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 Judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed.

[9]Rule 11.10 of the High Court Rules provides:

(1)A judgment or order may be corrected by the court or the Registrar who made it, if it —

(a)    contains a clerical mistake or error arising from an accidental slip or omission, whether or not made by the officer of the court; or

(b)    is drawn up so that it does not express what was decided or intended.

(2)The correction may be made by the court or the Registrar, as the case may be, —

(a)    on its or his or her own initiative; or

(b)    on an interlocutory application.

Discussion

[10]              The principles governing recall of a judgment are well settled and are set out in Horowhenua County v Nash (No 2), where Wild CJ said:3

Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled – first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court's attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.

3      Horowhenua County v Nash (No 2) [1968] NZLR 632 at 633.

[11]              That statement has been applied by the Supreme Court in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2).4

The error

[12]              The error in my judgment was that  in  the  last paragraph  I stated  that  if  Mr 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.

[13]              The error was an accidental transposition of numbers. That is a clerical error of the kind envisaged by r 11.10. It does not fall within any of the categories discussed in Horowhenua County. It provides no basis for recall.

[14]              I am reissuing the judgment in accordance with r 11.10 with the correct reference.

The alteration

[15]              The alteration was that I 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.

[16]              It was not a material change, notwithstanding the distinction Mr Siemer appears to wish to draw between a judge acting judicially and a judge acting administratively. There was no doubt that Downs J was acting in his capacity as a judge. As I stated in my decision:

[25] … when he declined Mr Siemer’s application to access Mr Rafiq’s application for leave to commence proceedings, Downs J was exercising the High Court’s inherent power to control its own proceedings and his statutory powers as a Judge under the Access to Court Documents Rules.

4      Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2].

[17]              In addition, I made it clear to Mr Siemer that the document I handed him was a draft – as was evident from the “DRAFT” watermark – and that I would be finalising the judgment later that day. It should have been apparent, therefore, that I was not issuing my judgment when I handed Mr Siemer the draft decision.

[18]              There is no reason, therefore, to recall the decision. The change made to the draft decision raises none of the categories discussed in Horowhenua County.

[19]For these reasons, Mr Siemer’s application for recall is denied.

Request for transcript

[20]              At the start of the hearing on 1 October 2020, Mr Siemer asked to be provided with a copy of the transcript of the hearing.

[21]              I did not deal with the request at the time because I told Mr Siemer that I would not be proceeding with the hearing.

[22]              I see no purpose in requiring that a transcript be produced because, for the reasons explained at the time and in my judgment, I did not proceed with the hearing.

G J van Bohemen J