidation over an order that the two proceedings be heard at the same time or one after the other. In this regard I consider it is necessary to be clear about the two proceedings to which r 12.10 is to be applied. There are presently two separate sets of proceedings. The Attorney-General’s application is an originating application filed in the Auckland Registry of this Court and the proceeding Siemer v Registrar of the Supreme Court is a judicial review proceeding filed in the Wellington Registry of this Court by Mr Siemer. The substantive issues in the latter proceeding do not involve civil restraint orders. However, in response to Mr Siemer bringing this judicial review the Registrar of the Supreme Court has brought an interlocutory application in which he seeks a limited or extended civil restraining
4 Regan v Gill [2011] NZCA 607 at [10].
5 Med Lab Hamilton Ltd v Waikato District Health Board [2007] 18 PRNZ 517 (HC) at [8]; and see
CallPlus v Telecom NZ Ltd (2000) 15 PRNZ 14 (HC) at [51].
6 CallPlus v Telecom NZ Ltd, above n 5, at [41]–[45].
order. This Court has already approved the use of interlocutory application in this way.7
[15] I accept that it may not be possible for an originating application to be consolidated with an interlocutory application in another separate proceeding in this Court. But I see no reason why the originating application for a general civil restraint order cannot be heard at the same time as the interlocutory application for the more limited civil restraining order the Registrar of the Supreme Court seeks. That outcome can be achieved either by ordering the two applications are heard together or by consolidating this proceeding with Siemer v Registrar of the Supreme Court. The latter is Mr Siemer’s preference. He is agreeable to consolidation and for this proceeding being transferred to the Wellington Registry so that both applications for civil restraint orders can be heard together.
[16] Procedurally there is little practical difference between an originating application under Part 19 and an interlocutory application under Part 7 of the High Court Rules. Indeed, the commentary in McGechan On Procedure at Part 19 refers to a series of rules (rr 19.10, 19.11 and 7.43A) that apply rules for interlocutory applications to originating applications, subject to all necessary modifications. Both are brought by application supported by affidavits and both require the opposing party to file a notice of opposition. The hearing of interlocutory applications on strike out and summary judgment applications can involve substantial matters that determine the outcome of a proceeding. So in this regard they proceed at hearing in the same fashion as originating applications.
[17] As to the substance of the applications during the hearing Mr Siemer identified 11 material similarities between them These were: (a) they engage the same cause of action under s 169 of the Senior Courts Act; (b) they both seek costs against Mr Siemer; (c) both applications are filed by Mr McKillop, Crown Counsel of the Crown Law Office, Wellington; (d) both applications expressly rely on the earlier vexatious litigant order made against Mr Siemer under the Judicature Act 1908; (e) both applications rely on the same judgments as evidence against him; (f) both rely on
7 Siemer v Registrar of the Supreme Court [2021] NZHC 1604.
the same judgments, for the same purpose and remedy; (g) both applications rely on judgments as evidence where Mr Siemer was neither a party nor heard; (h) both applications allege extraordinary circumstances in support of the s 166(1) orders; (i) both applications sought timetabling orders in December 2021; (j) they were filed within two months of each other; and (k) they are both in a similar form.
[18] I agree there are multiple substantial similarities between both applications. With both applications a substantially similar remedy is sought in that both seek to restrain Mr Siemer’s ability to freely bring litigation of his choosing. The only material difference is the Attorney-General seeks a broader restraint than does the Registrar of the Supreme Court.
[19] While the Registrar is employed in a court, which represents the judicial arm of government, the Registrar is also an employee of the Ministry of Justice, which is part of the executive arm of government. Here the Crown Law Office (also a government department) represents both the Attorney-General and the Registrar of the Supreme Court. Each is ultimately funded by the New Zealand taxpayer. Accordingly, both applicants are public officers who ultimately derive funding for bringing their respective applications from the same source.
[20] If the two applications are heard together there will be efficiencies in use of court and judicial time and resources, Mr Siemer’s time and resources, and the Crown Law Office’s time and resources. On the other hand, if the two applications are heard separately Mr Siemer will be faced with opposing one set of proceedings in Wellington and the other in Auckland in circumstances where there will be an overlap with factual and legal issues. To require him to go to two separate hearings rather than one hearing would be oppressive as he would be put to unnecessary effort and expense. Particularly if he chooses to engage legal representation for both matters. If the two applications are heard together it may well be that the interlocutory application by the Registrar becomes subsumed within the broader application by the Attorney-General. In this regard, I note that the fact Mr Siemer has brought multiple judicial review proceedings against the Registrar is one of the planks in the Attorney-General’s case for a civil restraint order.
[21] Both applications have been recently commenced and therefore they should be able to be heard at the same time. In this regard no complaint was made by Mr Siemer or by the Attorney-General. Nor did Mr Siemer object to the idea that the originating application would be consolidated with his judicial review proceeding. As Mr Siemer has accepted consolidation it follows there is no argument on his part regarding prejudice or oppression that could follow from that occurrence. The Attorney-General did not identify any oppression or prejudice if the two matters were to be heard together. Indeed, during the hearing there was some acceptance from the Attorney- General of the wisdom of that course. The consolidation would see this proceeding transferred to Wellington, when Mr Siemer resides in the Auckland region, but he is content with that outcome.
[22] By the end of the hearing the Attorney-General was no longer arguing for the circumstance where both applications for civil restraint orders would be live and each running their separate course against Mr Siemer so I do not focus on whether that is an appropriate circumstance. Instead I shall consider the Attorney-General’s amended position that this proceeding be stayed until the Registrar’s application is heard and determined. I consider there are benefits to having the two applications for civil restraint orders heard together rather than staying this application until the Registrar’s application is heard and determined. A stay would still leave open the possibility of two separate applications going to hearing. Because they are filed in different registries there is a likelihood they would be heard by different judges and, therefore, in principle the potential for inconsistent judgments is present. Whilst I accept in one case the restraint sought is narrower than in the other, the potential for different views and findings on a broader basis than just the scope of restraint cannot be ignored.
[23] I realise Mr Siemer has already been the subject of an order under the Judicature Act which prevented him from bringing litigation without leave of the court, but it cannot be assumed that both present applications will result in judgments with like outcomes. The new orders under the Senior Courts Act are predicated on being in existence for a finite period. For that reason, it may be that past conduct that was subject to s 88B Judicature Act orders that have now lapsed may be of less significance than any new conduct which has engaged the present application. Otherwise if past conduct were enough to support the making of subsequent civil
restraint orders their finite nature could be avoided through continual successive applications which rely on the same earlier conduct. If that were to occur the legislative purpose of these orders being in existence for a finite period could be thwarted. Further, the substantial seriousness of the application in relation to their impact on Mr Siemer and the legal issues they engage warrant them being heard together.
[24] It follows that I find the conditions of r 10.12(a) are engaged. In the alternative, I consider the circumstances here fall within r 10.12(c). I see no reason why consolidation rather than ordering the two applications to be tried at the same time cannot be ordered. Once consolidated the Attorney-General’s application will be heard together with the Registrar’s application. If both are successful, that will bring an end to the judicial review Mr Siemer has filed. If only the Attorney-General’s application is successful, that will also bring an end to the judicial review, and if only the Registrar’s application is successful that too will bring an end to the judicial review. It is only if both applications are unsuccessful that the judicial review will remain live. These potential outcomes show how the judicial review has essentially been overtaken if not trumped by the interlocutory application the Registrar now brings. They are further reasons why it is best for the two proceedings to be joined and for the Registrar’s interlocutory application to be heard with the Attorney-General’s application. No harm can come from them being heard together, whereas the problems that can arise if they proceed independently, even with the stay of the Attorney-General’s application are as outlined above.
[25] The result of the application for strike out is consolidation of this proceeding with Siemer v Registrar of the Supreme Court CIV-2021-485-177 and the transfer of this proceeding to the Wellington Registry of this Court.
Application for further and better particulars
[26] Following the hearing of the strike out application and the prospect of consolidation Mr Siemer chose not to advance the application for further and better particulars at this time. In some respects, the outcome of this application hinges on the application Mr Siemer brings in relation to the evidence the Attorney-General
intends to produce to prove the application for civil restraint orders. This is because the judgments in the bundle are referred to in the originating application as particulars of the conduct at which the s 166 orders are directed. Accordingly, the application for further and better particulars is presently adjourned.
Objections to evidence
[27] The Attorney-General’s bundle of documents was filed with his originating application in reliance on s 130 of the Evidence Act. The bundle contains 37 documents as follows:8
A: Vexatious litigant order under s 88B Judicature Act 1908
1. Attorney-General v Siemer [2014] NZHC 859
2. Siemer v Attorney-General [2016] NZCA 43, [2016] NZAR 411
3. Siemer v New Zealand Law Society [2019] NZHC 3075
B: Proceedings related to Siemer v Hickson
Ministry of Justice complaint claims (CIV-2018-404-507, -627, -809)
