Siemer v Attorney-General
[2018] NZHC 3406
•19 December 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-000809
[2018] NZHC 3406
UNDER the Judicial Review Procedure Act 2016 and s 27(2) of the New Zealand Bill of Rights Act 1990 BETWEEN
JANE DINSDALE SIEMER
Applicant
AND
THE ATTORNEY-GENERAL, FOR THE MINISTRY OF JUSTICE
First Respondent
CLAYTON LUKE
Second Respondent
Hearing: 25 October 2018 Appearances:
No appearance by or for the Applicant
M McKillop for the First and Second Respondents
Judgment:
19 December 2018
JUDGMENT OF HINTON J
This judgment was delivered by me on 19 December 2018 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules
…………………………………………………………………… Registrar/Deputy Registrar
Solicitors:
Crown Law, Wellington
Party:
J Siemer
JANE DINSDALE SIEMER v THE ATTORNEY-GENERAL, FOR THE MINISTRY OF JUSTICE [2018] NZHC 3406 [19 December 2018]
[1] Mrs Siemer filed this proceeding by way of application for judicial review on 1 May 2018.1 Her application challenged the process adopted by the Ministry of Justice in dealing with complaints made by her and her husband to the Ministry regarding Clayton Luke, a Disputes Tribunal Referee.
[2] The Attorney-General, for the Ministry of Justice and Mr Luke, now seek strike-out and restraint orders against Mrs Siemer.
[3] The first order sought is that the statement of claim filed by Mrs Siemer against the respondents be struck out on the grounds that three of the four causes of action are not reasonably arguable, and the fourth is frivolous and an abuse of process. The second order sought, related to the first, is that the Court dismiss the entire proceeding brought by Mrs Siemer against the respondents, as it is not capable of being reformulated into a statement of claim that complies with r 15.1 of the High Court Rules 2016 (the Rules).
[4] The third order sought is a civil restraint order against Mrs Siemer, of an extended effect, under ss 166(1) and (2)(b) of the Senior Courts Act 2016, in the following terms:
The applicant is prohibited from commencing or continuing, without leave, any proceeding in any court or tribunal, concerning or relating to Siemer v Hickson CIV-2017-044-495 and CIV-2017-044-562, including (without limitation) proceedings relating to the conduct of any judicial officer of the Disputes Tribunal, for three years.
[5] The issue in respect of the first and second orders sought is whether Mrs Siemer’s statement of claim, should be struck out in accordance with r 15.1(1)(a) and (c) of the Rules, and whether the proceeding should be dismissed in accordance with r 15.1(2) of the Rules.2
1 Her statement of claim is dated 23 April 2018. The statement of claim refers to the parties as plaintiff and defendants. They should properly be applicant and respondents. I note counsel for the Attorney-General and Mr Luke referred throughout his submissions to those parties as respondents. I have used the correct terminology and amended the intituling accordingly.
2 Though the respondents did not explicitly refer to the rule, I take it that they seek the dismissal of the proceeding under r 15.1(2). Under r 15.1(2), if a Court strikes out a statement of claim under r 15.1(1), it may subsequently dismiss the proceeding.
[6] The issue in respect of the third order sought is whether Mrs Siemer has brought at least two proceedings about any matter in any court or tribunal, that are or were totally without merit, and if that threshold is met, whether I should exercise my discretion to make such an order.
Procedure
[7]Mrs Siemer is self-represented.
[8] The interlocutory application seeking strike out of Mrs Siemer’s statement of claim and dismissal of the proceedings, and the civil restraint order, was filed on 26 July 2018,3 together with two affidavits of Clayton Luke and Andrea Walker, solicitor.
[9] Mrs Siemer filed a notice of opposition and, together with Mr Siemer, a joint affidavit in response, on 1 August 2018. The affidavit is subject to an order of Fitzgerald J, by Minute of 7 August 2018, that it not be read in this proceeding. The reason for such an order is that Fitzgerald J had previously ordered, by Minute of 31 May 2018, that the dissemination of one of the exhibits contained within the affidavit be prohibited. That exhibit was only to be produced in a separate proceeding concerning judicial review of the District Court and the Disputes Tribunal. It appears that shortly after the order was made on 31 May 2018, Mrs Siemer annexed a copy of the exhibit to two separate proceedings before this Court, including the present.
