Siemer and Siemer v Stiassny

[2009] NZCA 571

IN THE COURT OF APPEAL OF NEW ZEALAND

CA454/2009
[2009] NZCA 571

BETWEENVINCENT ROSS SIEMER

First Appellant

ANDJAN DINSDALE SIEMER

Second Appellant

ANDMICHAEL PETER STIASSNY

First Respondent

ANDFERRIER HODGSON AND CO LTD

Second Respondent

ANDTHE ATTORNEY-GENERAL OF NEW ZEALAND

Third Respondent

ANDDAVID COLLINS

Fourth Respondent

ANDJUDICIAL CONDUCT COMMISSIONER

Fifth Respondent

ANDCHIEF JUSTICE OF NEW ZEALAND

Sixth Respondent

Hearing:1 December 2009

Court:O'Regan, Robertson and Baragwanath JJ

Counsel:Appellant in person

R E Harrison QC as Amicus
G R Nicholson and C R Prew for Judicial Conduct Commissioner
A M Powell for Third Respondent

Judgment:7 December 2009 at 3.30 p.m.

JUDGMENT OF THE COURT

A            An extension of time for appealing is granted until now.

B            Timetabling of the progress of the appeal will operate from today.

C            We make no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]        Mr Siemer filed an appeal against directions contained in a Minute issued by Priestley J on 16 October 2008: HC AK CIV 2008-404-6822 16 October 2008.  He states in his notice of appeal that he also appeals against subsequent case­management Minutes issued by Associate Judge Doogue on 28 October 2008, and 26 and 27 November 2008.

[2]        The appeal was filed on 16 January 2009.  Taken from the date of Priestley J’s Minute, that is outside the 20 working days allowed under the Court of Appeal (Civil) Rules 2005, r 29. Mr Siemer therefore requires an extension of time for appealing.

Background

Harrison J’s strike out

[3]        In January 2008, Mr Siemer filed a statement of claim naming as defendants Mr Michael Stiassny, Ferrier Hodgson & Co Ltd, and the Crown.  That statement of claim pleaded three causes of action: conspiracy to defeat the course of justice, systematic deprivation of Mr Siemer’s rights under the New Zealand Bill of Rights Act 1990 and the Common Law, and conspiracy between Mr Stiassny and Ferrier Hodgson to bring a false claim against Mr Siemer.  The defendants applied to strike out the statement of claim.

[4]        On 18 March 2008, just before the applications to strike out were to be heard, Mr Siemer filed a second statement of claim, to which he added three additional defendants: the Solicitor-General personally, the Judicial Conduct Commissioner and the Chief Justice.  Mr Siemer also added two additional causes of action: misfeasance in public office and malicious prosecution.  The new causes of action related only to the new defendants.

[5]        Harrison J struck out the proceeding: HC AK CIV 2008-404-0104 20 March 2008.  He held:

[7]         … The documents seek to raise again for argument issues which are already the subject of judicial determination.  They seek the collateral advantage of re-litigating complaints under the new guises of allegations of conspiracy, breach of the New Zealand Bill of Rights Act etc.  To that extent they stem from an improper motive and are in themselves an abuse of process.

[8]         The documents are also scandalous. On their face, the allegations or so-called particulars, are irrelevant to any recognised or arguable cause of action . …

[9]         … The defects in the pleadings are so fundamental that they could never be remedied by amendment. …

[10]       … the proceeding must be struck out.  The pleading is designed to embarrass, and to raise complaints which amount to an abuse of process.  And the contents of the documents are themselves scandalous, irrelevant and unintelligible.  I should add my satisfaction that none of the so-called causes of action are arguable in law and the Crown, whether the Attorney-General, the Solicitor-General, Chief Justice or the Judicial Conduct Commissioner are immune from suit.

Priestley J’s directions

[6]        Some months later, in October 2008, Mr Siemer filed another statement of claim in the High Court at Auckland.  It named the same six defendants, and advanced essentially the same five causes of action, as had been contained in the second statement of claim that had been before Harrison J.  It contained some new allegations, chiefly in respect of Chisholm and Gendall JJ’s hearing and judgment in respect of the Solicitor-General’s application for Mr Siemer’s imprisonment because of his contempt of court.  (Chisholm and Gendall JJ had heard the Solicitor-General’s application on 16 and 17 June 2008, and delivered their judgment granting it on 8 July 2008: HC AK CIV 2008-404-472 8 July 2008).

[7]        In his Minute of 16 October 2008, Priestley J ordered that none but one of the named defendants, the Solicitor-General, was to be served with the statement of claim, and directed that there be a case-management conference to focus on whether the statement of claim required amendment and how to progress the proceeding.

