Siemer
[2014] NZHC 2712
•31 October 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-2520 [2014] NZHC 2712
UNDER Section 88B of the Judicature Amendment
Act 1908
IN THE MATTER of an application to commence judicial review proceedings against the Judicial Conduct Commissioner and The Honourable Justice Ailsa Duffy
VINCENT ROSS SIEMER Applicant
Hearing: On the papers Judgment:
31 October 2014
JUDGMENT OF ELLIS J
This judgment was delivered by me on 31 October 2014 at 5.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Copy to the Applicant
Application for leave to commence judicial review proceedings [2014] NZHC 2712 [31 October 2014]
[1] In the week commencing 29 September 2014 the Registrar referred to me (as Duty Judge) an ex parte application by Mr Siemer for leave to institute proceedings against the Judicial Conduct Commissioner and Her Honour Justice Duffy. By minute dated 3 October I sought further information from Mr Siemer in order to assist me in determining that application.
[2] It appears that Mr Siemer responded promptly to my minute, filing an affidavit on 7 October. For reasons that presently elude me, however, that affidavit was only referred to me by the Registry yesterday, after I had instructed a further inquiry to be made of Mr Siemer as to whether he intended to pursue the matter.
[3] Be all that as it may, however, this judgment now addresses the ex parte application.
Why leave is required
[4] On 30 April 2014, Ronald Young and Brown JJ issued a judgment declaring Mr Siemer a vexatious litigant under s 88B of the Judicature Act 1908.1 In the course of so doing the Court found that 15 specific proceedings that had historically been instituted by Mr Siemer were vexatious.
[5] Section 88B(1) of the Judicature Act 1908 provides:
88B Restriction on institution of vexatious actions
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.
1 Attorney-General v Siemer [2014] NZHC 859.
[6] At the conclusion of their judgment, Ronald Young and Brown JJ made the following orders:2
(a) Mr Siemer is not to institute any civil proceedings against any person in the High Court and in any inferior Court without leave of the High Court where the other party is:
(i) Mr Michael Stiassny;
(ii) Ferrier Hodgson - Accountants;
(iii) any Associate Judge or any Judge of the District Court, High
Court, Court of Appeal or Supreme Court;
(iv) the Attorney-General; (v) the Solicitor-General;
(vi) the New Zealand Law Society;
(vii) the Judicial Conduct Commissioner;
(viii) any barrister and/or solicitor of the High Court of New
Zealand;
(b) Mr Siemer is not to institute any proceeding which relates directly or indirectly to his dispute with Mr Stiassny, Ferrier Hodgson, Mr Robert Fardell and Paragon Oil Systems;
(c) all proceedings currently before the High Court and any inferior Court involving any of the above parties in (a)(i)-(viii) or involving the dispute identified in (b) (whether directly or indirectly) will not be continued by Mr Siemer without leave of the High Court.
…
[7] The reasons for the Court making these orders were as follows:
[199] In one way or another all of the proceedings issued by Mr Siemer and the subject of this application arose from his original dispute with Mr Stiassny and Ferrier Hodgson following from the liquidation of Paragon.
…
[201] Mr Siemer has sued a remarkably wide range of persons arising from the initial litigation with respect to Paragon. As we have noted, in addition to the above three parties, the litigation involves lawyers who acted for him and opposing parties (including the Solicitor-General), the Law Society and the
2At [204]. Although the order at (b) on its face appears to prohibit the instituting of the proceedings described in it entirely, it needs to be read as stating “without leave of the High Court”.
Judicial Complaints Commissioner as recipients of complaints from Mr Siemer and the Attorney-General as representative of other parties. Consequently any orders which properly related directly to the subject matter of this litigation would need to include these persons.
[202] We have considered whether, given the wide range of such persons and given Mr Siemer's capacity to identify new parties to this alleged injustice arising from his core dispute, it would be more appropriate to impose a general ban pursuant to s 88B. We have decided not to do so. We accept the principle that any restriction of the right to bring proceedings (even if only by a leave application) should be as narrow as possible, consistent with the intent of s 88B to protect defendants from persistent vexatious proceedings.
[203] To that end the fact that Mr Siemer's litigation all has a single underlying point convinces us that the appropriate outcome is to restrict the bringing of proceedings arising from this dispute (directly or indirectly) without leave.
