Siemer v Attorney-General - [2020] NZHC 2756

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-002797

[2020] NZHC 2756

UNDER the Judicial Review Procedure Act 2016

IN THE MATTER OF

an application for Judicial Review

BETWEEN

VINCENT ROSS SIEMER

Applicant

AND

ATTORNEY-GENERAL

Respondent

Hearing: on the papers

Appearances:

Applicant in person

A M Powell and H F Brockway for the Respondent

Judgment:

20 October 2020

JUDGMENT OF VAN BOHEMEN J

[on application for recall]

This judgment was delivered by me on 20 October 2020 at 3.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel: Crown Law, Wellington Copy to:
Applicant

SIEMER v ATTORNEY-GENERAL [on application for recall] [2020] NZHC 2756 [20 October 2020]

Introduction

[1] In a judgment dated 1 October 2020, I struck out an application by Vincent Siemer to review a decision by Downs J denying Mr Siemer access to a document on the Court file in another proceeding.1 I did so because it was evident on the face of the application that I had no jurisdiction to review the decision of Downs J.2

[2] As recorded in my decision, because the hearing of Mr Siemer’s application was set down for that day, I considered it appropriate to advise Mr Siemer in person at the hearing. Because the jurisdictional point was plain, I did not consider it appropriate to hear Mr Siemer on the point.

[3] To ensure that Mr Siemer understood the reasons for my decision, I handed Mr Siemer a draft of my decision. I explained that I would finalise and issue my decision after the hearing.

[4]I did so later that day.

Application for recall

[5] By application dated, 7 October 2020, Mr Siemer asks for the recall of my judgment on the grounds that the judgment as issued was incorrect on one point and was altered in one material respect from the draft I had handed to Mr Siemer.

[6] By memorandum dated 12 October 2020, counsel for the Crown submit that that there is no basis for recalling the judgment. Crown counsel submit that it is established that a judge may alter the reasons for an oral decision if, on later reading, the judge considers the decision requires alteration to record more accurately the reasons for the decision. Crown counsel also say the error was an error of transposition which can be corrected before a judgment is sealed.

[7] By memorandum dated 13 October 2020, Mr Siemer submit that the Crown accept that there is an error in the judgment. He also says:

1 Siemer v Attorney-General [2020] NZHC 2581.
2 At [2] and [16]-[25].

5. The alteration had the effect of changing the reason for preventing natural justice in this proceeding, in that, the judgment given in open court claimed a jurisdictional prohibition of administrative decisions of the High Court, while the final version asserted no such prohibition.

High Court Rules 2016

[8]Rule 11.9 of the High Court Rules 2016 provides:

A…

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.

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Details

Case: [2020] NZHC 2756
Decision Date: 20 October 2020

CaseChat Overview and Summary

Vincent Siemer applied for judicial review of a decision by Downs J to deny him access to a document on the Court file in another proceeding. Siemer's application was struck out, as it was evident on the face of the application that the Court had no jurisdiction to review the decision of Downs J. Siemer subsequently applied for recall of the judgment, claiming that the judgment as issued was incorrect on one point and had been altered in one material respect from the draft decision handed to him. The Crown submitted that there was no basis for recalling the judgment, as a judge may alter the reasons for an oral decision if, on later reading, the judge considers the decision requires alteration to record more accurately the reasons for the decision.

The Court considered the principles governing recall of a judgment, which are well settled and are set out in Horowhenua County v Nash (No 2). The error in the judgment was that the Court had stated that if Siemer wished to challenge Downs J’s decision, he would need to do so by way of appeal in accordance with s 65 of the Senior Courts Act 2016. The reference should have been to s 56 of the Senior Courts Act. The error was an accidental transposition of numbers, which is a clerical error of the kind envisaged by r 11.10 of the High Court Rules 2016. The alteration was that the Court revised one section of the draft judgment after the hearing in order to express more clearly the essential point that it is well-established that a High Court Judge does not have jurisdiction to review the decisions of another High Court Judge. The Court held that the alteration was not a material change and raises none of the categories discussed in Horowhenua County. For these reasons, Siemer’s application for recall is denied.

Orders