Attorney-General v Siemer
[2013] NZHC 1664
•3 July 2013
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2012-404-008 [2013] NZHC 1664
IN THE MATTER OF an application under section 88B of the
Judicature Act 1908
BETWEEN
ATTORNEY-GENERAL Applicant
AND
VINCENT ROSS SIEMER Respondent
Hearing: 27 June 2013 Counsel:
D J Perkins for applicant
T Ellis and G K Edgeler for respondentJudgment:
3 July 2013
INTERLOCUTORY JUDGMENT OF DOBSON J
[1] In these proceedings, the Attorney-General seeks to invoke s 88B of the Judicature Act 1908 for orders that Mr Siemer not commence any further proceedings without the leave of the Court, and that existing proceedings not be continued by him without such leave. The second amended statement of claim filed in July 2012 pleads that 20 proceedings, 18 of them filed in the High Court and two in the District Court between 2003 and February 2012, involved Mr Siemer instituting vexatious proceedings.
[2] In a statement of defence dated 20 May 2013, Mr Siemer essentially admits the existence of each of the proceedings, but denies that any of them are vexatious.
[3] Until recently, the proceedings have been managed by Miller J. They were assigned to me following his appointment to the Court of Appeal.
ATTORNEY-GENERAL v SIEMER [2013] NZHC 1664 [3 July 2013]
[4] Before that appointment was announced, Miller J had allocated two hearing dates. First, on 24 June 2013, for an application on behalf of Mr Siemer for Miller J to recuse himself from sitting on the case. Secondly, on 27 June 2013, to review various interlocutory issues which had been identified with counsel in telephone
conferences, including:
the manner of evidence for the Attorney-General’s claim;
the scope and form of substantive hearing or hearings; and the scope of relevant discovery obligations.
Potential recusal issues
[5] On being assigned to the proceedings, I convened a telephone conference with counsel on Friday, 21 June 2013 to review the scope of issues to be argued at the hearing that Miller J had allocated for Thursday, 27 June 2013. It was implicit in the course of that telephone conference that the hearing in relation to Miller J’s recusal would not proceed on 24 June 2013.
[6] In the course of that telephone conference, I raised with Mr Ellis the limited extent of my previous involvement with two sets of proceedings commenced by Mr Siemer.1 I indicated to Mr Ellis that I did not see the extent and circumstances of that involvement as giving rise to any basis that might require my recusal. I also indicated that if he was instructed by Mr Siemer to take a different view, then that ought to be conveyed to the Court as a matter of urgency.
[7] When the 27 June 2013 hearing commenced, Mr Ellis tendered to me an affidavit sworn by Mr Siemer on 26 June 2013. The affidavit deposed that he was suing me “… for breach of [his] due process rights in the judicial review [he] brought last year against the Judicial Conduct Commissioner”. The statement of claim in those proceedings, which cite the Wellington High Court as first defendant
and me as second defendant, was attached to Mr Siemer’s affidavit.
1 Siemer v Judicial Conduct Commissioner HC Wellington CIV-2012-485-2419, 24 April 2013 and CIV-2012-485-2546, 13 March 2013.
[8] I had absolutely no prior knowledge of the existence of those proceedings, and no forewarning of any sort that Mr Siemer had commenced, or was intending to commence, proceedings against me.
[9] Mr Ellis stated that he was not pursuing an application for my recusal. Rather, he was conveying Mr Siemer’s request, in light of the content of the affidavit he had just handed to me, that I consider whether I ought, of my own initiative, to recuse myself from further involvement in the Attorney-General’s proceedings.
[10] I took time to consider Mr Siemer’s affidavit and the allegations made in the statement of claim attached to it. Having done so, I advised counsel that I did not consider it either necessary or appropriate to recuse myself from involvement in the Attorney-General’s proceedings.
[11] The allegations made in Mr Siemer’s statement of claim against me relate to the lawfulness or propriety of steps taken by me in the course of discharging judicial duties. All of the criticisms are of a type which, in other contexts, might have been pursued by an appeal from decisions adverse to Mr Siemer, or possibly challenged by way of an application for judicial review. The relief sought in the statement of claim is a declaration that I breached statutory obligations owed to Mr Siemer, and acted improperly by conveying my decision to dismiss an interlocutory application he had brought in an “unrecorded administrative minute”.
[12] In these circumstances, I do not treat the existence of a challenge by Mr Siemer to steps I have taken in other proceedings as constituting a sufficient ground for my recusal in the present proceedings. If the pursuit of a challenge by way of appeal or otherwise to a decision I had made adverse to a litigant in a first set of proceedings was, of itself, a bar to my presiding in a second set of proceedings to which that litigant was a party, it would unnecessarily constrain the rostering of cases and therefore the work of the Court.