Discretion to grant leave
[8] The Court's discretion to grant a vexatious litigant leave to file proceedings is set out in s 88B(2) and (3) of the Judicature Act:
88B Restriction on institution of vexatious actions
…
(2) Leave may be granted subject to such conditions (if any) as the Court or Judge thinks fit and shall not be granted unless the Court or Judge is satisfied that the proceeding is not an abuse of the process of the Court and that there is prima facie ground for the proceeding.
(3) No appeal shall lie from an order granting or refusing such leave.
[9] As recently noted by Thomas J in Siemer v Stiassny the following principles emerge from the decided cases in relation to the grant of leave:3
(a) While the application should generally be dealt with on a without notice basis, the Court has inherent jurisdiction to direct service on the Attorney-General and the proposed defendant. However, neither the Attorney nor the intended defendant should lightly be troubled by the
application.
3 Siemer v Stiassny [2014] NZHC 1272. See Re Collier [2008] 2 NZLR 505 (HC); Re Collier
[2004] NZAR 472 (HC); Black White and Grey Cabs Ltd v Hill HC Wellington CP 1013/91, 10
December 1993.
(b)The discretion to grant leave is to be exercised very carefully because, the applicant is necessarily assumed to be a vexatious litigant.
(c) “Prima facie ground” means a serious, as opposed to a speculative, case - one sufficiently strong to require an answer from the opposing party.
The present application
[10] The identity of both the respondents named in Mr Siemer’s proposed claim means that, indisputably, leave is required to file the proceedings. The proposed claim itself is sparsely, but clearly, drafted and so I merely set out its substantive parts in full:
By letter dated 13 December 2013 (the complaint), the plaintiff lodged a complaint with the first defendant alleging the second defendant committed judicial misconduct in covering up counsel misfeasance, then issued a “reserved decision” which did not provide reasons.
Under s 14(1) of the Judicial Conduct Commissioner and Judicial Panel Act
2004 (the Act), the first defendant was legally required to send a written acknowledgment to the plaintiff AND a written notification of the complaint
to the second defendant.
The first defendant sent an acknowledgment to the plaintiff as required by the Act.
The first defendant failed his obligation under the Act to notify the second defendant.
The complaint related to proceedings which were at an end. There were no provisions in law which might exempt the first defendant from his statutory obligation to notify the second defendant concerning the complaint and none were claimed by him.
By letter dated 4 September 2014, almost nine months after the complaint was lodged with the first defendant, the first defendant dismissed the complaint (the dismissal) without ever notifying the second defendant of its existence.
In a minute dated 15 September 2014, the second defendant expressed consternation at not being notified of the complaint in accordance with the first defendant’s statutory obligations, and copied the first defendant in on this minute notwithstanding the first defendant not being a party in the proceeding to which this minute related.
Had the second defendant been properly notified of the complaint, she may have provided information which warranted a different outcome than the dismissal.
[11] The proposed claim then sets out the specific grounds for review, as follows:
The first defendant failed to follow statutory procedures which bind him under the Act.
Under s 14(1)(b) of the Act, the first defendant had an explicit statutory obligation to notify the second defendant of the complaint and he failed this explicit statutory obligation.
The second defendant will confirm in evidence, if required to do so, her minute of 15 September 2014 which asserts the first defendant failed to notify her of the complaint over almost nine months – and not until the dismissal was sent her.
[12] And the relief sought is:
A declaration the first defendant breached his statutory obligation under s 14(1)(b) of the Act.
An order by the Court quashing the dismissal on grounds it was the result of a procedurally improper approach.
Such other relief as the Court deems fit.
Further information/particulars requested
[13] My minute dated 3 October relevantly stated:
[2] It seems to me that in order fairly to determine the application more information is required. I therefore direct that Mr Siemer is to file a brief affidavit in which he:
(a) outlines the background to the complaint made by him to the proposed first respondent about the proposed second respondent; and
(b) annexes copies of the complaint, the response, and Duffy J's minute dated 15 September 2014 (and any other documents he considers relevant).
[3] Mr Siemer may, if he wishes, also file a brief memorandum of submissions addressing any matter he considers relevant to the question of leave. I should then be in a position to determine the matter on the papers.
