Siemer v Attorney-General

[2020] NZHC 378

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-809

[2020] NZHC 378

UNDER

the Judicial Review Procedure Act 2016 and s 27(2) of the New Zealand Bill of Rights Act 1990

BETWEEN

JANE SIEMER

Plaintiff

AND

ATTORNEY-GENERAL FOR THE MINISTRY OF JUSTICE

First Respondent

AND

CLAYTON LUKE

Second Respondent

On the papers:
Judgment:	4 March 2020

JUDGMENT OF HINTON J

[Re Costs]

This judgment was delivered by me on 4 March 2020 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors:
Crown Law, Wellington

Party:

J Siemer, Auckland

SIEMER v ATTORNEY-GENERAL FOR THE MINISTRY OF JUSTICE [2020] NZHC 378 [4 March 2020]

[1]                 Mrs Siemer filed this proceeding by way of application for judicial review on 1 May 2018. The application concerned a challenge to the process adopted by the first respondent, the Ministry of Justice, in dealing with complaints made by her and her husband regarding the second respondent, Mr Luke, a Disputes Tribunal Referee.1

[2]                 On 19 December 2018, I struck out Mrs Siemer’s statement of claim, finding each of the four causes of action disclosed therein to be clearly untenable, frivolous, and ill-conceived. I also considered that the proceeding was an abuse of process, being part of a larger campaign of harassment against Mr Luke by Mr and Mrs Siemer, which would have warranted the proceeding being struck out in itself.

[3]                 Additionally, I granted the respondent’s application for an extended civil restraint order prohibiting Mrs Siemer from commencing or continuing, without leave, any proceeding in any Court or Tribunal concerning or relating to Siemer v Hickson CIV-2017-044-495, including proceedings relating to the conduct of any judicial officer of the Disputes Tribunal, for three years.

[4]                 I directed that the respondents are entitled to costs on a 2B basis against Mrs Siemer. The respondents have sought clarification as to the total costs award made.

[5]                 The respondents submit that, as the interlocutory orders determined the entire proceeding in their favour and on the basis that the proceeding was an abuse of process, they are entitled to costs for every step taken in the proceeding.2 They claim scale costs on a 2B basis in the amount of $14,272, and disbursements totalling

$1,810.23.

[6]                 When contacted by the Court registry to determine if she intended to reply to the respondent’s memorandum as to costs, Mrs Siemer said she did not intend to do so, having been barred from continuing this proceeding. She also, I note, made scurrilous remarks regarding counsel for the respondent.

1      Siemer v Attorney-General [2018] NZHC 3046.

2      Referring to Lorenzen v Cullen [2012] NZHC 1132 and Yarrow v Finnigan [2017] NZHC 2406 as examples of cases in which costs for the entirety of the proceeding were awarded following a successful strike-out application.

[7]                 The key principle is that the successful party overall should ordinarily be awarded costs on a scale basis.3 The respondents have undoubtedly succeeded in respect of the interlocutory applications, and to the greatest extent conceivable, and are plainly entitled to costs on at least a 2B basis in respect of that application.

[8]                 As to the other steps taken by the respondents, there is no suggestion that any of these were unnecessary or duplicative, the respondent having acted promptly to obtain strike-out. Put simply, Mrs Siemer ought not to have brought this proceeding, as my findings on strike-out entailed. It is appropriate the respondents receive a contribution towards their costs in respect of these steps on the basis they were properly taken in responding to her wholly unmerited claim.4

[9]Mrs Siemer is to pay the respondents costs on a 2B basis in the amount of

$14,272, together with disbursements in the amount of $1,810.23, producing a total sum of $16,082.23.

Hinton J

3      High Court Rules 2016, r 14.2(1)(a); and Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109; [2013] 1 NZLR 305.

4      The same course was followed by Harrison J in Cooper v van Heeren HC Auckland CIV-2004- 404-2545, 30 June 2006.