[10] Sometime later, Mrs Siemer applied for retrospective leave to adduce the prohibited exhibit in this proceeding. Fitzgerald J, by Minute of 31 August 2018, declined leave, as she considered that there was no discernible basis on Mrs Siemer’s pleadings for the relevance of that exhibit.
[11] On 1 August 2018, Fitzgerald J set timetabling directions for the respondents’ present application, including setting the hearing date for 25 October 2018. On 3 August 2018, Mrs Siemer was notified of the hearing date.
3 The application also sought an order that the respondents be excused from filing a statement of defence until further order of the Court. This was granted by Fitzgerald J in her Minute of 1 August 2018.
[12] The Registrar received no communication from Mrs Siemer regarding the hearing date until 21 September 2018, when Mrs Siemer emailed advising that she was overseas from 16 October 2018 to 2 November 2018. Mrs Siemer stated: “This said, I am perfectly content for the strike out to be determined on the papers.”
[13] Fitzgerald J, by Minute of 3 October 2018, stated that she did not consider it appropriate for the respondents’ application to be dealt with on the papers, acknowledging this was properly a matter for the Judge to whom the hearing was allocated. She suggested Mrs Siemer seek an adjournment to a date when she would be available and in the country.
[14] Mrs Siemer replied to the 3 October 2018 Minute on 8 October 2018, stating that she had “…no intention of physically appearing in Mr Luke’s application seeking a general order barring me court access and to strike out my Ministry of Justice judicial review …”
[15] Mrs Siemer also filed an affidavit on 8 October 2018, replacing the affidavit Fitzgerald J ordered not be read in this proceeding.
[16] On 15 October 2018, Mrs Siemer filed “Written and Oral Submissions of Plaintiff in Opposition to Interlocutory Application” relating to both applications.
General background
[17] Mrs Siemer is married to Vincent Siemer, who has an extensive history of litigation and is currently subject to a vexatious litigant order under the Judicature Act 1908. The terms of that order are that Mr Siemer must obtain the leave of the High Court before commencing or continuing any proceeding in the High Court or any inferior court.
[18] Mrs Siemer has been a party to some of Mr Siemer’s litigation and has also commenced litigation in her own name. I subsequently refer in greater detail to Mrs Siemer’s litigation history when considering whether to grant an order under s 166(1) of the Senior Courts Act 2016.
[19] In 2017, Mrs Siemer and Mr Siemer jointly issued a proceeding in the Disputes Tribunal seeking $12,000 in damages for breach of contract against Jude Hickson, a builder the couple had engaged to undertake recladding work at their home in Whangaparaoa. This proceeding was in contravention of the vexatious litigant order against Mr Siemer.4 Mrs Siemer, around the same time, also initiated her own separate proceeding against Mr Hickson for an alleged accidental double payment of an invoice issued by Mr Hickson, and sought the return of $6,141. The two proceedings were consolidated and heard together (the Hickson proceedings).
[20] Mr Luke was the Disputes Tribunal Referee who adjudicated on their claims. On 3 October 2017, he dismissed the Siemers’ claims in the Hickson proceedings. He found $6,281 was still owed to Mr Hickson, which exceeded the accidental double payment, and that was to be offset.
[21]Mrs Siemer appealed to the District Court, which dismissed her appeal.5
[22] Since that time, Mrs Siemer has taken all of the following actions following on from the Hickson Disputes Tribunal proceedings:
(a)She commenced a judicial review proceeding against the Disputes Tribunal and the District Court in respect of their decisions.6 That proceeding was to be heard before Downs J, on 1 November 2018. However, Mrs Siemer did not appear and Downs J, by Minute, adjourned the matter until 1 March 2019.
(b)She has made numerous complaints about the conduct of Mr Luke to the Ministry of Justice and the New Zealand Law Society (the Law Society).
(c)She initiated a judicial review proceeding against both Mr Luke and the Law Society in respect of the Standards Committee’s response to one
4 It is unclear how Mr Siemer managed to file a proceeding in his own name.
5 Siemer v Hickson [2018] NZDC 4262.
6 Siemer v District Court HC Auckland CIV-2018-404-610.
of her complaints.7 In a memorandum to the Court in that same proceeding, on 1 May 2018, she stated that “… [Mr Luke] abuses his wife, allegedly.”
(d)By email sent by Mr Siemer on 19 February 2018, the couple jointly sought a payment from Mr Luke in the order of $8,000, in settlement of “all matters” between them and Mr Luke.