4. Draft statement of claim dated 23 March 2018 (CIV-2018-404-507)
5. Siemer v Ministry of Justice [2018] NZHC 646
6. Without notice application for leave to file judicial review dated 12 April 2018 (CIV-2018-404-627)
7. Affidavit of Vincent Siemer in support dated 12 April 2018 (CIV-2018-404-627)
8. Siemer v Ministry of Justice [Minute of Venning J] HC Auckland CIV-2018-404-507 and -627, 19 April 2018
9. Statement of claim dated 23 April 2018 (CIV-2018-404-809)
10. Affidavit of Clayton Luke dated 24 July 2018 (CIV-2018-404-809)
11. Siemer v Attorney-General [2018] NZHC 3406
Proceedings against Disputes Tribunal referee
12. Siemer v New Zealand Law Society [2018] NZHC 2400
13. Review applications LCRO 220/2018, 221/2018
8 Adapted from Attorney-General’s bundle of documents, index.
14. Siemer v [Redacted] LCRO 220/2018, 221/2018, 047/2019, 18 December 2019
15. Statement of claim dated 19 January 2021 (CIV-2021-404-99)
16. Attorney-General and Respondent’s joint memorandum seeking amendment to suppression order dated 30 September 2021
17. Memorandum of Mr Siemer opposing amendment to suppression order dated 1 October 2021
18. Letter from LCRO to Crown Law dated 5 October 2021
Judicial review of Hickson judgment
19. Siemer v District Court, North Shore [2019] NZHC 346
C: Attempt to commence judicial review proceedings against Deputy Registrar of the Supreme Court in the Supreme Court (SC 101/2020)
20. Re Siemer HC Auckland CIV-2019-404-844, 28 February 2020 (Minute No 4 of Palmer J)
21. Re Siemer [2020] NZCA 393
22. Re Siemer [2020] NZSC 136
23. Re Siemer [2021] NZSC 12
24. Siemer v Deputy Registrar of the Supreme Court [2020] NZSC 135
25. Siemer v Deputy Registrar of the Supreme Court [2021] NZSC 3
26. Siemer v Deputy Registrar of the Supreme Court [2021] NZSC 17
D: Three judicial review claims against Registrar of the Supreme Court (CIV-2021-404-100, CIV-2021-485-125, -177)
27. Siemer v Registrar of the Supreme Court HC Auckland CIV-2021-404-100, 12 February 2021 (Minute of Downs J)
28. Siemer v Registrar of the Supreme Court [2021] NZHC 1604
29. Statement of claim dated 6 April 2021 (CIV-2021-485-177)
30. Siemer v Registrar of the Supreme Court HC Wellington CIV-2021-485-177, 1 June 2021 (Minute of Cooke J)
E: Collateral attacks on earlier judgments
Document access decision (CIV-2019-404-2797)
31. Rafiq v Whata HC Auckland CIV-2019-404-934, 24 October 2019 (Minute of Downs J)
32. Siemer v Auckland High Court [2019] NZHC 3393
33. Siemer v Attorney-General [2020] NZHC 2581
34. Siemer v Attorney-General [2020] NZHC 2756
Collateral challenge to Minute of Palmer J and outcomes of failed appeals
(CIV-2020-404-2143)
35. Siemer v Auckland High Court [2020] NZHC 3072
36. Siemer v Auckland High Court [2021] NZCA 487
37. Siemer v Auckland High Court [2021] NZSC 120
Mr Siemer’s submissions
[28] Mr Siemer does not object to the first three documents so long as they are used as background and not to prove any substantive fact in the proceeding. Additionally, Mr Siemer does not object so long as the Attorney-General “provide the proper certificate as required by law, s 139(1) Evidence Act 2006”. However, he objects to the remainder of the documents in the bundle on several grounds.
[29] Mr Siemer submits that s 130 does not provide an independent ground to admit evidence and that it must be “otherwise admissible”. The judgment texts in the bundle are inadmissible by operation of s 50, which prohibits judgments being admitted in another case to prove facts in issue. In support Mr Siemer cites Simunovich Fisheries Ltd v Television New Zealand (Simunovich Fisheries Ltd).9 Second, those judgments are inadmissible hearsay under s 17 and inadmissible opinion evidence under s 23, citing Auckland District Law Society v Leary.10 Third, the judgments should be excluded under s 8 because the risk of prejudice is too high.
[30] Mr Siemer says that documents 10, 11, 19 and 31 are not relevant because the documents relate to proceedings in which he was not a party. He further challenges the relevance of documents 13, 14, 18, 20, 21, 22 and 23 for various reasons.
Attorney-General’s submissions
[31] The Attorney-General submits that the documents are admissible under s 130 of the Evidence Act. Section 130(2) permits a party to object to evidence produced
9 Simunovich Fisheries Ltd v Television New Zealand [2008] NZCA 350.
10 Auckland District Law Society v Leary HC Auckland M1471/84, 12 November 1985.
without a witness only by way of challenge to authenticity. The documents filed in the bundle are documents that were either filed in or generated by a Tribunal or Court. Their authenticity is either plain on their face or can be confirmed by Mr Siemer. Any challenge to authenticity cannot be sustained.
[32] Further the Attorney-General contends that the reported judgments are public documents under s 4 of the Evidence Act, namely, documents that form part of the official records of the judicial branch of the Government of New Zealand, and the other documents, having been filed in court or produced by a court, fall within the court record. Pleadings, and records of judicial determinations are public documents of the type contemplated in s 130 of the Evidence Act, therefore, providing such documents under s 130 is sensible.11
[33] The Attorney-General submits that the judgments in the bundle are not being adduced as evidence of a fact. Mr Siemer’s submissions are premised on the mistaken impression that the judgments will be determinative of the issue in the upcoming proceeding, which he says is incorrect.
[34] The Attorney-General accepts that it is for the judge who hears the s 166 application to make his or her own assessment as to whether or not each of the earlier proceedings were totally without merit, and whether there are exceptional circumstances that warrant the making of a general restraint order. However, the Attorney-General argues that the earlier judgments can still be produced in evidence on the basis they form part of relevant court records, which should be available to the judge to review. He relies on a passage from the Court of Appeal’s decision in Mawhinney v Auckland Council (Mawhinney) where it was said:12
Section 167 [of the Senior Courts Act] makes clear that it is the Judge determining the issue whether an order should be made who is required to “consider” whether the proceedings are totally without merit. Although in all likelihood that Judge will carefully review the reasoning in the judgments given in the relevant proceedings, the question whether in any particular proceeding the threshold is established is for the consideration of the Judge contemplating making the order.
11 As held by the High Court in Attorney-General v Siemer [2013] NZHC 1664.
12 Mawhinney v Auckland Council [2021] NZCA 144 at [66].
[35] The Attorney-General contends that Mawhinney recognises that the reasons for judgment in the earlier proceedings may be received into evidence via s 130 by the judge hearing the s 166 application. He also contends that s 166 requires proof that two or more proceedings were brought without merit. Review under s 166 does not require the Attorney-General to prove the existence of a fact that was in issue in the earlier proceedings. Similarly, s 50 is not engaged because here the Attorney-General does not rely on the earlier judgments to prove facts in issue in this proceeding. Accordingly, Mr Siemer’s contention that Simunovich Fisheries Ltd precludes admission of the judgments is wrong.13
[36] The Attorney-General contends that Mr Siemer’s arguments based on ss 8 (prejudice), 17 (hearsay) and 50 (evidence of facts) do not apply to judgments and other court-related documents admitted under s 130.
[37] As to Mr Siemer’s challenges to the relevance of documents 10, 11, 13, 14, 18, 19, 20-23, and 31, here the Attorney-General relies on Fane v R and argues that “relevance can be determined as matters of weight at hearing”.14
[38] Accordingly, the challenges brought by Mr Siemer do not identify any reasonable challenge to the authenticity of the documents, and therefore they cannot succeed.
Discussion
Operation of s 130 of the Evidence Act
[39] There is a disconnect between the arguments advanced by Mr Siemer and those advanced by the Attorney-General. Mr Siemer’s objections to the Attorney-General’s bundle are based on well settled principles relevant to the admissibility of evidence.
[40] The Attorney-General seemingly considers that the reasons for judgment and the judgment are one and the same. Further, that subject to satisfying the Court as to authenticity pursuant to s 130 he can file a bundle of documents that includes reasons
13 Simunovich Fisheries Ltd v Television New Zealand, above n 9.
14 Fane v R [2018] NZCA 246 at [70].
for judgments and other documents without any further enquiry as to their qualification for admission. I disagree; more is required.
[41] Compliance with the process set out in s 130 is simply a way of ensuring pre-trial that otherwise admissible documents can be admitted in evidence as authentic documents without the need for calling a witness to support their production. This is made clear in s 130(3)(a) which provides that where there is no objection to the admission of the subject documents without calling a witness or a judge determines no useful purpose would be served by calling a witness the document “if otherwise admissible” may be admitted into evidence. Here Mr Siemer argues that the subject documents are not otherwise admissible. This necessitates consideration of the law on the documents’ admissibility as evidence in this proceeding.
[42] Because s 130 requires the documents to be “otherwise admissible” their relevance must be established. The Attorney-General’s submission that “matters of relevance can be determined as matters of weight at hearing” is based on Fane v R.15 I do not consider Fane v R is as helpful as the Attorney-General contends. Fane v R dealt with the issue of authenticity relating to a photograph. The Court of Appeal found that to be relevant a document must be authentic. That does not necessarily mean that authenticity automatically establishes relevance, just that it is a precondition: inauthentic documents are irrelevant.
[43] The Attorney-General’s submission that relevance can be determined as a matter of weight at the hearing is also contrary to general principle. Relevance determines admission; weight is a separate and subsequent consideration:16
It is thus inherent in evidence that it first must be relevant. That is, it is probative (by tendency to prove or disprove) of something material (a fact in issue). There follows a second and subsequent question as to whether the evidence is then inadmissible because it belongs to a class of evidence the law excludes. And then a third enquiry as to what weight is to be given to evidence that is relevant and admissible.
[44] Relevance can be determined pre-trial. Although Courts are generally reluctant to do so there are occasions where the parties need to know where they stand before
15 Fane v R [2018] NZCA 246 at [70].
16 Commerce Commission v Bunnings Ltd [2020] NZCA 310 at [32].
trial on the question of admissibility.17 I have found this proceeding should be consolidated with the Registrar’s application. Mr Siemer’s application for further and better particulars is yet to be heard and determined. For this reason, there may be issues regarding relevance that would be premature to determine now, and this needs to be kept in mind. But subject to that qualification I see no reason for not determining objections to relevance now.
[45] As to the admissibility objections based on other grounds, whether a piece of proposed evidence is excluded by s 50 (use of judgments from earlier proceedings as evidence in later proceedings) or by ss 17 (hearsay) and 23 (opinion) are matters that can readily be determined now.
First principles
[46] It is helpful to start with some first principles before addressing the parties’ arguments.
[47] First, under s 7 of the Evidence Act all relevant evidence is admissible except if inadmissible or excluded by another provision of the Act. Evidence that is not relevant is not admissible.18 To be relevant evidence must have a tendency to prove or disprove anything of consequence to the proceeding;19 this was explained by Kós P in Commerce Commission v Bunnings Ltd:20
It is of essence that material presented to a court as evidence have a tendency to prove or disprove a fact in issue. Most definitions of evidence draw on that central idea. Lawyers like to talk about “facts in issue”, which invests the concept with a somewhat spurious certainty. The reality is that evidence exists to prove or disprove hypotheses — about facts the existence of which is uncertain. To be evidence the material tendered must tend to do that. If it does not, it is mere distraction and has no place being in the courtroom.
17 In Commerce Commission v Bunnings Ltd, above n 16, the Court of Appeal found the witness statement of a witness the Commerce Commission intended to call was inadmissible on grounds of irrelevance and hearsay; and see Parihoa Farms Ltd v Rodney District Council (2010) 20 PRNZ 8.