[8]        Priestley J said:

[4]         The bulk of the statement of claim, so far as I can gather, relates to a repetition of allegations and grievances which have already been the subject of concluded legal proceedings and appeals.  Some of the allegations, however, could arguably constitute fresh causes of action.

[5]         My over-riding impression is that the allegations contained in the statement of claim are the product of querulousness and a refusal to accept decisions of New Zealand courts.

[9]        A case-management conference was held on 26 November 2008 with Mr Siemer and counsel for the Solicitor-General present.  Associate Judge Doogue recorded that:

[1]         Mr Siemer raised for discussion the determination made by Priestley J. … I have again attempted to explain why, in my view, it is not open to me to set aside Priestley J’s decision or even to commence an enquiry into whether it is right or, as Mr Siemer submits wrong.  If Mr Siemer wishes to challenge the decision of Priestley J, he will have to make a properly formulated application to the Court of appropriate jurisdiction.

[10]       In another Minute of 27 November 2008, Associate Judge Doogue recorded that, in contravention of Priestley J’s directions, the fifth named defendant, the Judicial Conduct Commissioner, had been served with Mr Siemer’s statement of claim.  The Associate Judge directed that no further steps were to be taken against the fifth defendant until further order of the Court.

Winkelmann J’s strike out

[11]       Subsequent to Priestley J’s Minute, the Solicitor-General applied to strike out Mr Siemer’s statement of claim.  Winkelmann J heard the application on 2 June 2009, and delivered her judgment the day before the hearing of this appeal:  HC AK CIV-404-6822 30 November 2009.  The Judge recorded that:

[1]         … The application to strike out is brought on the basis that the pleadings in their entirety are likely to cause prejudice, embarrassment and are otherwise an abuse of the Court’s processes.  Further, that they disclose no reasonable cause of action against the fourth defendant.  …

[12]       Winkelmann J noted the principles relating to strike out summarised in Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) and Couch v Attorney-General [2008] 3 NZLR 725 (SC). She noted that proceedings may be an abuse of process if they are frivolous, vexatious, attempt to re-litigate proceedings already determined or are a duplication of other proceedings: Hunter v Chief Constable of the West Midlands Police [1982] AC 529.

[13]       The Judge concluded the proceeding brought by Mr Siemer amounted to an attempt to re-litigate earlier proceedings, constituted a collateral attack on outcomes and processes of earlier proceedings, and was fundamentally hopeless because judicial officers are immune from civil liability for things said or done in a judicial capacity:  Gazley v Lord Cooke of Thorndon [1999] 2 NZLR 668 (CA).

[14]       She noted that the malicious prosecution cause of action could not succeed because the proceedings brought by the Solicitor-General against Mr Siemer had been determined by this Court in Siemer v Solicitor-General [2009] 2 NZLR 556 to be civil, not criminal, in nature (at [20]). In respect of the misfeasance cause of action, the Judge considered it had “no prospect of success” and that the allegations had “no foundation”. In respect of Mr Siemer’s allegation that the Solicitor-General had misled Parliament, Winkelmann J observed that that was a matter for Parliament, not the courts (at [22]).

The appeal

Extension of time for appealing

[15]       Mr Powell accepted that Mr Siemer’s delay in appealing the Minute of Priestley J had caused the respondents no prejudice, but he opposed the grant of an extension essentially on the basis that Priestley J’s Minute was procedural, rather than substantive, and did not meet the test for an appeal against an interlocutory order discussed in Association of Dispensing Opticians of New Zealand Inc v Opticians Board [2000] 1 NZLR 158 (CA). He submitted that Priestley J’s ruling did not have the effect of determining Mr Siemer’s rights or obligations, or the shape of the substantive proceedings, but rather had the effect only of altering the usual order of proceedings.

[16]       This Court does have jurisdiction to hear the appeal against Priestley J’s Minute.  Its effect was to determine Mr Siemer’s right to serve particular parties with proceedings and had a fundamental effect on the progress of the case.  It was appealable and Mr Siemer should be granted an extension of time for appealing.

[17]       Mr Siemer told us that, although he had received the 30 November judgment, he had not yet read it.  If the judgment stands, there is no utility in pursuing the present challenge to an issue which is preparatory to a hearing in respect of an action which has been terminated by strike-out.

[18]       If there is an appeal against Winkelmann J’s judgment, the two matters should be heard together.  If there is no appeal from the recent judgment, then before the Court embarks on hearing this appeal, consideration must be given as to whether the issues are now moot.

Result

[19]       An extension of time for appealing is granted until now.

[20]       Timetabling of the progress of the appeal will operate from today.

[21]       We make no order as to costs.

Solicitors:

Crown Law Office, Wellington