[14] Contrary to my request, the affidavit filed by Mr Siemer in response did not annex copies of his complaint, the response or Duffy J’s minute. Rather, he stated:
This matter is a judicial review which pleads the Judicial Conduct Commissioner’s approach to a December 2013 complaint by me was procedurally improper, in that, he failed to follow the statutory provision of section 14(1)(b) of the governing Act which required him to provide the second defendant, without delay, a copy of the complaint.
By minute dated 15 September 2014 in CIV 2013 404 3869, the second defendant asserted that she had not been contacted until 9 months later, and then only as a result of the first defendant’s dismissal of my complaint.
It is my informed and considered view that section 14(1)(b) is unequivocal in its requirement governing the first defendant’s procedure and the Minute of the second defendant is equally unequivocal in demonstrating this procedure was not followed.
I am not certain as to the reasons(s) why the first defendant breached his statutory procedure but I am clear his reasons did not fall under the sole exemption provided by 14(6) because the court proceedings were already at an end. Relevantly, the Minute of the second defendant indicates no lawful reason was provided her for this procedural impropriety by the first defendant.
Without discovery yet in this matter, I am not in a position to add anything further at this stage. I would like, however, to stress the sole question is whether a prima facie case of a procedural breach of the Act has been made out and not to speculate as to what, if any, effect this procedural breach might have had on the first defendant’s finding.
[15] Given Mr Siemer’s failure to comply with my request for a copy of Duffy J’s
Minute, a copy has since been provided to me from the Court file in CIV-2013-404-
3869. It provides vital context for an assessment of whether leave to file the proposed judicial review proceedings should be granted.
[16] As it transpires, although Mr Siemer’s limited summary of the Minute is accurate as far as it goes, the parts to which he has not referred provide critical particulars that are lacking from his claim as pleaded. For ease of reference, I set the minute out in full:
[1] On 9 December 2013, there were two applications before me in this proceeding. One was an application by Mr Siemer to have the defendant’s solicitors, Lee Salmon Long, removed and restrained from continuing to act for the defendant. The application was opposed. The second was an application by the defendant to strike out Mr Siemer’s statement of claim. Mr Siemer opposed that application.
[2] Although Mr Siemer was bringing one application and opposing another, he did not appear at the hearing. The decisions I made on the applications are recorded in two judgments, each of which was delivered on
11 December 2013: (see Siemer v Official Assignee [2013] NZHC 3315 and
Siemer v Official Assignee [2013] NZHC 3316). The judgment in which I struck out Mr Siemer’s statement of claim in the proceeding was a result judgment. At [2] of that judgment, I stated that I proposed to issue a result judgment with full reasons to follow.
[3] Two days later, on 13 December 2013, Mr Siemer made a formal complaint to the Judicial Conduct Commissioner regarding me issuing a decision without providing reasons. I was unaware of Mr Siemer’s complaint until 4 September 2014 when the Judicial Conduct Commissioner wrote to me advising that he had reached a decision “on the basis of the materials available to me” without first requiring a specific response from me. Accordingly, he had decided not to refer the complaint to me. The first time that I read Mr Siemer’s complaint was when I received a copy enclosed with the Commissioner’s letter of 4 September 2014.
[4] Mr Siemer’s complaint reveals that he wanted reasons for my decision to strike out his statement of claim. My decision of 11 December 2013 had stated that reasons would be provided. On 28 February 2014, I provided a reasons judgment (see Siemer v Official Assignee [2014] NZHC 322) for the striking out of Mr Siemer’s statement of claim. The material that accompanied the Judicial Conduct Commissioner’s letter of 4 September
2014 neither included, nor mentioned the reasons judgment that I delivered on 28 February 2014.
[5] I find it surprising that the reasons judgment of 28 February 2014 was not drawn to the attention of the Judicial Conduct Commissioner. Had I been aware of the complaint earlier than now, I would have drawn the reasons judgment to his attention. I am concerned that Mr Siemer’s omission to update the Commissioner once the reasons judgment was delivered on 28 February 2014 may be because he did not receive a copy of the judgment. For the avoidance of doubt, I am issuing this Minute, which has attached to it a copy of the reasons judgment.
[6] I am also having enquiries made at the High Court Registry to see whether there has been an oversight such that Mr Siemer did not receive a copy of the reasons judgment following its delivery earlier this year.