18 Evidence Act 2006, s 7(2).
19 Evidence Act 2006, s 7(3).
20 Commerce Commission v Bunnings Ltd, above n 16, at [29].
[48] Kós P further explained relevance and its probative connection to the facts in issue:21
[34] In Bain v R Elias CJ and Blanchard J referred to relevance in terms of probative connection to the fact in issue:
That connection or relationship is not a matter of assessing the probative weight of the evidence but of accepting its logical connection to the fact it is said to prove.
Thus, in order to be relevant, the evidence must be reasonably capable of influencing the judge or jury’s assessment of a material issue …
[35]The s 7 threshold is not a high one: as Tipping J observed in Wi v R:
This is not an exacting test: nor should it be. Any definition of relevance has to accommodate all kinds of evidence and in particular circumstantial evidence, individual pieces of which are often of slender, and sometimes very slender, weight in themselves. The question is whether the evidence has some, that is any, probative tendency, not whether it has sufficient probative tendency. Evidence either has the necessary tendency or it does not. As Lord Steyn said in R v A:
[T]o be relevant the evidence need merely have some tendency in logic and common sense to advance the proposition in issue.
[49] The Attorney-General is seeking a general restraint order for the maximum period (five years).22 To obtain this order the Attorney-General needs to meet what is now a two stage test: (a) were the candidate proceedings totally without merit, which means were they bound to fail; and (b) is it appropriate for a general order to be made? It is at the second stage that questions of how the qualifying proceedings were conducted (which includes whether they were vexatious) and any wider circumstances relevant to the making of an order are considered.23 Here the Attorney-General must prove there are exceptional circumstances that warrant a five-year general restraint order.
[50] It logically follows from the statements of principle taken from Commerce Commission v Bunnings Ltd that the documents in the bundle must be relevant to: (a) proof of stage one (the candidate proceedings were totally without merit); (b) proof of
21 At [34]–[35] (footnotes omitted).
22 Senior Courts Act 2016, s 168(2).
23 Mawhinney v Auckland Council, above n 12, at [70] and [115].
stage two (there are exceptional circumstances that warrant a general restraint order for the maximum period); or (c) proof of both stages. Otherwise it is hard to see how they can be relevant evidence for this proceeding. Accordingly, the relevance of the documents in the bundle needs to be assessed with those two tests in mind. The focus must be on whether those documents have a tendency to prove Mr Siemer has brought proceedings that are totally without merit and whether in the course of doing so his conduct amounts to the type of conduct that warrants a 5 year general restraint order.
[51] Second, if the documents in the bundle meet the requirements for relevance, they then need to be assessed in terms of the other objections Mr Siemer raises based on the effect of ss 50, 17, 23 and 8 of the Evidence Act.
[52] Third, there is a legal distinction between a judgment and the reasons for judgment. In principle, the reasons for judgment are a combination of a judge’s findings of fact on the evidence and expressions of opinion on questions of law.
[53] Generally, the distinction between judgments and reasons for judgments is given little attention. However, when it comes to the question of the admission of judgments as evidence the distinction can become significant. The distinction is made clear in r 11.1 of the High Court Rules which defines “judgment” as including a decree or order of the court and “reasons for judgment” as meaning: (a) the written reasons given by a judge for his or her decision; or (b) when a judge gives reasons orally a report, approved by the judge, of those reasons. The distinction was referred to in this way by the High Court of Australia in R v Ireland:24
In a proper use of terms, the only judgment given by a court is the order it makes. Their reasons for judgment are not themselves judgments though they may furnish the Court’s reason for decision and thus form a precedent.
[54] The distinction between judgments and reasons for judgments is also relevant to whether s 50 precludes the admission of the reasons for judgments included in the bundle. It is easier, therefore to deal with both topics at the one time.
24 R v Ireland [1970] 126 CLR 321 at 330.
[55] In Rawlinson v Rice, a decision which predates the Evidence Act, this Court found that a formal judgment was admissible evidence of the outcome in a particular case.25 However, in subsequent proceedings not involving the same parties or their privies, the reasons for judgment were not admissible evidence of any facts found therein. In reaching this view the Court referred to what had become well settled law in New Zealand since Jorgenson v News Media (Auckland) Ltd regarding the use of convictions, court orders and judgments in subsequent civil proceedings,26 as it was then stated in Cross on Evidence (5th ed):27
…all judicial findings are inadmissible as evidence of the facts found in subsequent proceedings which are not between the same parties or their privies.
[56] The law of evidence is now codified in the Evidence Act. As Mr Siemer submits, it was found in Simunovich Fisheries Ltd by the Court of Appeal, and subsequently affirmed by the Supreme Court in APN New Zealand Ltd v Simunovich Fisheries,28 that s 50 codifies the common law regarding the admission of the reasons for judgment in subsequent civil proceedings.29 In this regard the Court of Appeal relevantly stated:30
[95] Mr Galbraith contended that TVNZ may rely on the judicial decisions in two ways. First, the Courts’ findings and reasons are “classic examples” of circumstances that the respondents may plead in combination with other circumstances to establish reasonable grounds to suspect. Secondly, TVNZ relies on the judgments for the fact that the adverse findings were made, and not for the truth of what the Judges said. Supporting this argument, Mr Gray argued that judgments of superior Courts must be capable of supplying serious grounds for a belief that defamatory imputations are true.
[96] The short answer is found in s 50 of the Evidence Act, which provides that evidence of a judgment or a finding of fact in a civil proceeding is not admissible in another proceeding to prove the existence of a fact that was in issue in the proceeding in which the judgment was given. The section codifies the rule in Hollington v F. Hewthorne & Co Ltd [1943] KB 587. The rule was discussed at length in Jorgensen v News Media (Auckland) Ltd [1969] NZLR
25 Rawlinson v Rice (1998) 12 PRNZ 639. This principle is now expressed in s 139(1)(c) of the Evidence Act 2006.
26 Jorgenson v News Media (Auckland) Ltd [1969] 1 NZLR 961.
27 Rupert Cross and Donald Mathieson Cross on Evidence (5th New Zealand ed, Butterworths, Wellington, 1996) at [12.3.9].
28 Simunovich Fisheries Ltd v Television New Zealand, above n 13; aff’d APN New Zealand Ltd v Simunovich Fisheries [2009] NZSC 93, [2010] 1 NZLR 315 at [33].
29 Evidence Act 2006 s 50(2) maintains the common law reservations of res judicata, issue estoppel
and subsequent actions to enforce a judgment.
30 Simunovich Fisheries Ltd v Television New Zealand, above n 13, at [95]–[96] (emphasis added).
961, a defamation case. The New Zealand Law Commission recommended that the rule be retained, referring to the 1967 Report of the Law Reform Committee of Great Britain in which the point was made (at [38]) that one civil proceeding can differ substantially from another because of the parties’ liberty of choice in the conduct of their cases: Evidence: Volume 1 — Reform of the Law (NZLC R 55 1999) at [244]. Section 50 precludes reliance on judicial reasons in other cases as evidence of facts in issue in this proceeding. We have already observed that the respondents do rely on the findings as evidence of facts in issue. Those facts concern the Ministry’s mismanagement of the fishery and the resulting benefits to Simunovich vis-à-vis other fishers.
[57]This view of s 50 was subsequently affirmed by the Supreme Court:31
Mr Gray QC initially argued that the section [50] does no more than make clear that the Act does not extend the application of the principles of res judicata and issue estoppel. He accepted on reflection, however, that the section goes further, and prevents the introduction of a judgment to prove the existence of a fact that was in issue in the proceeding in which the judgment was given. The plain words of s 50 do indeed make that clear. A finding of fact in other litigation over the allocation of quota for catching scampi cannot be relied upon by the defendants to prove the existence of that fact. The making of the finding can be proved, if the fact of its making is relevant in the later proceeding. But that would not assist the defendants in establishing the defence of truth because, as we have already demonstrated, they are required to establish independently the accuracy of the fact which was the subject of the earlier finding. Section 50 simply reinforces that position.
[58] I acknowledge that when referring to s 50 both the Court of Appeal and the Supreme Court did not distinguish between judgments and reasons for judgment, but in the cases that were before them, they did not need to do so. That their findings were directed at reasons for judgment is made clear by the Court of Appeal when it referred to s 50 precluding reliance on “judicial reasons in other cases as evidence of facts in issue in this proceeding”.32 The same is made clear in this passage of the Supreme Court’s decision, which references the reasons expressed in the subject judgments on which APN New Zealand Ltd had sought to rely:33
Quite apart from the difficulty which s 50 creates for them, the defendants face the problem that the observations made by Ellis J and Thomas J in earlier scampi litigation, on which they seek to rely, do not, on analysis, support their position. While critical of the Ministry of Fisheries, both Judges made it clear that they were not suggesting any impropriety, let alone corruption, on the part of the Ministry or the plaintiffs. There is also the further difficulty for the defendants that the dispositive reasoning of the Court of Appeal is to be found
31 APN New Zealand Ltd v Simunovich Fisheries, above n 28, at [33] (emphasis added).
32 Simunovich Fisheries Ltd v Television New Zealand, above n 9, at [96].
33 APN New Zealand Ltd v Simunovich Fisheries, above n 28, at [34] (footnotes omitted).
in the joint judgment of Keith and McGrath JJ, and not in that of Thomas J upon which they seek to rely.
[59] Apart from s 50, reasons for judgments are hearsay under s 17. In Simunovich Fisheries Ltd the Court of Appeal also accepted that “while authorship lends them much reliability, judicial reasons are not primary facts for the purposes of defamation law.”34 Whilst this was said in relation to defamation law there is no reason for confining the scope of the statement to that cause of action. Judicial reasons may state the primary facts that were received in evidence, but that is to give a second hand account of them.
[60] In England and Wales the use of reasons for judgments as evidence against strangers or a party and a stranger have been recognised to be hearsay or opinion evidence that is therefore not relevant or admissible.35 In Trade and Industry Secretary v Bairstow the Vice Chancellor Sir Andrew Morritt described what has become known as the rule in Hollington v Hewthorn [1943] KB 587 as based on two grounds:36
… first, that the opinion of the court exercising the criminal jurisdiction … was not relevant; second as hearsay evidence it did not comply with the best evidence rule.
[61] Section 23 of the Evidence Act generally provides that a statement of an opinion is not admissible in a proceeding except as provided by ss 24 or 25. The admission of expressions of opinion by a judge on a question of law decided in proceeding A in a subsequent proceeding B (where the same parties or their privies are not involved) does not easily fit within either of the exceptions to s 23. Generally, opinions on domestic law are not admissible, however expert the maker may be.
