Attorney-General v Siemer - [2013] NZHC 1664

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 respondent

Judgment:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General v Siemer

Details

AGLC: Attorney-General v Siemer [2013] NZHC 1664
Case: [2013] NZHC 1664
Decision Date: 3 July 2013

CaseChat Overview and Summary

In the case of Attorney-General v Siemer, the Attorney-General sought to invoke section 88B of the Judicature Act 1908 to restrict Mr Siemer from initiating further legal proceedings without the leave of the Court, as well as to prevent him from continuing existing proceedings without such leave. The proceedings involved 20 instances between 2003 and 2012 where Mr Siemer was alleged to have instituted vexatious litigation. Mr Siemer admitted the existence of the proceedings but denied they were vexatious. The High Court, presided over by Dobson J, examined several legal issues including the recusal of the judge, the scope of evidence in support of the Attorney-General’s claim, and the application of section 88B.

Regarding the judge's recusal, Mr Siemer attempted to argue that the judge should recuse himself due to a pending case where he was named as a defendant. However, the judge found no grounds for recusal, stating that the pending case did not constitute a sufficient reason to disqualify himself from the current proceedings. The judge also dismissed the argument about the scope of evidence, ruling that the Attorney-General was entitled to decide the evidence to be presented. The judge further declined to pre-determine the legal approach to be applied in the substantive hearing, emphasizing that the issue should be addressed in the context of the evidence presented.

The judge also addressed the discovery process, urging the parties to cooperate in determining which documents should be disclosed. While the judge did not make a formal order regarding the discovery of potential speech notes, he encouraged the parties to resolve the issue informally. Lastly, the judge rejected the suggestion to bifurcate the substantive hearing into a "liability" phase and a "relief" phase, determining that the standard approach of addressing all issues at a single hearing was appropriate. The case was scheduled for a five-day hearing before a Full Court in November or December 2013.

Orders