(e)On 27 February 2018, Mrs Siemer made an ostensible request for legal advice from Mr Luke, through his (genuine) website. She sought “advice” as to whether she could sue Mr Luke in the Disputes Tribunal for revealing the settlement proposal to the Law Society, and for wrongfully accusing her of extortion.
(f)On 28 February 2018, she commenced proceedings in the Disputes Tribunal against Mr Luke following his response to the settlement offer referred to above, and her request for “advice” from him.8 She claims that Mr Luke breached the Evidence Act 2011 by revealing the settlement proposal to the Law Society, and that he had wrongfully accused her of extortion. On 31 May 2018, she filed a memorandum in that proceeding stating: “This case is not about the respondent’s unhappy childhood, not about why he legally changed his name to Clayton Luke …”
[23] Also relevant to the present applications, because it is claimed that the Siemers acted in concert, is Mr Siemer’s conduct. Mr Siemer has engaged in similar behaviour towards Mr Luke:
(a)He complained about Mr Luke to the Law Society on 10 October 2017.
7 Siemer v New Zealand Law Society [2018] NZHC 2400.
8 Siemer v Luke DT North Shore CIV-044-319; Mr Luke, in his affidavit of 24 July 2018, records that this proceeding has not yet been determined.
(b)He contacted the Minister of Justice on 2 November 2017, regarding a complaint about Mr Luke and Anne Darroch, the Principal Disputes Referee (the Principal Referee).
(c)On 24 November 2017, he made an ostensible request for legal advice from Mr Luke, through Mr Luke’s genuine website. He sought “advice” on how to appeal against an “incompetent or corrupt decision maker”, and how to make complaints about that decision maker.
(d)He published an article on his own website, kiwisfirst.co.nz, where Mr Luke is referred to as a “bottom-feader [sic]”, and suggested that the Law Society is likely to minimise any negative conduct of Mr Luke’s in a manner similar to the Catholic Church’s response to protecting “pedophile [sic] priests”.
(e)On 10 October 2017, he distributed flyers at the North Shore District Court, by sliding one under the hearing room door of the Disputes Tribunal. A flyer was also left in the letterbox of Mr Luke’s residential address. These flyers directed recipients to a false website about Mr Luke that was clearly intended to disparage Mr Luke both professionally and personally. The website claimed to provide: “Insight into Clayton Luke’s novel and limited knowledge of the law …”
(f)In early July 2018, a sandwich board, depicting the images of Mr Luke and Anne Darroch, the Principal Referee, was erected on Council land next to the North Shore District Court, offering “FREE Tribunal Referree [sic] Advice Save Dollars!”. This was submitted to have clearly been the work of Mr Siemer on the basis that it also depicts Ms Darroch, who has also been the subject of complaints by the Siemers. This is clearly a reasonable inference.
Strike-out application
Law
[24] Under r 15.1(1)(a) of the Rules, the Court may strike out all or part of a statement of claim if it discloses no reasonably arguable cause of action.
[25] In Attorney-General v Prince, the Court of Appeal summarised the established criteria for striking out in such circumstances:9
(a)Pleaded facts are assumed to be true. This does not extend to pleaded allegations which are entirely speculative.
(b)The cause of action must be clearly untenable.
(c)The jurisdiction is to be exercised sparingly and only in clear cases.
(d)The jurisdiction is not excluded by the need to decide difficult questions of law.
[26] Under r 15.1(1)(c) of the Rules, the Court may strike out all or part of a statement of claim if it is frivolous or vexatious.
[27] Under r 15.1(2) of the Rules, if the Court strikes out a statement of claim, it may by the same or subsequent order dismiss the proceeding.
The complaints process
[28] The essence of Mrs Siemer’s judicial review application is a challenge to the handling by the Ministry of Justice of the complaints made by Mr and Mrs Siemer about Mr Luke. Further detail is therefore required in respect of that complaints process.
[29] On 28 February 2018, Mr Siemer made a complaint to the Ministry of Justice regarding Mr Luke.
9 Attorney-General v Prince [1998] 1 NZLR 262 at 267.
[30] A Ministry of Justice staff member, Alex Pickard, responded to Mr Siemer’s complaint on 2 March 2018. He noted that as set out in a letter dated 20 December 2017 addressed to Mr Siemer, the Ministry had provided all the information it was able to provide and would not enter into any further correspondence on the matters raised by him.