[62] In Auckland District Law Society v Leary, which was a civil proceeding for an order striking a barrister, Mr Leary, off the rolls of barristers and solicitors, counsel for the Auckland District Law Society submitted that the Court hearing a disciplinary application for striking off could accept the conclusions of a Royal Commission in Australia on the basis the Court was “entitled to see how Mr Leary’s conduct was
34 Simunovich Fisheries Ltd v Television New Zealand, above n 9, at [99].
35 Hodge M Malek (ed) Phipson On Evidence (19th ed, Thomson Reuters, London, 2018) at 1589, citing Land Securities Plc v Westminster City Council [1993] 4 All ER 124 at 127.
36 Trade and Industry Secretary v Bairstow [2003] EWCA Civ 321, [2004] Ch 1 at [16].
perceived by another judicial officer.”37 Hardie Boys J rejected the submission. There is no reason why the principle should not also be applied to the evidential use of judgments in personam. Other jurisdictions have excluded judgments as evidence against strangers on the ground they are inadmissible opinion evidence.38
[63] Also, in Auckland District Law Society v Leary Hardie Boys J refused to allow the Auckland District Law Society to produce in evidence “Jefferies J’s reasons for judgments” in an earlier criminal proceeding involving Mr Leary as a defendant in which he was acquitted following a judge alone trial.39 Hardie Boys J explained his approach in this way:40
The purpose for which the judgment is produced is said to be twofold: first, by way of background information and out of fairness to Mr Leary to show that he was indeed acquitted; secondly, in order to found an argument that an estoppel arose against Mr Leary by virtue of the judge’s finding of fact that no moneys were due by Townsend, as Mr Leary had claimed. Mr Crew [Mr Leary’s counsel] very correctly submitted that the fact there was an acquittal could have been placed before the Court by way or narrative in an appropriate affidavit and that production of the full judgment was quite unnecessary for this purpose. Indeed except so far as they estoppel point may have validity, the judgment is no more than an expression of opinion that is inadmissible for the purposes of the present proceedings.
[64] Accordingly, I understand the above case law would prevent the judge who hears the Attorney-General’s application (now consolidated with the Registrar’s application) from relying on earlier reasons for judgments involving Mr Siemer and strangers to the present proceeding as proof of facts essential to the outcome of the present applications. Insofar as those reasons for judgments contained expressions of legal opinion on the effect of those same facts such opinions are also not admissible in the present proceeding.
[65] It follows that the findings of fact in earlier litigation involving Mr Siemer and third parties showing his claims totally lacked merit, were vexatious, an abuse of process, or any other descriptor that is typically applied to hopeless litigation warranting a five-year general restraint order, cannot be relied upon by the
37 Auckland District Law Society v Leary HC Auckland M1471/84, 12 November 1985 at 13.
38 Hui Chi-ming v R [1992] 1 AC 34 (PC) at 43.
39 Auckland District Law Society v Leary HC Auckland M1471/84, 12 November 1985 at 9.
40 At 10 (emphasis added).
Attorney-General in the consolidated proceeding to prove the existence and truth or accuracy of those earlier factual findings. Insofar as findings in such earlier proceedings can be viewed as findings of law they would be inadmissible opinion evidence.
Application of law to present case
[66] There was no suggestion that affidavit evidence was going to be filed in support of the s 166 application. That application does not refer to any supporting affidavit evidence and to date none has been filed. Thus, the bundle of documents appears to be the sum total of the Attorney-General’s evidence. I realise Ms Jerebine disavows that the Attorney-General is attempting to produce the reasons for judgments in the bundle as proof of the truth and accuracy of their contents, but it seems to me that must be the purpose of his action.
[67] Unless those earlier reasons for judgments are to be treated as containing truthful and accurate facts that have a tendency to prove the facts in issue in this proceeding their factual contents are irrelevant, because without those qualities they no longer have a tendency to prove or disprove anything that is of consequence to the determination of this proceeding.41 Given there is no other evidence it is hard to see how the Attorney-General’s application can proceed without reliance on the reasons for judgment in the bundle to prove the legal proceedings brought by Mr Siemer, what their basis was, the merits of those proceedings and their respective outcomes.
[68] As to any contention that the reasons for judgments can provide proof of the making of those statements the problem with this argument is that once the factual content of the earlier reasons for judgment are stripped of their truth and accuracy they have nothing to contribute by way of proof. They cease to be “reasonably capable of influencing the judge’s assessment of a material issue” in this proceeding.42 So in this sense also they are irrelevant.
41 Evidence Act 2006, s 7(3).
42 Commerce Commission v Bunnings Ltd, above n 16, at [34].
[69] I also consider it would be unfairly prejudicial to admit in evidence the reasons given in the earlier reasons for judgments, albeit stripped of their truth and accuracy, for the purpose of simply providing evidence of what was said by the Judges who gave those reasons for judgment.43
[70] First, there is the risk that having read multiple versions of such statements the judge hearing the s 166 application may unconsciously be influenced by them. In Auckland District Law Society v Leary one of the reasons Hardie Boys J gave for excluding the conclusions of the Australian Royal Commission was because:44
… the introduction of this material may not only tend to deflect this Court’s inquiry from the real issues before it but may also give rise to concern that the Court may be influenced by extraneous and irrelevant material. These two exhibits [which set out passages of the Royal Commission’s report] have no evidential value, but considerable potential prejudicial danger.
[71] Second, in Hart v R the decision of the majority of the Supreme Court found that, unlike the common law, the Evidence Act does not support concepts of limited admissibility:45
The statute proceeds on the basis that generally speaking, evidence is either admissible for all purposes or it is not admissible at all.
[72] Accordingly, if the earlier reasons for judgments are admitted into evidence simply to prove what was said in them, without those statements being understood to be true or accurate, then in accordance with the reasoning in Hart v R once those judgments were admitted for the purpose of proving what was said they could then become admissible for all purposes. This would include proof of the truth and accuracy of their contents. If that were to occur, it would be contrary to s 50.
[73] I reject the Attorney-General’s argument that the reasons for judgments in the bundle of documents can be admitted into evidence under s 130 so that they are
43 Evidence Act 2006, s 8(1)(a).
44 Auckland District Law Society v Leary, above n 10, at 13.
45 Hart v R [2010] NZSC 91, [2011] 1 NZLR 1 at [54]. This interpretation of Hart v R was confirmed in Kendall v R [2012] NZCA 5 at [13]: “the Crown had produced both affidavits (in their entirety as exhibits). Once in, they were admissible for all purposes. This was made clear in Hart v R”. The affidavits were sworn by Mr Kendall and produced by the Crown to prove a charge of perjury by him. They were not admissible for the truth of their contents. The Court of Appeal found that once admitted for this purpose the affidavits could then be used by Mr Kendall when he attempted by cross-examination to prove the truth of their contents.
available for the judge hearing the s 166 application to review. Here the Attorney-General relies on a passage from the Court of Appeal’s decision in Mawhinney where it was said:46
Section 167 makes clear that it is the Judge determining the issue whether an order should be made who is required to “consider” whether the proceedings are totally without merit. Although in all likelihood that Judge will carefully review the reasoning in the judgments given in the relevant proceedings, the question whether in any particular proceeding the threshold is established is for the consideration of the Judge contemplating making the order.
[74] If the reasons for judgment in the earlier proceedings are received into evidence via s 130 by the judge hearing the s 166 application, it logically follows that those reasons for judgment are being treated as admissible evidence in the s 166 proceeding. This seems to be the only way s 130 could permit them to come before the judge who hears that application.47 However, there is no probative benefit in reviewing reasons for judgments once stripped of their truth and accuracy.
[75] I consider the Attorney-General reads the relevant passage from Mawhinney too expansively. This passage should read in the overall context of the decision and the circumstances of that proceeding.
[76] In Mawhinney the parties in the s 166 application and the candidate proceedings were the same. So s 50 was not engaged. Auckland Council, which sought a civil restraint order, had inherited the legal rights and obligations of Waitakere City Council on the amalgamation of that council into the greater Auckland Council. The candidate proceedings had been brought by Mr Mawhinney and others associated with him against Waitakere City Council and Auckland Council. The Court of Appeal refers to a decade of several proceedings being issued in respect of parcels of Waitakere land against Waitakere City Council, and in due course Auckland Council by Mr Mawhinney, either in his personal capacity or as a trustee or by entities controlled by him. Thus, the general bar that s 50 imposes on the admission of the reasons for judgment in a subsequent civil proceeding would not apply, because here the relevant parties were so closely connected with the candidate proceedings that the law relating to res judicata or issue estoppel made the decisions in the candidate
46 Mawhinney v Auckland Council, above n 12, at [66] (emphasis added).
47 For admission under s 130 of the Evidence Act 2006 the evidence must be “otherwise admissible”.
proceedings binding on them. Accordingly, the circumstances in Mawhinney would not have attracted a s 50 assessment in the same way that Mr Siemer relies on the provision in this proceeding. Indeed s 50 is not expressly referred.
[77] However, in Mawhinney the relevance of issue estoppel and res judicata is mentioned more than once. Auckland Council relied on the doctrine of res judicata to prevent Mr Mawhinney from making arguments that suggested the candidate judgments (which also involved Mr Mawhinney and Auckland Council) were wrong and did not show he had brought proceedings that were totally without merit.48
[78] The Court of Appeal rejected Mr Mawhinney’s arguments that in considering the s 166 jurisdiction res judicata was no obstacle and a judge could consider whether the candidate judgments were wrongly decided in the s 166 proceedings:49
In our view Mr Mawhinney’s argument misconceives the nature and rationale of the s 166 jurisdiction. The correctness or otherwise of the judgments which are the culmination of the candidate proceedings is not the issue. The proper focus is whether the proceedings themselves were so lacking in merit that they were bound to fail.
However as Maurice Kay LJ observed in Grace a Judge must be confident that the proceeding was truly bound to fail. Such a conclusion may be possible simply by a consideration of a finding in the judgment in a proceeding where, for example, the basis of the finding is issue estoppel. However, in other cases attaining such a state of confidence may necessitate careful consideration of the factual and legal bases for the proceeding. The extent of the inquiry to be undertaken will necessarily be case-dependent.
[79] The above passages immediately precede [66]. They do not suggest that reasons for judgments in candidate proceedings form part of the inquiry or that they can support the making of a s 166 order.