[13] As all judicial officers must, I respect a litigant’s entitlement to pursue all legitimate steps to challenge the correctness of decisions I have made in proceedings to which the litigant is a party. In the present circumstances, I am personally
indifferent to the future of Mr Siemer’s proceedings in which I am cited as second defendant. I would expect a reasonable, fully informed observer to appreciate the indifference that judicial officers display to having the correctness of their decisions challenged. Accordingly, the existence of such a challenge does not require recusal in the present proceedings.
Scope of evidence in support of the Attorney-General’s case
[14] A preliminary issue that had been identified by Miller J from telephone conferences with counsel was the means by which the Attorney-General would seek to make out the basis of the claim for orders under s 88B. The terms of the section arguably suggest an onus on the Attorney-General to establish that the respondent has instituted vexatious legal proceedings “persistently and without any reasonable ground”. Accordingly, Mr Ellis, on behalf of Mr Siemer, signalled an approach that would require the Attorney-General to establish that Mr Siemer did not have reasonable grounds for each of the proceedings alleged to be vexatious. Mr Ellis foreshadowed an expectation that this element of the case for the Attorney-General would require witnesses, who had been meaningful participants in defending the respective proceedings, to give evidence about the manner in which the proceedings had been pursued. He anticipates instructions to cross-examine on that topic.
[15] The Attorney-General intends to rely on the content of the more important documents from each set of proceedings. Mr Perkins suggested those documents would speak for themselves in terms of making out the claim as the Attorney- General perceives it. If these documents had to be produced by a witness, it would be a clerk or junior solicitor who had been tasked to search the Court files, provide copies of them, and thereafter produce them to the Court. It would not be a witness who was able to speak about the documents by virtue of a knowledgeable involvement in the proceedings at the time they were current.
[16] Mr Ellis argued that that approach would be inadequate. He submitted it would lead to an uneven contest where the Attorney-General invited the Court to analyse the documents and find that the totality of them made out the elements required to be proven by s 88B, whereas Mr Siemer would respond by evidence
addressing what he perceives to be the reasonable grounds for instituting the legal proceedings in the circumstances that he did.
[17] Mr Perkins observed that Mr Ellis’s approach would be akin to the applicant calling evidence to confirm, from that witness’s perspective, the correctness of the circumstances in which each of the proceedings were determined adversely to Mr Siemer. Given full range, it could readily expand into re-litigating the merits of the terms on which each proceeding had been dealt with. Mr Perkins indicated that the Attorney-General would not pursue the proceedings on that basis, and he argued that a defendant could never assert an entitlement to dictate the scope and content of otherwise admissible evidence that a plaintiff had to call in endeavouring to make out the plaintiff’s claims.
[18] Mr Ellis’s concerns cannot justify any direction from the Court as to the scope of the evidence required to be adduced on behalf of the Attorney-General. That is a tactical decision entirely for the Attorney-General. If Mr Ellis is right as to the scope of the analysis that the Court has to undertake, the Attorney-General has certainly been put on explicit notice of this ground for challenging the claim. The Attorney-General will be taken to have proceeded to trial on his view as to what is necessary, running whatever risks arise at the substantive hearing of that being inadequate to discharge the onus on the Attorney-General.
The law on application of s 88B
[19] One cause of the signalled differences in approach between the parties was how the existing authorities on s 88B are to be applied.
[20] Mr Perkins anticipates the evidence being presented consistently with the reasoning of the Court of Appeal in Brogden v Attorney-General.2 In addition, Mr Perkins cited three High Court decisions on vexatious litigants, where the Court has consistently undertaken an objective assessment of the history of the proceedings
cited in support of an application.3
2 Brogden v Attorney-General [2001] NZAR 809 (CA).
3 Attorney-General v Collier [2001] NZAR 137 at [40]; Attorney-General v Palmer [2005] NZAR
46 at [31] and Attorney-General v Slavich [2013] NZHC 627 at [11].
[21] On this approach, the evidence of Mr Siemer’s subjective motivation for a particular set of proceedings would not be relevant. Whilst he may cite reasonable grounds for the litigious initiatives, that reasonableness would be assessed objectively.
[22] Mr Ellis did not submit that the approach to such applications, as considered by the Court of Appeal in Brogden, was distinguishable in the present circumstances. Rather, he wishes to preserve his entitlement to argue that Brogden is wrong, as a matter of law. Mr Ellis outlined some of the reasons why he would urge the Court of Appeal to now take a somewhat different approach to proof of vexatious litigation.
