Siemer v Attorney-General

[2020] NZHC 2581

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-002797

[2020] NZHC 2581

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:

1 October 2020

Appearances:

Applicant in person

A M Powell and H F Brockway for the Respondent by VMR

Judgment:

1 October 2020

Reissued:

20 October 2020

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 01 October 2020 at 3.30pm and

re-delivered by me on 20 October 2020 at 3.00pm in accordance with High Court Rules 2016, r 11.10

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel: Crown Law, Wellington Copy to:

Applicant

SIEMER v ATTORNEY-GENERAL [2020] NZHC 2581 [1 October 2020]

[1]                 Vincent Siemer applies to review a decision by Downs J denying Mr Siemer access to a document on the Court file in another proceeding.

[2]As set out below, I have no jurisdiction to review the decision of Downs J.

[3]                 Accordingly, I strike out the application in accordance with r 15.1 of the High Court Rules 2016.

[4]                 Because the hearing of Mr Siemer’s application was set down for today, I considered it appropriate to advise Mr Siemer in person at the hearing rather than make my decision on the papers and vacate the hearing. However, because the jurisdictional point is plain, I did not consider it appropriate to hear Mr Siemer on the point.

[5]                 At the hearing, I handed Mr Siemer a draft of this decision, which I have since amended and finalised.

History of application

[6]                 On 7 October 2019, Mr Siemer applied under the Senior Courts (Access to Court Documents) Rules 2017 (Access to Court Documents Rules) for access to an application for leave to commence proceedings brought by Razdan Rafiq. Mr Rafiq had been declared a vexatious litigant by an order made under s 88B of the Judicature Act 1908 that he was not to commence proceedings in any court without leave.

[7]                 Mr Siemer is also subject to such an order, which was made by the Court of Appeal on 4 March 2016.

[8]                 In a minute dated 24 October 2019, Downs J agreed that Mr Siemer was entitled to access the judgment of Venning J declining Mr Rafiq’s application for leave, but otherwise declined Mr Siemer’s application.1

[9]                 Mr Siemer applied for leave to appeal Downs J’s decision. In a judgment dated 18 December 2019, Downs J declined Mr Siemer’s application for leave.2 In his

1      Rafiq v Whata [2019] NZHC 1193.

2      Siemer v Auckland High Court [2019] NZHC 3393.

decision, Downs J recorded his view that Mr Siemer remained a vexatious litigant,3 notwithstanding the contrary conclusion reached by Palmer J in another proceeding.4

[10]             Mr Siemer appealed Downs J’s refusal to grant him leave to appeal. That appeal is currently before the Court of Appeal.

Application for judicial review

[11]             Mr Siemer also applied to review Downs J’s refusal to grant him access to  Mr Rafiq’s application for leave to commence a proceeding. This is the application before me.

[12]             In a minute dated 14 February 2020, Palmer J, who manages the judicial review list, recorded his understanding that Mr Siemer’s application for review proceeded on the basis that administrative decisions of the High Court which are usually exercised by a Registrar are susceptible to judicial review.

[13]             In a minute dated 28 February 2020, Palmer J adjourned Mr Siemer’s application for judicial review until Mr Siemer’s appeal had been determined. Palmer J noted that if the Court of Appeal granted Mr Siemer leave to appeal, the appeal might provide a more comprehensive and authoritative resolution of the issues in the application for judicial review.

[14]             However, in a further minute dated 31 July 2020, Palmer J concluded that he had been wrong to continue the adjournment of Mr Siemer’s application for judicial review after Mr Siemer had amended his notice of appeal to the Court of Appeal to seek only the reversal of Downs J’s decision of 18 December 2019 and a declaration that Mr Siemer was not a vexatious litigant. Palmer J held that the judicial review proceeding should proceed.

[15]             Timetable orders were made on the basis of a consent memorandum from   Mr Siemer and Crown counsel, and the application was set for hearing before me

3 Ibid, at [11].

4      Siemer v New Zealand Law Society [2019] NZHC 3075 at [28].

today, 1 October 2020. Both Mr Siemer, who is self-represented, and Crown counsel, Mr Powell and Mr Brockway, filed written submissions in advance of the hearing.

Jurisdiction to review decision of another High Court Judge

[16]             It is well established that a High Court Judge does not have jurisdiction to review the judicial decisions of another High Court Judge.

[17]             The position is succinctly put by Lord Diplock in Re Racal Communications Ltd:5

Judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only. Mistakes of law made by judges of the High Court acting in their judicial capacity as such can be corrected only by means of appeal to an appellate court; and if, as in the instant case, the statute provides that the judge's decision shall not be appealable, they cannot be corrected at all.

[18]             As Thomas J said in the Court of Appeal’s decision in Auckland District Law Society v Attorney-General:6

The supervisory jurisdiction of the High Court has been secured since the 17th century. It is based on the fundamental premise that statutory (and some prerogative) powers can be validly exercised only within their true limits. It is the task of the High Court to determine those limits and it does so by the process of judicial review. But the High Court cannot review its own decisions; it must determine its own jurisdiction and, if it is responsible for any irregularity, the defect must be corrected by the Court itself or on appeal

… .

[19]As Fisher J observed in Hawkins v Attorney-General:7

… because judicial review is essentially a supervisory jurisdiction, it would be a contradiction in terms for the High Court to judicially review itself.

[20]             That would be so even if Downs J had been exercising a power usually exercised by a Registrar. Downs J declined Mr Siemer’s application while Duty Judge. Rule 5 of the Access to Court Documents Rules confirms that the Rules do not affect

5      Re Racal Communications Ltd [1981] AC 374 (HL) at 384.

6      Auckland District Law Society v Attorney-General [1993] 2 NZLR 129 (CA), (1992) 9 CRNZ 344 (CA) at 348, citing Isaacs v Robertson [1985] AC 97 (PC), per Lord Diplock.

7      Hawkins v Attorney-General (1999) 14 PRNZ 5 (HC) at [13].

the Court’s inherent power to control its own proceedings and that a Judge may direct that a document may not be accessed.

[21]             In addition, contrary to the understanding recorded in Palmer J’s minute of  14 February 2020, Downs J was not exercising a power usually exercised by a Registrar under the Access to Court Documents Rules when he declined Mr Siemer’s application for access to Mr Rafiq’s application for leave to appeal.

[22]             Mr Siemer’s application sought access to a document that was not part of the “formal Court record” as that term is defined in r 4 of the Access to Court Documents Rules. As such, it was not a document to which the public, including Mr Siemer, had a right of access under r 8(1) of the Rules.

[23]             Mr Seimer was not a party to the Rafiq proceeding so he did not have a right of access to the Court file for that proceeding under r 9 of the Access to Court Documents Rules.

[24]             Rule 11 of the Access to Court Documents Rules deals with applications for access to documents which persons are not entitled to access under rr 8 or 9.  Under  r 11(2), an application for access is made to the Registrar. Under r 11(7), the decision on an application is made by a Judge.

[25]             In summary, 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. I have no jurisdiction to review that decision.

Result

[26]For these reasons, I strike out Mr Siemer’s application.

[27]             If Mr Siemer wishes to challenge Downs J’s decision, he will need to do so by way of appeal in accordance with s 56 of the Senior Courts Act 2016.

G J van Bohemen J