[80] Further Mawhinney makes it clear that where res judicata and issue estoppel do not apply the “proper focus” of a s 166 application requires assessment of the factual and legal bases for the proceeding. The primary evidence for assessing the factual basis of a proceeding is the pleadings and evidence on which it rested. An account will be provided in the reasons for judgment that were given, but this will be
48 Mawhinney v Auckland Council, above n 12, at [62].
49 At [64]–[65] (footnotes omitted; emphasis added).
secondary evidence. If the Attorney-General’s s 166 complaint here extends to interlocutory applications taken in the candidate proceedings or an appeal against the substantive judgment in those proceedings, then evidence of the primary documents by which those steps were taken can also be produced in evidence. The formal judgment orders made in those earlier proceedings can also be produced to prove the outcome of the earlier proceedings. From these sources the judge hearing the s 166 application can then determine if the Attorney-General has proved his case or not.
[81] I accept the reasons for judgment in a candidate proceeding may conveniently summarise the pleadings and evidence, and in this way provide a helpful succinct and shorthand account from which the reader can form a view of the merits of a proceeding. But they are not the only way this understanding can be achieved. Resort to the primary documents filed by Mr Siemer and the formal judgments made thereon will also reveal whether his litigation was totally without merit or not. With a s 166 application it is for the Attorney-General to prove by admissible evidence the factual foundation to support the order he seeks. This is made clear in Mawhinney.
[82] Accordingly, I am satisfied there are several ways of reading [66] of Mawhinney, none of which supports the Attorney-General’s arguments on its effect. First, if [66] is to be read as a reference to the available use of other judgments as evidence in a s 166 proceeding, then this outcome can be explained by the fact that in Mawhinney the parties in the candidate judgments and the s 166 proceeding were one and the same. In such circumstances, by operation of the law of re judicata and issue estoppel the reasons for judgment in the candidate proceedings would have bound Mr Mawhinney and Auckland Council in the s 166 proceeding. Thus, s 50 would not exclude their production in evidence in the s 166 proceeding. However, when [66] is read in this way it becomes clear that the Court of Appeal was emphasising that it was for the judge hearing the s 166 application to form a view on whether the candidate proceedings were totally without merit.
[83] Second, the reference in [66] of Mawhinney to the judge hearing the s 166 application reviewing the reasoning in the candidate judgments may not entail those judgments being admitted into evidence at all. The Court of Appeal may simply have
been treating those reasons as available non-binding authorities to be considered as part of the legal submissions made to the Court hearing the s 166 application.
[84] Legal reasoning often proceeds by analogy. In a s 166 application it would be open to the Attorney-General to refer to decisions involving other persons where courts have found similar type claims to those brought by Mr Siemer to be totally without merit. The same could be done with decisions involving other persons whose conduct had been found to be exceptional circumstances for the second stage of the s 166 test. The purpose of doing this would be to invite the judge hearing the s 166 application to infer that the same can be said of Mr Siemer’s claims. No-one could find that objectionable. It is how common-law advocacy is advanced.
[85] Accordingly, it is hard to see why the reasoning in judgments where the courts have found Mr Siemer’s litigation lacked merit could not be referred to by the Attorney-General in this proceeding as relevant legal authorities which the judge hearing the s 166 application could be invited to follow. Used in this way the earlier judgments would not be produced as evidence. The Attorney-General would need: (a) to lay an evidential foundation for the s 166 order by independently proving the various legal proceedings Mr Siemer had either brought or attempted to bring and their outcome; and then (b) to use the reasoning in the judgments dismissing those proceedings for want of merit to persuade the judge hearing the s 166 application that he or she should reach the same conclusion.
[86] The Attorney-General did not make submissions on this possible use of the reasons for judgment in his bundle. Nor did Mr Siemer, but that is not surprising as the approach is not helpful to his case. Because this matter was not addressed I make no findings on it; I simply refer to it because it offers another way of reading [66] of Mawhinney that is contrary to the view advanced by the Attorney-General.
[87] Accordingly, I reject the Attorney-General’s interpretation of [66] of Mawhinney. If the Attorney-General’s argument were right, it would essentially mean that by a sidewind the Court of Appeal had implicitly found that s 50 did not prevent the reasons for judgment in earlier proceedings from being admitted into evidence in any application for a civil restraint order of any type by any person. That outcome
cannot be correct. Had the Court of Appeal intended to find that earlier reasons for judgments can be admitted into evidence as proof of their contents in s 166 proceedings I would expect it to have addressed s 50 and given reasons why the established law relevant to that provision did not bar admission of the reasons for judgment given in earlier proceedings. It is significant that apart from the one sentence in [66] on which the Attorney-General relies the Court of Appeal does not otherwise address the question of how the reasons for judgment in the candidate judgments are to be treated.
[88] It follows that I do not see Mawhinney providing blanket support for the admission of the various reasons for judgments in the Attorney-General’s bundle of documents. There are other documents in the Attorney-General’s bundle that Mr Siemer has also objected to on grounds of hearsay. Each document will need to be considered in terms of its admissibility under the relevant provisions of the Act.
[89] The Attorney-General’s arguments for the admission of the reasons for judgments in the bundle raise further concerns. In response to Mr Siemer’s criticisms that further and better particulars are required the Attorney-General contends that originating application is detailed and self-explanatory. In this regard he contends the candidate proceedings have been identified at paragraphs [2.4.1]–[2.4.6] of the originating application with full citations included in the footnotes to those paragraphs, and at paragraph [3] of the originating application (being the bundle of documents and judgments produced purportedly via s 130). He also contends that his application relies on the making of the s 88B Judicature Act order and recent litigation in support of the five-year order sought. These are the documents contained in the bundle that he seeks to produce pursuant to s 130. As an example, the Attorney-General refers to the alleged harassment of a respondent in one of the candidate proceedings Clayton Luke as a basis for the making of a s 166 order and contends that the bundle has a heading “Proceedings against Disputes Tribunal referee”, and seven documents within that subpart, including applications, letters, decisions and memoranda. The Attorney-General argues that Mr Siemer has not identified what further information he could reasonably require.
[90] These submissions reveal that the Attorney-General’s intended use of the decisions in the bundle of documents must go beyond simply having them available for the judge hearing the s 166 application to “review” (as per [66] of Mawhinney) in circumstances where the truth and accuracy of their contents is not being relied on to advance the Attorney-General’s case. These submissions also show that the documents in the bundle (which the Attorney-General wants to produce as evidence) are also being relied upon to provide particulars of the application for a s 166 order, in which context the Attorney-General would be presenting their contents as truthful and accurate.50 Otherwise how could he rely on them or expect others to do so?
[91] The Attorney-General tried to distinguish the Court of Appeal and Supreme Court decisions in Simunovich Fisheries Ltd and APN New Zealand Ltd v Simunovich Fisheries by arguing those decisions were confined to their facts, where one party had sought to rely on findings of fact in earlier judgments to prove the truth of statements that were the subject of defamation proceedings. I do not find the case to be so limited. The passages to which I have referred herein both from the Court of Appeal and the Supreme Court judgments essentially find the law in relation to the admission of reasons for judgment in subsequent legal proceedings that do not involve the same parties has not changed and s 50 reflects the common law position.
[92] The Attorney-General relies on Attorney-General v Siemer as authority for the proposition that earlier decisions can be produced in evidence against Mr Siemer.51 This was the case in which the s 88B Judicature Act order was made against Mr Siemer. The Full Court heard and rejected an argument that s 50 excluded admission of earlier proceedings involving Mr Siemer and third parties as evidence to support the making of a s 88B order. However, the decision of the Full Court does not refer to the Simunovich cases in either the Court of Appeal or the Supreme Court. Nor does the Full Court explain how the earlier judgments are relevant evidence given the Attorney-General said he did not rely on them for proof of facts.52 If the reasons for
50 The idea that evidence can operate as further and better particulars of the basis for a claim is also misconceived; it was rejected in Price Waterhouse v Fortex Group Ltd CA179/98 at 13. Although the Court of Appeal were referring to a statement of claim I see no reason why the principles cannot also be applied to an originating application. No-one should have to glean the details of the case against them from their opponent’s evidence.
51 Attorney-General v Siemer [2014] NZHC 859.
52 At [34].
judgments in the early cases were not relied on for this purpose it is difficult to see how they were relevant. The Full Court also does not address the matter that legal findings by judges in litigation involving Mr Siemer and third parties cannot bind Mr Siemer in litigation involving him and the Attorney-General, and therefore they are no more than expressions of opinion. Thus, the effect of s 23 of the Evidence Act on the admission of judgments involving Mr Siemer and third parties was not discussed.
[93] Accordingly, whilst I approach the decision of the Full Court with the greatest of respect, I do not consider I am bound by it. I also consider that my understanding of the appellate decisions to which I have referred herein is binding on me.
[94] Regarding Ms Jerebine’s argument that the reasons for judgments in the Attorney-General’s bundle can be admitted as public records, I disagree. The reasons for judgments are not public records as they do not meet the definition of a “public document” in s 4 of the Act. The sealed judgments do satisfy the meaning of “public document” and therefore they can be admitted as public records under s 139(1)(c) of the Act.
Application of relevant law to the documents in the bundle
[95] I now turn to assess the admissibility of each of the 37 documents the Attorney-General seeks to adduce. For ease of reference the documents are referred to by the number set out at [27] herein. I have also followed the categorisation used by the Attorney-General’s bundle.
Vexatious litigant order under s 88B Judicature Act 1908
[96] The first two decisions in the bundle are the reasons for judgment (decisions) given in this Court when it made a s 88B Judicature Act order against Mr Siemer and the decision dismissing his appeal against that order. Section 50 is not engaged because the parties are the same.
[97] Mr Siemer does not object to these decisions being admitted as background evidence. To this extent they go to show that in the past Mr Siemer has been the
subject of a similar process to s 166. This could just as easily be done by proof of the sealed judgment order made under s 88B.53 The Attorney-General has not identified how else the decisions might be relevant. This will need to be done at the hearing.
[98] The third decision Siemer v New Zealand Law Society involves Mr Siemer and a third party. This decision does two things. First, it finds as a matter of law that the s 88B order, which was of indeterminate duration, is subject to the Senior Courts Act, which has brought the s 88B order to an end. This is a legal decision that can be referred to in any legal proceeding, not as evidence but as legal authority for the duration of s 88B orders now that the Senior Courts Act is in force. Second, insofar as Palmer J expresses a view on the total lack of merit in the proceeding Mr Siemer was attempting to commence this was a fact in issue in that proceeding. Certainly, it became so once the Judge contemplated acting of his own volition to make an order under s 166. The same facts are in issue in this proceeding. The decision is also an expression of judicial opinion in a separate proceeding with a different party and to this extent its production in this proceeding would involve the introduction of hearsay opinion evidence. Accordingly, I am satisfied that ss 50 and 23 operate to make this decision inadmissible. I also consider that apart from the view Palmer J expresses about the quality of the litigation Mr Siemer proposed to bring there is nothing in this decision that is relevant to the s 166 application.