He suggested reliance on a decision of the Supreme Court of Western Australia4
which Mr Ellis wishes to argue applies a different test requiring litigation to be recognised as “utterly hopeless”. Mr Ellis would suggest that test better reflects the requirements on the Attorney-General in making out the conditions for orders under s 88B.
[23] Mr Ellis invited me to make a ruling as to the law that would apply in considering the present application, which would provide him with a judgment that he could appeal prior to the substantive determination of the Attorney-General’s application. He argued that the manner of defence of Mr Siemer’s position would be different if Brogden and other existing New Zealand authorities continue to apply, rather than the different approach he contends for.
[24] Mr Perkins disputed that there was any appropriate context in which to provide a declaration as to the terms on which existing law would apply at the substantive hearing. He characterised the request as being made in a vacuum before the Court was seized of the context in which the proceedings relied on for the allegation of vexatiousness had been traversed. It was entirely predictable that the Attorney-General would rely on existing law as to how the onus under s 88 should be discharged, so there was no relevant uncertainty that had to be resolved before the
substantive hearing.
4 Crown Solicitor for Western Australia v Michael WASC CIV2079/1994, 30 July 1998.
[25] I am not prepared to pre-empt the substantive determination of the manner in which existing law on applications under s 88B should apply in Mr Siemer’s case. First, it is contemplated that the application be determined by a Full Court, and the judges sitting ought properly to come to this issue untrammelled by any preliminary ruling on the point. Secondly, the way the approach in Brogden is to be applied should be considered in the context of the evidence adduced on behalf of the Attorney-General in support of the application. As Mr Perkins pointed out, the Court may be satisfied that grounds for an order are made out at any one of a number of levels of consideration of the history of proceedings commenced by Mr Siemer. (That is not stated to foreclose the option of the Court finding that proceedings have not been instituted vexatiously on any level of analysis.)
[26] There is nothing here in the nature of an issue of law that might appropriately be determined prior to trial. Nor was the issue advanced on the basis that there is some unresolved inconsistency or uncertainty in the New Zealand authorities. To the extent counsel analysed the small number of cases on applications under s 88B, the approach to application of the section appears tolerably consistent.
[27] Further, an aspiration on Mr Siemer’s part to contest an application under s 88B on a different basis from that provided for by the Court of Appeal does not constitute a sound basis for providing a ruling on whether some different approach should apply. Mr Ellis’s argument demonstrated that he understands the effect of Brogden, but he does not want the approach it contemplates applying to the case against Mr Siemer. It will be for him to argue for a different test, or different approach, in light of the evidence and submissions in support of the application.
Mode of evidence – adducing documents
[28] Pleadings, and records of judicial determinations in the various proceedings, are public documents of the type contemplated in s 130 of the Evidence Act 2006. The procedure provided for in s 130 to adduce documents without being produced by a witness is sensible, and is appropriately invoked where that course can be adopted without causing prejudice to an opposing party. From the preliminary review of the parties’ respective positions that I have heard thus far, it appears appropriate to
explore the prospect of having documentary evidence being adduced pursuant to s 130, except to the extent that Mr Siemer maintains an objection to the Attorney- General doing so, which is then upheld.
[29] It appears likely that the Attorney-General will rely on a relatively substantial volume of documents from the Court files in each of the relevant proceedings. It is also possible that, in respect of some proceedings, Mr Siemer would wish the Court to have additional documents from the Court files available to it.
[30] Without making specific directions on the process, I have encouraged co-operation between counsel on the basis that Crown Law will serve on Mr Ellis’s office copies of the documents it intends to rely on, on a proceeding by proceeding basis. Thereafter, Mr Ellis will take instructions on the basis for any objection that Mr Siemer wishes to maintain to admission of those documents in reliance on s 130, and also to identify any additional documents from the Court files for those proceedings that Mr Siemer wishes to have placed before the Court.
[31] I anticipate that that process should be completed in respect of all
20 proceedings by, at the latest, Friday, 13 September 2013. When that point is reached, I contemplate that Crown Law will serve a formal notice under s 130, referring to the sets of documents previously served, and affording Mr Ellis a period of a further two weeks to settle the final form of a formal notice of objection, to the extent that any objection is to be maintained.
Discovery
[32] Mr Perkins accepts that the Attorney-General ought to provide discovery. He treats the process as essentially confined to the documents that the Attorney-General will rely on from each of the proceedings and therefore that the disclosure task will be effected by providing copies of those documents to Mr Ellis. To the extent that those documents are selected from fuller sets of the documents filed in the respective Court proceedings, all such documents of which Crown Law acquires copies will be discoverable.