[31] On 23 March 2018, Mr Siemer then sought to commence judicial review proceedings concerning the handling of his complaint. He first needed to seek leave, which was refused by Peters J on 11 April 2018.10
[32] Despite this, the following day, 12 April 2018, Mr Siemer again sought leave to commence proceedings against the Ministry of Justice. Venning J, by Minute of 19 April 2018, found that there was no jurisdiction to reconsider a refusal to grant leave and dismissed Mr Siemer’s claim.
[33] On 3 March 2018, Mrs Siemer sent her own complaint to the Ministry of Justice, which substantially reiterated Mr Siemer’s complaint of 28 February 2018. The essence of that complaint alleged misconduct on the part of Mr Luke, and in particular claimed the following:
(a)Mr Luke’s conduct as the Disputes Tribunal Referee at the hearing of the Hickson proceedings was reprehensible.
(b)Mr Luke has and continues to receive money in advance for legal advice he provides to claimants appearing before the Disputes Tribunal.
(c)Mr Luke deliberately and maliciously shared a confidential settlement offer made by Mrs Siemer, with a third party, with the aim of gaining an improper pecuniary and personal benefit.
(d)Mr Luke accused Mrs Siemer of committing the criminal act of extortion.
10 Siemer v Ministry of Justice [2018] NZHC 646.
(e)Mr Luke had stated he had a defence to a Law Society complaint made against him by Mrs Siemer, which he could not raise because he is a judicial officer.
[34] On 28 March 2018, the Ministry of Justice responded to both complaints via identical letters to both Mrs Siemer and Mr Siemer. The Ministry said that the first complaint, concerning Mr Luke’s conduct during the hearing of the Hickson proceedings, had been referred to the Principal Referee. It further noted that, if the Principal Referee determined that the complaint warranted investigation, further correspondence may follow.
[35]Concerning the other four allegations, the letters had this to say:
The other four allegations are in relation to matters that you have raised with the New Zealand Law Society and alleged breaches of the rules that govern lawyers. Neither the Ministry of Justice or the Principal Referee have a role in investigating complaints of this nature.
[36] Mrs Siemer commenced the current proceeding by way of statement of claim, filed on 1 May 2018, pleading that the Ministry of Justice’s approach to dealing with the complaints was “substantively unfair”; “based upon irrelevant considerations”; “a breach of natural justice”; and “ultra vires”.
Overview of submissions
[37] The respondents say that three of Mrs Siemer’s four causes of action are not arguable in law. These are the first, third and fourth causes of action, contained in Mrs Siemer’s statement of claim. Those causes of action plead “substantive unfairness”, “breach of natural justice” and “ultra vires”.
[38] The respondents say that the other cause of action, pleading “irrelevant considerations”, might be arguable in law by reference to considerations contained in the Ministry of Justice’s complaints procedure or s 6C of the Disputes Tribunal Act 1988. That said, the respondents submit that such a cause of action is, in any event, frivolous and ought to be struck out as an abuse of process under r 15.1(1)(c) of the Rules.
[39] As noted earlier, Mrs Siemer filed brief submissions. By and large, these went no further than suggesting impropriety on the part of the Ministry of Justice, the Principal Referee and Mr Luke. Unfortunately, her submissions do not respond to the specific arguments raised by the respondents as to why the causes of action in Mrs Siemer’s statement of claim should be struck out.
[40] Mrs Siemer said in her submissions that she would not be drawn into responding to “Crown Law’s mud-slinging…”. She also suggested that the respondents, in concert, have turned this “simple judicial review claim … into a circus.”
[41] I will refer to the comments made in Mrs Siemer’s written submissions, where relevant.
Analysis
Preliminary issues
[42] There are three preliminary issues for consideration prior to addressing the statement of claim.
[43] First, the respondents point out that there is no explicit statutory power for processing and responding to complaints about Disputes Tribunal members, such as Mr Luke. However, the Ministry of Justice has adopted a procedure for processing such complaints, which it has published on its website.
[44] The complaints procedure sets up an official correspondence email address, which operates as a “clearinghouse” for complaints. The response of the Ministry depends on the nature of the complaint. Where a complaint is made which concerns the conduct of a Disputes Tribunal Referee, the Ministry will forward that complaint on to the Principal Referee for her consideration, although the Ministry does not and cannot make any guarantee that the Principal Referee will conduct an investigation. On the other hand, if a complaint concerns the decision of the Disputes Tribunal in a particular case, is vexatious, made in bad faith, or has previously been considered, the
Ministry makes it clear that it will be dismissed outright. Otherwise, it undertakes to consider complaints seriously, thoroughly and impartially.