Proceedings related to Siemer v Hickson
[99] Document 4 is a draft statement of claim which Mr Siemer filed as part of his application to this Court for leave to be permitted to bring the judicial review proceeding against the named parties. This document does not engage s 50. It is relevant evidence as it demonstrates the type of claim Mr Siemer has attempted to bring against the parties. It is not hearsay as the Attorney-General will not be relying on it to prove the truth of its contents. He will be relying on it to show this is the type of allegedly hopeless claim that Mr Siemer has previously sought leave to bring. Accordingly, this document is admissible.
53 See Evidence Act 2006, s 139(1)(c).
[100] Document 5 is the decision of Peters J who reviewed the draft statement of claim (document 4) and found that she could not address the attendant application for leave to bring the proceeding because Mr Siemer had not filed an affidavit in support of the application. Rule 7.20 of the High Court Rules requires any supporting affidavit evidence be filed at the same time as the interlocutory application to which it relates. At [19] Peters J sets out what she would have expected Mr Siemer to include in an affidavit.
[101] The Attorney-General could put the draft statement of claim (document 4) and the interlocutory application for leave (which is presently not in the bundle) that was before Peters J in evidence in this proceeding. Arguments could then be formulated which drew on the insufficiencies the Judge identifies at [19] of her decision. The aim would be to show this was a step taken by Mr Siemer that totally lacked merit, or this is a piece of evidence that shows there are exceptional circumstances warranting making the s 166 order. However, Peters J’s views (as expressed in her decision, document 5) on the merits of Mr Siemer’s actions are not determinative of this proceeding. This much is made clear by Mawhinney.54
[102] Moreover, s 50 is seemingly engaged. Apart from Mr Siemer, the parties are nominally different from the present proceeding. The second defendant Mr Luke is not a party to this proceeding. The Ministry of Justice, which is the first named defendant, is a government department that employed Mr Luke. To my knowledge there is no statute that allows the Ministry of Justice to be sued in its own name. The Judicial Review Procedure Act 2016 provides that it must be read subject to the Crown Proceedings Act 1950.55 Section 14(2)(a) of the Crown Proceedings Act provides that a government department may be sued in its own name if the department “may be sued apart from this section”. Otherwise, s 14(2)(b) provides for the appropriate officer of the Crown to be sued on behalf of the government department or failing that s 14(2)(c) provides for the Attorney-General to be sued on behalf of the department.
[103] If Mr Siemer had nominated the Attorney-General as first defendant on behalf of the Ministry of Justice, s 50’s exclusory effect may have been stopped by the law
54 At [66].
55 Judicial Review Procedure Act 2016, s 6(2).
of res judicata and issue estoppel. But this did not happen. Whether the inclusion of a government department as defendant that cannot be sued in its own name can be read as a reference to the Attorney-General when there are other possibilities, such as the chief-executive of the Ministry of Justice, was not covered at the hearing before me. I consider this is something that will have to be addressed at the substantive hearing. However, unless the inclusion of the Ministry of Justice is to be read as a reference to the Attorney-General the proceeding must be understood to have included different parties from the present. In which case in principle s 50 precludes the admission of Peters J’s decision as evidence in this proceeding. The legal findings in Peter’s J’s decision are also inadmissible hearsay statements of opinion when it comes to their status as evidence in this proceeding. Accordingly, I find that in principle document 5 is inadmissible as evidence in this proceeding. However, this finding is open to correction once a view is reached on the application of res judicata and issue estoppel as outlined above. Accordingly I leave the admission of this document to be determined at a later date.
[104] Documents 6, 7 and 8 are related. Document 6 is a further application for leave to file a judicial review proceeding against Mr Luke and the Ministry of Justice.56 Document 7 is an affidavit in support of this application. Document 8 is a minute of Venning J in which the Judge found the registry should not have accepted documents 6 and 7 for filing because Peters J had already declined leave. The Judge found he had no jurisdiction to consider the application for leave. This refusal to grant leave was done by minute rather than by judgment.
[105] Documents 6 and 7 are admissible. They are not hearsay as they are not being produced to prove to truth of their contents. Document 8 is different. Section 50 operates in prescribed circumstances to exclude the admission of judgments and findings of fact contained therein. In substance the findings Venning J made for the refusal to deal with Mr Siemer’s application are judgments. In accordance with requirements Mr Siemer, who was then subject to a s 88B Judicature Act order, filed a without notice application for leave to bring a proceeding. This time he addressed
56 This document is a different application from the application to which Peters J refers, as document 6 is dated the day after Peters J’s decision. In her decision at [1] Peters J refers to an interlocutory application for leave dated 23 March 2018 as the application before her for determination.
the criticism made of him by Peters J by filing an affidavit in support of the application as well. Venning J found the second attempt was the same as the first attempt, and therefore he treated it as an abuse of process. The Judge also found he had no jurisdiction to deal with such an application. The outcome recorded in the minute was a decision that adversely affected Mr Siemer.
[106] I consider s 50 applies to more than judicial findings that are presented in a “judgment”. Judicial decisions formulated in rulings or minutes that have the substantive effect of judgments are also covered. Unless s 50 is read purposively in this way its application could be limited by the chosen form in which a judge expressed his or her factual and legal findings. Further, this interpretation is consistent with Re Siemer where the Court of Appeal found that:57
To qualify as a judgment, decree or order, there must be a finding or ruling by the Court which amounts to the determination of an issue.
[107] Accordingly, I consider the factual and legal findings made by Venning J operate as a judgment, despite being contained in a minute. Thus, the findings that Mr Siemer was attempting to bring the same proceeding before a second judge, which was an abuse of process, are excluded by s 50, which makes them inadmissible in evidence in this proceeding. Venning J’s legal findings are expressions of opinion that are inadmissible for the same reasons that I found Peters J’s legal findings were inadmissible opinion evidence in this proceeding. Further, unless the minute were admitted to prove Venning J considered the factual circumstances before him to be an abuse of process, it is otherwise irrelevant.
[108] If I am wrong on my interpretation of s 50 and factual findings expressed in a judicial minute are not covered by s 50 it would not necessarily follow that those reasons are admissible. They would then need to be considered in terms of the hearsay provisions (ss 17 and 18) of the Act. Under the common law a judge’s factual findings were inadmissible as proof of the same facts in a subsequent proceeding not involving the same parties on the ground they were hearsay.58 On this basis also I would exclude
57 Re Siemer [2020] NZCA 393 at [23].
58 See Evidence Act 2006, ss 10(1)(c) and 12(b) for the relevance of the common law to interpretation of the Act.
Venning J’s factual findings. I consider the legal findings are expressions of opinion and therefore inadmissible.
[109] Accordingly, for the above reasons I find Venning J’s minute (document 8) is inadmissible as evidence in this proceeding.
[110] Documents 9, 10, 11 and 12 relate to a proceeding in which Mr Siemer is not a named party. The applicant was his wife Jane Siemer.
[111] Document 9 is a statement of claim filed by Mrs Siemer. The document is relevant and direct evidence to prove that Mrs Siemer brought a claim in this Court against the named parties. Insofar as the Attorney-General seeks to argue that Mr Siemer has sought to either bring litigation under the cloak of his wife’s name or has instigated her to bring litigation that he is barred from bringing, document 9 is relevant to prove someone connected with him has commenced litigation. That is about as much as it can prove on its own but taken together with other relevant evidence it would have a probative connection with the hypothesis the Attorney-General seeks to prove.59 Accordingly I find it is admissible.
[112] Document 10 is an affidavit filed by the second respondent, Mr Luke, in a proceeding initiated by Mrs Siemer in support of a strike out application brought by the Ministry of Justice, the first named respondent. The affidavit was evidence prepared in another proceeding to support an interlocutory application, all of which is permissible under the High Court Rules. Rule 7.20 provides for evidence in interlocutory civil proceedings to be given by affidavit. However, in this proceeding Mr Luke’s affidavit is hearsay and inadmissible (s 17). The statements made therein can only be relevant if relied on to prove the truth of what is stated. Insofar as the affidavit may be a mix of statements to prove the truth of the matter stated and statements relied on for other reasons of proof the presence of the hearsay material necessarily leaves the affidavit open to exclusion, because if Mr Luke’s affidavit is admitted its contents would be admissible for all purposes.
59 In Commerce Commission v Bunnings Ltd, above n 16, Kós P referred to evidence existing to prove or disprove hypotheses. See [47] herein.
[113] The Attorney-General has advanced no reason why he cannot obtain direct evidence from Mr Luke for this proceeding.60 Here the Attorney-General seeks to use as evidence against Mr Siemer an affidavit sworn in another proceeding in which Mr Siemer was not a party. Without calling Mr Luke as a witness in this proceeding Mr Siemer had no opportunity to cross-examine Mr Luke in the earlier proceeding and he will have no opportunity in this proceeding as the intention is to produce the affidavit via s 130. The idea that affidavit evidence called in one proceeding can then be admitted via s 130 without either the agreement of Mr Siemer or the Attorney-General addressing ss 17 and 18 of the Act is something I have not struck before. It is contrary to how proof of evidence is usually approached. That it should be an approach taken by the Attorney-General is even more surprising. Put shortly, document 10 is hearsay and therefore inadmissible.
[114] Document 11 is the decision of Hinton J in the proceedings brought by Mrs Siemer and in which Mr Siemer was not a party. The reasons for judgment are excluded as evidence in this proceeding by s 50. The Judge’s findings on the legal points in issue in the proceeding before her are, as against Mr Siemer in this proceeding, expressions of hearsay opinion. They are not binding on him and they are not admissible against him as evidence in this proceeding. Apart from the opinion the Judge expresses about Mr Siemer’s involvement in the proceeding there is nothing else in the decision that is relevant to the facts in issue in this proceeding. Accordingly, I find it is inadmissible. Evidence of the sealed judgment delivered by Hinton J will be admissible provided it meets the tests for relevance.
[115] Document 12 is a judgment of Courtney J in the High Court in which the Judge dismissed an application by Mrs Siemer on the ground she had not appeared to advance her application, as she was required to do. For the same reasons that Hinton J’s reasons for judgment are excluded by s 50 and for being hearsay opinion evidence so are the reasons of Courtney J. Those reasons say nothing about Mr Siemer. Thus, they are irrelevant as evidence in this proceeding.