[7] If there has been an oversight on the part of the Registry and the reasons judgment of 28 February 2014 was not provided to Mr Siemer when it should have been, I apologise to him for that oversight. I agree with him that it is most important that Judges do provide reasons for their decisions.
Discussion
[17] As s 88B(2) makes clear in order to grant leave to Mr Siemer to file the proceeding I need to be satisfied that:
(a) there are prima facie grounds for the claim; and
(b) the proceeding is not an abuse of the process of the Court.
[18] Accordingly Mr Siemer is not correct when he says that the only issue in the present case is whether a prima facie case of a procedural breach has been made out.
[19] As far as that (prima facie grounds) threshold is concerned, however, I note that in Re Collier Fogarty J said:4
… I interpret the prima facie test in the traditional way of the Court being satisfied, without hearing the other side, that the plaintiff has a good reason to start or continue a proceeding.
[20] To the extent that that approach would require the Court to consider the applicant’s purpose in or reason for bringing the proceeding, it would be problematic for Mr Siemer here for the reasons given later in this judgment. If, on the other hand, it simply means that the Court must be satisfied that the legal and factual issues raised by the proceeding appear, in all the relevant circumstances, to be capable of serious argument, then based on the material before me, that prerequisite is probably met. That is because s 14(1) of the Judicial Conduct Commissioner and Judicial Panel Act 2004 provides that:
14Commissioner must acknowledge complaint and deal with it promptly
(1) Without delay after receiving a complaint, the Commissioner must—
(a) send a written acknowledgement to the complainant (if any);
and
(b) send to the Judge who is the subject of the complaint a written notification of the complaint.
[21] There are exceptions to the subsection (1) obligation contained in subsections (6) and (7), but I also agree with Mr Siemer that they appear to have no application here.
[22] While there may well be good arguments to be made that compliance with s 14(1)(b) is not mandatory in all cases (an issue about which I do not intend to comment) there can be no real doubt that there has not been compliance with the section on its face and, accordingly, in that sense Mr Siemer might have a “prima
facie case”.
4 Re Collier [2004] NZAR 472 (HC).
[23] As far as the “ not an abuse of process” pre-condition is concerned I accept that Mr Siemer has not previously sought to litigate the specific issues raised by the proposed claim, namely this particular complaint about the Commissioner’s apparent non-compliance with s 14(1)(b).5
[24] That said, however, the 3869 claim, which forms the background to the complaint, is clearly related to Mr Siemer’s “original dispute with Mr Stiassny and Ferrier Hodgson following from the liquidation of Paragon”.6 And it is the litigation arising from that original dispute that was the focus of the orders made by Ronald Young and Brown JJ. As their Honours noted at [201] of their judgment, the reason for including the Commissioner and Judges of this Court in the list of persons against whom Mr Siemer could not institute proceedings without leave was his past practice of joining them as parties to that litigation.
[25] Accordingly it seems to me that the connection between this proposed claim and the original Paragon litigation underscores the point at [9](b) above; the starting point is a presumption that Mr Siemer is instituting these proceedings vexatiously. And, in turn, proceedings instituted vexatiously are necessarily an abuse of the Court’s processes.
[26] I consider that the Court is also entitled, in considering whether the proceedings are an abuse of process, to take into account the apparent purpose of the proposed claim. That approach appears to me to be consistent with the approach to “vexatiousness” endorsed in Brogden v Attorney-General when the Court of Appeal
said:7
What is required is an appropriate assessment of the whole course of the respondent’s conduct of the litigation in question, including the manner in which an apparent purpose for which each proceeding has been conducted, including resort to the appeal process where that has been done without any realistic prospect of success. We note the adoption by the High Court in this case of the observation made in Attorney-General v Hill that the concern is not with whether the proceeding was instituted vexatiously but whether it is properly described as a vexatious proceeding. Of course, if the litigant is
5 The present application for leave can be compared, in this respect, with the application determined by Thomas J.
6 Attorney-General v Siemer, above n 1, at [199].
7 Brogden v Attorney-General [2001] NZAR 809 (CA) at [22] (citations omitted and emphasis added). It seems to me that a vexatious proceeding will also necessarily be an abuse of process.
found to have had an improper purpose in commencing proceedings, a finding that the litigation was vexatious is more likely. The test is, however, whether, overall, the various proceedings have been conducted by the litigant in a manner which properly attracts that epithet.