[45] The respondents submit, and I accept, that such a complaints procedure reflects the functions of the Principal Referee, under s 6C(1)(a), (b) and (h) of the Disputes Tribunal Act 1988, in that it is a partial delegation of an administrative aspect of the Principal Referee’s functions. As is apparent from the Principal Referee’s report to the High Court, contained in the affidavit of Mrs Siemer, the Principal Referee treats the Ministry as the first line of response to general correspondence and complaints concerning the Disputes Tribunal.
[46] Second, the respondents point out that Mrs Siemer’s statement of claim pleads that both the 2 March 2018 rejection email from Mr Pickard, and the 28 March 2018 letters, were unlawful. The respondents argue that the email from Mr Pickard is not reviewable on any basis. That is because the email was entirely overtaken by the letters of 28 March, which are the operative reviewable act. Relief in respect of Mr Pickard’s 2 March email would inevitably be declined because any effect that email had has been negated and overtaken by the subsequent 28 March letters. I agree.
[47] Third, Mrs Siemer makes a broad-ranging submission to the effect that her right to pursue judicial review is “guaranteed by statute as a preferred right in law, a heightened legal threshold”. In support, she cites ss 6 and 27(2) of the New Zealand Bill of Rights Act 1990. Section 27(2) provides:
27 Right to justice
…
(2)Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.
…
[48] As the Court of Appeal made clear in Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries, the principles to be applied on an application to strike out judicial review proceedings are no different to those to be
applied in any other case.11 The Court of Appeal did not consider the New Zealand Bill of Rights Act 1990. However, considering the extremely high threshold required to be met before a cause of action can be struck out, I consider that ordinary principles of strike out are a reasonable limit on Mrs Siemer’s right to apply for judicial review, that can be demonstrably justified in a free and democratic society.12
First cause of action – “substantive unfairness”
[49]Mrs Siemer’s statement of claim pleads at paragraphs 15 to 17 that:
15.0 - The Rejection’s [2 March 2018] reason that the Complaint would not be considered due to a supposed letter [20 December 2017] which predated events and evidence, denied the Plaintiffs elementary access to the First Defendant’s official complaint remediation process and was substantively unfair.
16.0 - The Letter’s dismissiveness of 5 complaints concerning the Second Defendant’s behaviour was equally unfair and the reasons given irrelevant.
17.0 - The First Defendant gave no relevant or lawful reason for denying the Plaintiffs elementary access to its official complaint procedure and this was substantively unfair.
[50] The respondents submit that “substantive unfairness” as Mrs Siemer has pleaded in the above paragraphs is merely different terminology for unreasonableness,13 and that neither the complaints procedure, nor its particular application in this case, was unreasonable. The only guarantee contained in the complaints procedure is that appropriate complaints will be passed on to the Principal Referee, at which stage she may engage in a discretionary exercise of her functions under s 6C of the Disputes Tribunal Act 1988.
[51] At paragraph 15, Mrs Siemer pleads that the response of 2 March 2018 was substantively unfair. As noted above, the 2 March 2018 email was overtaken by the 28 March 2018 letters. Therefore, I consider review in respect of the 2 March 2018 email is clearly untenable and cannot succeed. I would strike out the cause of action at paragraph 15.
11 Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53 at 63.
12 New Zealand Bill of Rights Act 1990, s 5.
13 Graham Taylor Judicial Review: A New Zealand Perspective (4th ed, LexisNexis, Wellington, 2018) at 748.
[52] As to the causes of action contained at paragraphs 16 and 17, the respondents point out that the Ministry’s complaints procedure applies “if you believe you have been treated badly or rudely by a member of a Tribunal hearing your case”.
[53] The Ministry’s letters of 28 March 2018 dismissed four of the five complaints by Mr and Mrs Siemer relating to Mr Luke. These complaints did not allege that Mr Luke had acted “badly or rudely” in his capacity as a Disputes Tribunal Referee at the hearing of the Hickson proceedings. The Ministry did refer the single complaint concerning Mr Luke’s conduct during the hearing to the Principal Referee. Moreover, the letter did give a reason for dismissing the four complaints, and this reason is entirely consistent with the application of the complaints procedure to cases of ill-treatment by a referee.