60 See Evidence Act 2006, s 18.
[116] Document 13 contains two applications for review of decisions of the Standards Committee of the New Zealand Law Society filed on the same date. The Attorney-General relies on this document presumably as proof of a meritless complaint made by Mr Siemer and Mrs Siemer against [Redacted]. Viewed in this light it is relevant to the s 166 application. It is not hearsay as the Attorney-General does not rely on the document to prove the truth of its contents. Further, if Mr Siemer choses to give evidence in this proceeding the document could not be a hearsay document even if relied on to prove the truth of its contents because of the definition of “hearsay” evidence in s 4 of the Act. Accordingly, this document is admissible.
Document 14 is the decision of the Legal Complaints Review Officer (LCRO) dated 18 December 2019 [Redacted material removed in order for this judgment to comply with the suppression order made by the LCRO suppressing the name of one of the parties and the decision the LCRO made.
The decision falls within s 50(1A). It is evidence of a decision or a finding of fact by a Tribunal which is not admissible in any proceeding to prove the existence of a fact that was in issue in the matter before the Tribunal. The facts in issue before the LCRO involved whether or not
[118] Attached to the LCRO decision of 18 December 2019 is a letter of complaint by Mr Siemer dated 4 April 2019 to Yang Lim. Ms Jerbine did not address the relevance of this document. It is difficult to make sense of this letter because it addresses an earlier response from that is not in evidence. It is not listed in the list of contents and therefore I am not sure if it is present by mistake rather than intention. I leave its status for later determination.
[119]The bare facts that
reasons why
is admissible against Mr Siemer. The
are excluded by s 50(1A).
The various applications for review that the LCRO refers to in his decision will be available to the Attorney-General, and if those applications are put before the judge
hearing this proceeding, he or she may well reach the same view as the LCRO. But the fact the LCRO found as outlined
in his decision is not admissible evidence in this proceeding. If the LCRO is not considered a Tribunal in terms of s 50(1A) the decision is a hearsay document in terms of s 17 and it contains opinion evidence excluded by s 23. Thus, it would still be inadmissible.
[120] Document 15 is a statement of claim being a judicial review brought by Mr Siemer against the LCRO and This document falls outside ss 50 and 17. The Attorney-General relies on the document to show Mr Siemer is bringing legal proceedings that are totally without merit or there are exceptional circumstances which warrant the s 166 order being made against him. The document is relevant evidence that goes to prove these hypotheses. It is admissible.
[121] Document 16 is a joint memorandum of the Attorney-General and seeking amendments to a suppression order made by the LCRO in relation to
The document informs this Court that is the subject of a suppression order in relation to the Obviously, insofar as the Attorney-
General in this proceeding refers to matters involving
the suppression order would have barred the identification of to this Court and accordingly it would have required amendment. Evidence of the suppression order also means this Court is fully informed as to the status of the suppression order made by the LCRO, and therefore it will be alive to the question of whether suppression orders relating to are needed in this proceeding. In that
sense I would expect the existence of the suppression order to be brought to the attention of this Court in a case management hearing or at the commencement of the substantive hearing of the s 166 application.
[122] Because the Attorney-General has approached document 16 as a piece of evidence to be produced in this proceeding and Mr Siemer opposes its production on the grounds it is not admissible, I am obliged to consider this document. The makers of the document are Mr McKillop who signed as counsel for the Attorney-General and who signed as a respondent. The document was not prepared in this proceeding.
It was prepared to invite the LCRO to amend the suppression orders he had made. I
understand Mr McKillop is counsel in the Registrar’s application, which I have found should be consolidated with this proceeding. He also prepared the written submissions and bundle in the present proceedings. It seems unlikely therefore that Mr McKillop will be a witness. is potentially a witness in this proceeding, in which case by virtue of the definition of hearsay in s 4 document 16 would not be hearsay. In that case the only remaining issue would be its relevance. However, if is not a witness in this proceeding the document meets the definition of hearsay under s 17 and would therefore be inadmissible, unless it came within an exception to the hearsay rule. Given the uncertain context surrounding this document it is best if its admission is determined later.
[123] Document 17 is a memorandum by Mr Siemer opposing the amendment to the suppression order. The document is presumably included in the bundle with document 16 in order to provide the judge who hears this proceeding with an example of the type of communications Mr Siemer makes and how he conducts himself. To this extent the document is relevant. It is not affected by ss 17 or 50. Accordingly, it is admissible.
[124] Document 18 is a letter from the LCRO to Mr McKillop copied to Mr and Mrs Siemer. The letter refers to the joint memorandum from Crown Law and
and Mr Siemer’s memorandum in response. The LCRO refuses to vary the suppression decision on the ground it would be inappropriate and there is no jurisdiction to do so. If s 50(1A) applies this document is inadmissible. If s 50(1A) does not apply the document is hearsay. However, as the recipient of the letter
could provide an evidential foundation for its admission, should he give evidence in this proceeding. However, it is difficult to see how document 18 is relevant. This document is presently inadmissible.
[125] Document 19 is a decision of this Court in a judicial review brought by Mrs Siemer against the District Court North Shore, Disputes Tribunal North Shore and Jude Hickson. Mr Siemer is not a party in this judicial review. In the decision Downs J concludes that the judicial review is brought to harass and is almost certainly Mr Siemer’s. Mrs Siemer wanted leave to bring the judicial review as by now she was subject to an order Hinton J had made under s 166. Downs J considered whether Mrs Siemer should be granted leave to continue with the claim, having filed it before
the civil restraint order was made against her. The facts in issue were whether she should be granted leave to bring the claim which in turn hinged on whether it had any merit. Downs J concluded:61
I am satisfied leave should not be granted. To foreshadow my reasoning, the claim is brought to harass, and is almost certainly Mr Siemer’s. Nothing about the claim merits judicial review of the modest matters brought to the attention of the Disputes Tribunal.
[126] Insofar as the Attorney-General seeks to argue that Mr Siemer is initiating legal proceedings screened by other persons, the Attorney-General will need to put forward evidence of those proceedings and establish that this is in fact what Mr Siemer is doing. The conclusions reached by Downs J that Mr Siemer was behind Mrs Siemer’s attempt to bring the judicial review for which she sought leave were made in circumstances where: (a) Mr Siemer was not a participant in the proceeding; and (b) he had no opportunity to be heard on the question of whether he was using Mrs Siemer as a front for litigation he wished to pursue. The reasons given in the judgment are excluded by s 50. They are not binding on Mr Siemer and s 50 prevents them from being used as evidence against him. Apart from the findings relating to Mr Siemer, this judgment has nothing to do with Mr Siemer. It is not relevant. Accordingly, document 19 is inadmissible.
Attempt to commence judicial review proceedings against Deputy Registrar of the Supreme Court
[127] Document 20 is a minute of Palmer J. It follows a judgment Palmer J delivered in which he found Mr Siemer’s status as a vexatious litigant had expired.62 The minute makes no adverse orders against Mr Siemer, however, in the minute Palmer J invited the Attorney-General to file submissions on whether Mr Siemer should be further restrained from commencing proceedings, this time under s 166. The Attorney-General did not do so.63 Palmer J also contemplated making an order under s 166 of his own motion, but decided against doing so.64
61 Siemer v District Court, North Shore [2019] NZHC 346 at [10].
62 Siemer v New Zealand Law Society [2019] NZHC 3075.
63 Re Siemer CIV 2019-404-844 (Minute No 4 of Palmer J) at [4].
64 At [8].
[128] The minute is not a judgment because it made no findings or determination that was adverse to Mr Siemer. This is what the Court of Appeal found in Re Siemer, which is binding on Mr Siemer.65 This minute differs from document 8, the minute issued by Venning J. Accordingly, s 50 is not engaged.66
[129] Because the Court of Appeal found that Palmer J’s minute was not a judgment this means the law of res judicata and issue estoppel are also not engaged in relation to the minute. Nothing said in the minute is legally binding on Mr Siemer. Seen in this way the minute is simply an expression of opinion by Palmer J as to how close he came to applying s 166 and why he drew back from doing so. It therefore falls within s 23 of the Act and is inadmissible for this reason. Also in its present form the expression of opinion is hearsay, as the maker is not giving evidence in this proceeding. Accordingly, the minute is inadmissible.
[130] Document 21 is the Court of Appeal’s decision in Re Siemer, which dismissed Mr Siemer’s attempt to appeal against the minute of Palmer J. As mentioned above, the Court of Appeal found there was no decision or judgment in the minute of Palmer J which could be appealed. Accordingly, it is a decision for the purpose of s 50. It is also a decision that is binding on Mr Siemer in terms of the law of res judicata and issue estoppel. Accordingly, it may not be excluded from proof by s 50.
[131] Document 22 is the judgment of O’Regan J in the Supreme Court. Following the delivery of the Court of Appeal’s judgment in Re Siemer, Mr Siemer sought leave to appeal to the Supreme Court and he sought a waiver of the $1,100 filing fee. Document 22 is the refusal to waive the filing fee. Document 23 is a judgment of the Supreme Court dismissing Mr Siemer’s application for leave to appeal against the decision of the Court of Appeal (striking out the attempted appeal against the minute of Palmer J).
[132] The Attorney-General wants to produce the documents 21, 22 and 23 in evidence against Mr Siemer and he opposes. The only relevant ground of opposition
65 Re Siemer, above n 57. It was found to be no more than an expression of view short of a conclusion and was not therefore susceptible to appeal.
66 See Re Siemer, above n 57, at [23].
that I can see is relevance. Here the Attorney-General is seeking to produce judgments as evidence in the present proceeding. Section 50 would seemingly apply here, however the section does not affect the operation of the law relating to res judicata or issue estoppel. The Attorney-General never addressed whether the law of res judicata or issue estoppel would permit this judgment to be presented in evidence. Insofar as the reasons given in the judgment show that Mr Siemer was attempting to pursue an appeal which the Court of Appeal had already rejected, the law of res judicata and issue estoppel could prevent Mr Siemer from denying this. If he is bound by the findings s 50(1) would not exclude the judgments. The question would then be whether they were relevant. Mr Siemer is plainly unhappy about the opinions expressed by Palmer J in the minute. On the other hand, Palmer J made no adverse finding against Mr Siemer. He was told that by the Court of Appeal and subsequently by the Supreme Court. They are the reasons why he could not appeal against the minute. His pursuit of the appellate process in those circumstances could support an inference that he has a tendency to pursue hopeless litigation. Whether s 50 would exclude the reasons for judgment and factual findings in documents 21, 22 and 23 hinges on whether the law relating to res judicata or issue estoppel binds Mr Siemer. Neither he nor the Attorney-General addressed this point and for that reason I leave that matter open to be dealt with later.