[27] On that basis, the background to the claim (which is made clear in Duffy J’s minute and her related judgments) becomes highly relevant. It appears to me to be telling in that respect that, notwithstanding my specific request, Mr Siemer chose not to disclose that uncontroversial, indisputable and relevant information.8 His submission that the Court should not (at this leave stage) speculate about the effect that the alleged breach of s 14(1)(b) would have on the Judicial Conduct
Commissioner’s finding is equally telling.
[28] In my view, in determining whether the proposed claim is an abuse of process the Court is entitled to interrogate the pleading on the basis of the background contained in Duffy J’s minute. Indeed, it would be counter-intuitive for it not to do so.
[29] Duffy J’s minute makes clear that Mr Siemer’s 13 December 2013 complaint about her related to her alleged failure to give reasons in relation to a “results judgment” that she had issued two days earlier, on 11 December 2013.9 In that judgment she said:
[1] This is an application by the Official Assignee to strike out Mr Siemer’s claim. Although Mr Siemer opposes the application, he is not present to advance argument in opposition to the application. I have decided that the claim should be struck out.
[2] Because Mr Siemer is not here, and because he is representing himself, I intend to give full reasons as to why I am striking out this claim. I propose now to issue a result judgment recording that the claim is struck out for want of proper form, both in relation to the named defendant and the elements of the tort alleged. Full reasons will follow.
(emphasis added)
[30] It is also a matter of public record that in February 2014, Duffy J then issued a separate decision in which she did exactly what she had promised to do, namely
8 Copies of Duffy J’s minute and his complaint to the Judicial Conduct Commissioner must, by
definition, be in his possession.
9 Siemer v Official Assignee [2013] NZHC 3315.
setting out her reasons for the “results” earlier advised.10 The giving of separate results and reasons judgments in this way is a matter of longstanding practice that is (for example) expressly recognised in r 11.4(1) of the High Court Rules.
[31] Had Duffy J been notified of Mr Siemer’s complaint in December 2013, any response or comment by her (in itself probably unlikely in the circumstances) would inevitably have merely involved drawing to the Commissioner’s attention the fact that her reasons would, as advised to Mr Siemer by way of the results judgment, be issued in due course. Once those reasons had been given there could be no possible basis for upholding Mr Siemer’s complaint.
[32] When the above, entirely ordinary, circumstances are understood it seems inconceivable that the Commissioner might have reached a different result had Duffy J been advised of the complaint at the time that it was made. I have little doubt that Mr Siemer is well aware of that. His pleading that “Had the second defendant been properly notified of the complaint, she may have provided information which warranted a different outcome than the dismissal” is therefore disingenuous, at best.
[33] I necessarily accept that there is a wider public interest in the High Court exercising its supervisory function to ensure that those holding public office comply with the law that governs the exercise of their functions. But even taking the approach most favourable to Mr Siemer, the breach alleged here is truly de minimis in the particular circumstances of this case. Moreover the fact that the Commissioner did not comply with s 14(1)(b) has already been brought to his attention by Duffy J (when she copied her minute to him).
[34] As well, the point of s 14(1)(b) is plainly to afford natural justice rights to the judicial officer who is the subject of a complaint made under the Act. Clearly, for example, if a complaint was upheld without such prior notification, then failure to comply with the section could be a serious matter. It is difficult to see how a breach
of that requirement could ever have a prejudicial effect on the complainant.
10 The relevant public record is her reasons judgment dated 28 February 2014: Siemer v Official
Assignee [2014] NZHC 322.
[35] Even if I am wrong in that, there is certainly nothing that Mr Siemer personally could hope to gain by pursuing the present proceeding. There is no other reasonable conclusion that the Commissioner could have reached. The proposed application for review can serve no substantive purpose; there is nothing that could be achieved by them other than a waste of the Court’s time and resources. It is therefore impossible not to conclude that Mr Siemer’s only object in bringing the proceeding is to harry the Judicial Conduct Commissioner simply for the sake of doing so.
[36] I consider that the proposed proceeding would be an abuse of the Court’s
processes, for the reasons I have given. Leave to file it is declined accordingly.
Rebecca Ellis J
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