[54] I consider that the claim that the Ministry’s conduct in respect of the letters of 28 March 2018 was “substantively unfair”, or unreasonable for that matter, is clearly untenable and cannot succeed.
[55]I would strike out the causes of action at paragraphs 16 and 17.
Second cause of action – “irrelevant considerations”
[56]Mrs Siemer’s statement of claim pleads at paragraphs 18 and 19 that:
18.0 - The Rejection’s [2 March 2018] reliance upon a supposed letter from
[20] December 2017 which predated events and evidence relied upon in the Complaint was an irrelevant consideration.
19.0 - The Letter’s reliance upon the Second-named Plaintiff making similar complaints to other entities as a reason for not considering the Complaint merits was irrelevant.
[57] As to paragraph 18, irrespective of whether the 20 December 2017 letter was an irrelevant consideration for the Ministry of Justice to rely upon when issuing the rejection email of 2 March 2018, that cause of action cannot succeed because it has been superseded by the letters of 28 March 2018 as the operative reviewable act. I would strike out the cause of action at paragraph 18.
[58] As to paragraph 19, the respondents submit that the claim is frivolous and ought to be struck out as an abuse of process.
[59] The Ministry’s reasons for dismissing the complaints in the 28 March 2018 letters, were that the Siemers had referred those matters to the Law Society, the complaints were of alleged breaches of the rules governing lawyers, and neither the Ministry, nor the Principal Referee have a role in investigating complaints of such a nature. Those reasons are clear and accord with the intention of the Ministry’s complaints procedure and s 6C of the Disputes Tribunal Act 1988.
[60] There is no explicit statutory obligation for the Principal Referee to consider complaints regarding referees. Where complaints touch upon the referee’s conduct beyond their role with the Disputes Tribunal, it is undoubtedly a permissible consideration to decline to further consider a complaint, where it can be resolved by a more appropriate investigative or disciplinary body.
[61]I would strike out the cause of action at paragraph 19.
Third cause of action – “natural justice”
[62]Mrs Siemer’s statement of claim pleads at paragraph 20 that:
20.0 - The First Defendant’s refusal to consider the Complaint merits and evidence was a breach of its official obligation to do so and, in so doing, breached the Plaintiffs’ right to natural justice in the First Defendant’s complaint process.
[63] Mrs Siemer points to the report of the Principal Referee, which she submits is confirmation of the Principal Referee’s statutory duty to address these complaints. That is incorrect. The Principal Referee’s report clearly states that the complaints procedure is to deal with complaints made to her or the Ministry of Justice, concerning the conduct of Referees in hearing an applicant’s case, not in any other context.
[64] The respondents submit that the Ministry of Justice has no official obligation to consider the merits and evidence of a complaint. That is undoubtedly correct. The complaints procedure reveals that the Ministry of Justice acts only as a clearing-house for complaints. It also makes it clear that, where the complaint concerns the Disputes
Tribunal’s decision, has no bearing on the functions of the Disputes Tribunal, or is frivolous, vexatious or otherwise not made in good faith, the complaint will be dismissed.
[65]I would strike out the cause of action at paragraph 20.
Fourth cause of action – “ultra vires”
[66]Mrs Siemer’s statement of claim pleads at paragraph 21 that:
21.0 – The “advisor” of “communications” [Mr Pickard] who issued the Rejection [2 March 2018] was unqualified to so prevent the Plaintiff’s husband’s complaint, rendering the rejection ultra vires.
[67] The respondents submit that, if the Court accepts that the Ministry of Justice has an implied power to adopt the complaints procedure, for instance because the Principal Referee had delegated part of her role to the Ministry of Justice, then no error of law claim regarding the qualification of a staff member to deal with the complaint can possibly succeed. This is because there are no positive statements of law governing the operation of the complaints procedure in such circumstances. Therefore, it cannot be said to be reasonably arguable that Mr Pickard was unqualified at law to issue the rejection.
[68] I accept the premise that the Ministry of Justice has an implied power to adopt the complaints procedure and therefore it cannot be reasonably arguable that Mr Pickard was unqualified at law to issue the rejection.
[69] In any event, this cause of action relates to the 2 March 2018 rejection letter, which I have held was superseded as the operative reviewable act, by the letters of 28 March 2018.
