Siemer - [2014] NZHC 2712

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…

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 Siemer

Details

AGLC: Siemer [2014] NZHC 2712
Case: [2014] NZHC 2712
Decision Date: 31 October 2014

CaseChat Overview and Summary

Vincent Ross Siemer sought leave to commence judicial review proceedings against the Judicial Conduct Commissioner and The Honourable Justice Ailsa Duffy. The background to the application is that Mr Siemer had previously been found to be a vexatious litigant and was subject to a number of orders restricting his ability to commence proceedings without leave of the Court. The proposed proceedings related to a complaint that Mr Siemer had made to the Judicial Conduct Commissioner, alleging that Justice Duffy had committed judicial misconduct by issuing a “reserved decision” without reasons. Mr Siemer further alleged that the Judicial Conduct Commissioner had failed to notify Justice Duffy of the complaint, contrary to a statutory obligation.

The Court was required to decide whether leave should be granted to Mr Siemer to bring the proposed judicial review proceedings. The Court considered that there were prima facie grounds for the claim, as the statutory obligation to notify the subject of a complaint of the complaint was not complied with. However, the Court also concluded that the proposed proceedings would be an abuse of the Court’s processes, given the background to the complaint and the apparent purpose of bringing the claim. The Court found that the proposed proceedings would serve no substantive purpose and would be an unnecessary waste of the Court’s time and resources.

The Court declined to grant leave for Mr Siemer to bring the proposed judicial review proceedings.

Orders