[133] Document 24 is an application for review of a refusal by the Deputy Registrar of the Supreme Court to accept a statement of claim seeking judicial review for filing. The decision was delivered in a proceeding separate from the present. However, the parties are Mr Siemer and the Deputy Registrar of the Supreme Court. The Deputy Registrar may qualify as a privy of the Registrar of the Supreme Court. The Registrar’s application is to be consolidated with the Attorney-General’s application. Where the parties or their privies are the same res judicata and issue estoppel can be engaged. Findings made in one proceeding are binding in a subsequent proceeding where those principles apply. For the same reasons as apply with documents 21, 22 and 23 I consider the fact I have heard from neither the Attorney-General nor Mr Siemer on the application of res judicata or issue estoppel makes this matter something to be left for later determination.
[134] Document 25 is the Supreme Court’s decision on an application for recall of its judgment of 27 November 2020 (document 24). Document 25 also raises the question of whether res judicata and issue estoppel now apply and for those reasons Mr Siemer is bound in this proceeding by the findings made in the Supreme Court’s decision. Accordingly, I do not rule on the document’s admissibility.
[135] Document 26 is the Supreme Court’s decision on an application for recall of that Court’s judgment of 11 February 2021 (document 25) refusing to recall the judgment it issued on 27 November 2020. This judgment falls into the same category as document 24 and 25 and for that reason I do not rule on its admissibility.
Three judicial reviews against Registrar of the Supreme Court
[136] Document 27 is a minute of Downs J dated 12 February 2021. The minute shows that Mr Siemer filed a judicial review and an amended statement of claim in this Court in relation to decisions the Registrar of the Supreme Court made between 15 and 21 December 2020. Downs J found the claim, and the amended claim which shortly followed, were an abuse of process and he struck them out. Although presented in a minute, Downs J made adverse findings and an order adverse to Mr Siemer, so in that sense the content of the minute constitutes a judgment. The question is whether the reasons given in this judgment for the strike out would be excluded under s 50 or whether they would be admissible through operation of the law relating to res judicata and issue estoppel. Accordingly, for the same reasons as before I do not rule on the admission of this document. It will need to be determined at a later date.
[137] Document 28 is a judgment of Isac J on a strike out application. Mr Siemer had filed proceedings seeking judicial review in the Wellington Registry of this Court of decisions of the Registrar of the Supreme Court. The question is whether the application of s 50 is excluded by the operation of the law of res judicata or issue estoppel. However, because neither of the parties were heard on that point I leave that to be determined at a later date.
[138] Document 29 is a statement of claim dated 6 April 2021 brought by Mr Siemer against the Registrar of the Supreme Court. This is the statement of claim in the proceeding that is now consolidated with this proceeding. It is unusual in consolidated
proceedings for the statement of claim in one proceeding to be produced in evidence in the other proceeding. It may be the relevance of the document’s production in evidence is questionable. At the time it was included in the Attorney-General’s bundle of documents there was no consolidation. Now that the two proceedings are consolidated the Attorney-General may wish to rethink whether document 29 is to be admitted in evidence. Accordingly, I leave the matter for later determination.
Collateral attacks on earlier judgments
[139] Document 30 is a minute of Cooke J dated 1 June 2021. Mr Siemer had brought judicial review proceedings to challenge a refusal of the Registrar of the Supreme Court to provide him access to a court document. The Judge makes findings on the disposition of the judicial review that are favourable to Mr Siemer, by directing the Attorney-General to take steps to advance the review but it was then to be adjourned until a Court of Appeal decision was delivered on the subject of whether Mr Siemer was still subject to the s 88B order. Because the parties are Mr Siemer and the Registrar of the Supreme Court the operation of s 50 will be affected. For that reason the admission of this document should be determined later.
[140] Document 31 is a minute by Downs J issued in a separate proceeding that involved persons other than Mr Siemer. However the minute deals with Mr Siemer’s request for access to the Court file of that proceeding. The request for access is partially declined. Thus, the minute: (a) involves a decision that is adverse to Mr Siemer; (b) relates to a matter he raised with the Court; and (c) was issued to him. Accordingly, it is not excluded by s 50. Nor is it as a hearsay document. The difficulty here is relevance. Mr Siemer wanted access to the Court file of another person who has previously been declared a vexatious litigant. Downs J makes critical comments about the character of steps taken by this person. I cannot see how it can be relevant to the s 166 application. Accordingly, I find document 31 is inadmissible on the basis of irrelevance.
[141] Document 32 is a decision issued by Downs J. The parties are Mr Siemer and the Auckland High Court. In this decision Downs J refuses to grant leave to Mr Siemer to appeal against the refusal to access court documents (document 31). The parties
are not the same parties as those in the consolidated proceeding. The decision is excluded by s 50 and s 23. Accordingly, I find document 32 is inadmissible.
[142] Document 33 is a decision by Van Bohemen J in which the Judge dealt with an application to review the decision of Downs J (document 32). The reasons for judgment would ordinarily be excluded by s 50 and therefore inadmissible. However, with this application for review the parties are the same as in this proceeding. Therefore, admission of the reasons for judgment may be affected by the law of res judicata or issue estoppel. Accordingly, I leave this matter for later determination.
[143] Document 34 is a decision by Van Bohemen J in which the Judge refused to recall his decision (document 33). This document is in the same category as document
33. It involves the admissibility of reasons for judgment which are generally excluded by s 50. However, given the parties are the same as in this proceeding res judicata and issue estoppel may affect the operation of s 50. Accordingly, I leave the matter open for later determination.
[144] Documents 35, 36 and 37 are a series of reasons for judgment on the same topic which were delivered by this Court, the Court of Appeal and the Supreme Court. Mr Siemer was a party, but the other parties are not part of this proceeding. For this reason, I consider the reasons for judgment in all three documents are excluded by s 50. The reasons for judgment also include hearsay factual statements and inadmissible legal opinion. Accordingly documents 35, 36 and 37 are inadmissible.
[145] The result of the consolidation of the Attorney-General’s application with the Registrar’s application is that reasons for judgment relating to the proceedings Mr Siemer has attempted to bring against the Registrar of the Supreme Court or the Deputy Registrar of that Court are potentially not subject to the exclusion of s 50(1) because of the law of res judicata or issue estoppel. This is something that was not addressed (perhaps because it did not occur to anyone at the time) when I heard from the parties on consolidation. If consolidation will lead to the admission of otherwise inadmissible and prejudicial evidence that can be a reason for not ordering consolidation.
[146] My view is that here the benefits of consolidation outweigh the prejudicial impact of the evidence that may be admitted by operation of the law of res judicata and issue estoppel. Some of the subject decisions contain no adverse comments about Mr Siemer. Others do, but those comments cannot override the primary obligation of the judge who hears the s 166 application to reach his or her own view on the character of Mr Siemer’s conduct. Accordingly, my preliminary view it that there is no need to re-visit the question of consolidation. Mr Siemer is the person who may be adversely affected by the consequences I have identified. He sought strike out of the Attorney-General’s application, but was prepared to consent to it being consolidated with the Registrar’s application and transferred to the Wellington registry of this Court. He may not have done this had he been aware of the impact of res judicata and issue estoppel on the operation of s 50. Because this matter was not addressed at the hearing I would be prepared to re-visit the consolidation decision at his request. Although the Attorney-General opposed consolidation he has gained a benefit from it with evidence, that would otherwise be excluded, now being potentially admissible. I see no reason, therefore, to entertain a request from him to re-visit the consolidation decision.
Result
[147] I direct that this proceeding be consolidated with Siemer v Registrar of the Supreme Court CIV-2021-485-177 and transferred to the Wellington Registry of this Court.
[148]The application for better and further particulars is adjourned.
[149]The following pieces of evidence are inadmissible:
(a)Documents 3, 11, 12, 18, 19, 32, 35, 36 and 37: reasons for decisions of Siemer v New Zealand Law Society [2019] NZHC 3075; Siemer v Ministry of Justice [2018] NZHC 646; Siemer v Attorney-General [2018] NZHC 3406 201; Siemer v New Zealand Law Society [2018] NZHC 2400; Siemer v District Court, North Shore [2019] NZHC 346; Siemer v Auckland High Court [2019] NZHC 3393; Siemer v Auckland High Court [2020] NZHC 3072; Siemer v Auckland High Court [2021] NZCA 487 and Siemer v Auckland High Court [2021] NZSC 120.
(b)Document 8: Siemer v Ministry of Justice HC Auckland CIV-2018-404- 507 and -627, 19 April 2018 (Minute of Venning J);
(c)Document 10: Affidavit of Clayton Luke dated 24 July 2018 (CIV-2018-404-809);
(d)Document 14: Siemer v [Redacted] LCRO 220/2018, 221/2018, 047/2019, 18 December 2019;
(e)Document 18: Letter from LCRO to Crown Law dated 5 October 2021;
(f)Document 20: Re Siemer HC Auckland CIV-2019-404-844, 28 February 2020 (Minute No 4 of Palmer J);
(g)Document 31: Rafiq v Whata HC Auckland CIV-2019-404-934, 24 October 2019 (Minute of Downs J);
[150]The following pieces of evidence are admissible:
(a)Document 4: Draft statement of claim dated 23 March 2018 (CIV-2018-404-507);
(b)Document 6: Without notice application for leave to file judicial review dated 12 April 2018 (CIV-2018-404-627);
(c)Document 7: Affidavit of Vincent Siemer in support dated 12 April 2018 (CIV-2018-404-627);
(d)Document 9: Statement of claim dated 23 April 2018 (CIV-2018- 404-809);
(e)Document 13: Review applications LCRO 220/2018, 221/2018;
(f)Document 15: Statement of claim dated 19 January 2021 (CIV-2021-404-99);
(g)Document 17: Memorandum of Mr Siemer opposing amendment to suppression order dated 1 October 2021.
[151] The admissibility of the following pieces of evidence is to be determined at a later date: document 5; the unnumbered attendant (letter dated 4 April 2019) to document 14, and documents 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 33, 34, 35, 36 and 37.
[152] Regarding costs, Mr Siemer has been largely successful. As a self-represented litigant he is not entitled to an award of costs. Accordingly, I find that costs lie where they fall.
Duffy J
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