[70]I would strike out the cause of action at paragraph 21.
Abuse of process
[71] The respondents also submit that the proceeding is an abuse of process and ought to be struck out under r 15.1(1).
[72] They suggest that Mrs Siemer’s claim substantially duplicates Mr Siemer’s two previous attempts to institute proceedings against the respondents. As such, it is submitted that Mrs Siemer is attempting to circumvent the vexatious litigant order made against her husband.
[73]The respondents point out that:
(a)Mrs Siemer’s complaint to the Ministry of Justice about Mr Luke essentially duplicates Mr Siemer’s.
(b)Portions of Mrs Siemer’s statement of claim challenging the decision-making process of the Ministry of Justice are identical to Mr Siemer’s.
(c)The signature on the statement of claim was originally that of Mr Siemer, but has been crossed out and replaced with Mrs Siemer’s.
[74] In the same vein, I note that the front cover of Mrs Siemer’s statement of claim states that it was filed by Mr Siemer.
[75] The respondents also point out that the underlying Disputes Tribunal hearing before Mr Luke, was an abuse of process as it was commenced in breach of Mr Siemer’s vexatious litigant order.
[76] The respondents also allege that the proceeding is part of a larger campaign of harassment, directed towards Mr Luke.
[77]I agree with each of the above submissions.
[78] As outlined in Attorney-General v Siemer (the High Court proceeding concerning Mr Siemer’s own vexatious litigant order), Mr Siemer has an extensive history of making complaints about judicial officers, and vexatious naming of judicial officers as parties to litigation.14 Mrs Siemer has now named Mr Luke, a judicial
14 Attorney-General v Siemer [2014] NZHC 859.
officer, as a respondent in this proceeding, though all four causes of action appear to relate solely to the procedure adopted by the Ministry of Justice in dealing with the complaints made by the Siemers.15
[79] Mr and Mrs Siemer have also pursued other non-judicial methods of harassment of Mr Luke. This has included the making and disseminating of views about Mr Luke on Mr Siemer’s website, distribution of flyers, the sandwich board outside the District Court, and vexatious requests for legal advice from Mr Luke.
[80] The respondents submit, and I wholly accept, that an inference can be drawn that this proceeding, in no small part, has been undertaken as a means to harass Mr Luke. There is also no question but that Mr and Mrs Siemer have been acting in concert.
[81] Were I not striking out all four causes of action in the statement of claim on other bases, I would strike out the statement of claim as an abuse of process for the foregoing reasons.
Conclusion on strike-out
[82] I consider that the lack of reasonably arguable causes of action and the abuse of process issues cannot be cured by an amended pleading. The defects in Mrs Siemer’s statement of claim run too deep. As such, I would order that the proceeding be dismissed in its entirety under r 15.2 of the Rules.
Civil restraint order application
Law
[83] As noted at the outset of this judgment, the respondents also seek an “extended order”, under ss 166(1) and (2)(b) of the Senior Courts Act 2016. The effect of that order is to restrain Mrs Siemer from commencing or continuing civil proceedings on a matter related to the Hickson proceedings.16
15 The respondents did not seek that the proceeding be struck out against Mr Luke on this basis.
16 Senior Courts Act 2016, s 166(4). Section 166 also provides for limited orders (restraint over a particular matter) and general orders (restraint over any civil proceeding).
[84] Section 167 of the Senior Courts Act 2016 sets out when an extended order may be made under s 166(1). The circumstances are relevantly:
167 Grounds for making section 166 order
…
(2) A Judge may make an extended order under section 166 if, in at least 2 proceedings about any matter in any court or tribunal, the Judge considers that the proceedings are or were totally without merit.
…
(5)The proceedings concerned must be proceedings commenced or continued by the party to be restrained, whether against the same person or different persons.
…
[85] The applicant for an order needs to demonstrate that the respondent has commenced or continued at least two proceedings that were “totally without merit”. An order remains discretionary. The Court still has to consider it appropriate.