[33] In practical terms, Mr Ellis indicated that his instructions from Mr Siemer may not afford him complete access to all documents, and he therefore is likely to call for copies from Crown Law. No difference between the parties was identified on this aspect of discovery.
[34] However, Mr Ellis had previously raised, and repeated, a request for enquiries to be made by Crown Law as to the existence of search notes or any similar record of a speech, which Mr Ellis is instructed may have been made by the Attorney-General in relation to vexatious litigants, and in which specific reference was made to Mr Siemer. There is no certainty about the existence of any such document.
[35] Mr Perkins resisted any obligation to enquire about such a document, on the basis that it could not be relevant to the issues on the Attorney-General’s application.
[36] Mr Ellis alluded to the prospect that any notes confirming a speech in such terms might be used as a ground for opposing the application on the basis that it was pursued by the Attorney-General for an improper purpose. The potential line of reasoning is tenuous, but cannot be dismissed out of hand. A document such as Mr Ellis has described might adversely affect the Attorney-General’s case in terms of the standard discovery obligation in r 8.7(b) of the High Court Rules.
[37] After discussion on the point, Mr Perkins asked that no formal orders be made. He pointed out that the Attorney-General’s motive has not been put in issue thus far, and nor has there been any formal application for particular discovery of such a document. The vagueness of the description thus far conveyed by Mr Ellis would arguably not be sufficient to warrant any order in any event.
[38] I accept that no order is required at this time. I do urge counsel to confer informally to resolve the point, but I will hear them further on the point if necessary.
Bifurcation of substantive hearing?
[39] On behalf of Mr Siemer, Mr Edgeler argued that the substantive proceedings ought to be bifurcated, with an initial determination as to whether Mr Siemer had
persistently, and without any reasonable ground, instituted vexatious legal proceedings. At that stage, the Court would reserve for subsequent argument, if a finding to that effect was made, whether the Attorney-General was entitled to an order constraining Mr Siemer from further litigious initiatives.
[40] Mr Edgeler’s argument depended upon his syntactical analysis of the wording
of s 88B(1), which provides:
88B Restriction on institution of vexatious actions
(1) If, on an application made by the Attorney-General under this section, the High Court is satisfied that any person has persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior Court, and whether against the same person or against different persons, the Court may, after hearing that person or giving him an opportunity of being heard, order that no civil proceeding or no civil proceeding against any particular person or persons shall without the leave of the High Court or a Judge thereof be instituted by him in any Court and that any civil proceeding instituted by him in any Court before the making of the order shall not be continued by him without such leave. (emphasis added)
[41] Mr Edgeler acknowledged that he could find no precedent for splitting these two components of a proceeding seeking to invoke s 88B. He suggested that might be because in the majority of cases, it appeared that litigants accused of persistent institution of vexatious proceedings had acted for themselves, and may simply not have analysed the point. He suggested there might be efficiencies in bifurcating the issues in this way so that the parties did not need to argue about the appropriateness of constraints and what particular scope was required until the “liability phase” was determined in favour of the applicant. He also argued that the terms on which a finding of institution of vexatious proceedings was made could affect the scope of constraints, and therefore arguments for a litigant who was to be constrained would vary, depending on the terms of the “liability phase” finding.
[42] Mr Perkins disputed that there was any prospect for interpreting the section to require such a bifurcation. He submitted that the reference to hearing the person against whom an order is to be made is effectively surplusage because it is untenable to contemplate that any aspect of proceedings under s 88B could be conducted other than on terms affording the person adversely affected a full opportunity to appear
and defend his or her conduct. Mr Perkins disputed that there was any prospect of efficiency of disposition if matters were split, and relied on the settled precedent of how such proceedings have been determined in other cases.
[43] Essentially for the reasons Mr Perkins raised, I am satisfied that there is no requirement to be read into the terms of s 88B(1) for a bifurcation as Mr Edgeler submitted. As is the norm for a significant majority of civil proceedings, the parties ought to prepare for, and present argument on, what are effectively the “liability” and “relief” phases of the issues, at a single hearing.
Allocation of fixture
[44] I will request that the Registry allocate a fixture for up to five days in November or December 2013, before a Full Court, for hearing the substantive proceedings. I will convene a conference in relation to progress with the proceedings in early October.
[45] In the meantime, leave is reserved to both parties to apply further, should additional issues arise.
Dobson J
Solicitors:
Crown Law, Wellington for applicant
Marshall Bird & Curtis, Auckland for respondent
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