[86] The term “totally without merit” is not defined in the Senior Courts Act 2016. In Genge v Visiting Justice Christchurch Men’s Prison, Nation J referred to the factors identified by the Ministry of Justice in its Departmental Report to the Justice and Electoral Committee, as relevant to determining whether a proceeding is totally without merit.17 Those factors are:
(a)The proceedings have no prospect for success, whatsoever;
(b)The proceedings expose the defendants to inconvenience, harassment and expense out of all proportion to the gain a plaintiff is likely to receive;
(c)The proceedings are brought at the drop of a hat despite the lack of merit;
17 Genge v Visiting Justice Christchurch Men’s Prison [2018] NZHC 1457 at [29].
(d)The litigant has paid no regard to the merits, proportionality or costs of the proceeding;
(e)The statement of claim or defence discloses no reasonable grounds of bringing or defending the claim;
(f)The statement of claim is an abuse of the Court’s process or is otherwise likely to obstruct the just disposal of the proceeding; and
(g)The litigant has failed to comply with a rule, practice direction or court order.
[87] Under the former s 88B of the Judicature Act 1908, the predecessor to s 166, the proceedings instigated were required to be vexatious.18 While no longer an explicit requirement, the test for vexatiousness is still relevant as to whether an order is necessary. McGechan notes the following indications that a proceeding was vexatious:19
(a)The pattern of complex, prolix, and sometimes incomprehensible pleadings.
(b)The proceedings showing the respondent to be an almost compulsive litigant against a widening circle of defendants.
(c)Extravagant claims or scandalous allegations which the litigant has no prospect of substantiating or justifying.
(d)The frequency with which part or all of the respondent’s statements of claim have been struck out.
18 The order against Mr Siemer was made under s 88B, and is the equivalent of what is now a general order under s 166.
19 Andrew Beck and others McGechan on Procedure (online looseleaf ed, Thompson Reuters) at [J88B.04].
(e)The extent to which the respondent allowed their proceedings to lie dormant.
[88] As noted by Nation J in Genge20 and also Ronald Young and Brown JJ in their joint judgment declaring Mr Siemer a vexatious litigant,21 the Court should be slow to make a restraint order as it amounts to a breach of a person’s right of access to justice. However, where appropriate, considering the worry and expense that the opponents of meritless litigation face, and the barely sufficient resources of the judicial system to afford justice without unreasonable delay to those who have genuine grievances, a Court should exercise its discretion to make an order.22
Analysis
The totally meritless proceedings
[89] An order under s 166 necessitates at least two totally meritless proceedings. The present proceeding is clearly one. I consider there are at least two other proceedings in that category, being Siemer v Stiassny and Siemer v Auckland High Court.23
[90] In Siemer v Stiassny, Mr and Mrs Siemer brought a proceeding against, among others, the Solicitor General, the Judicial Conduct Commissioner and “the Chief Justice of the Supreme Court of New Zealand”. The statement of claim alleged conspiracy to injure by unlawful means and misfeasance in public office. The proceeding also largely sought to relitigate matters that had already been determined in prior judgments in relation to Mr Stiassny, who was a receiver of one of Mr Siemer’s companies.
[91] Mrs Siemer played a significant role in the Stiassny proceeding, being listed on the cover page as the person who submitted the claim, and signing and submitting the notice of opposition to strike out.
20 At [30].
21 Attorney-General v Siemer [2014] NZHC 859 at [50]–[52].
22 Attorney-General v Jones [1990] 1 WLR 859 (CA) at 865.
23 Siemer v Stiassny HC Auckland CIV-2008-404-6822, 30 November 2009; Siemer v Auckland High Court [2013] NZHC 3540.
[92] The Stiassny proceeding was struck out by Winkelmann J on the basis that the claim could not succeed and that the proceeding was an abuse of process because it attempted to relitigate existing proceedings.24 An appeal to the Court of Appeal was dismissed.25 An application for the Court of Appeal to recall its judgment was also dismissed,26 and an application for further leave was declined by the Supreme Court.27
[93] Ronald Young and Brown JJ, in their joint judgment declaring Mr Siemer a vexatious litigant, stated that the Stiassny proceeding was vexatiously instigated, and continued, and was an attempt to relitigate that which had already been finally determined.28 They also noted that much of the claim was abusive towards Judges, and others involved in the litigation.29
[94] In Siemer v Auckland High Court, Mrs Siemer alone filed a proceeding, naming Hansen J as a party, and claiming that a security for costs order upheld by the Judge had caused her economic damage in the realm of $150,000.30 Toogood J held that since the claims against the High Court and Hansen J were barred by judicial immunity, the claims were untenable.31 He also held that the proceeding was an abuse of process as the subject matter of the proceedings, being the security for costs order, had been before the courts in the past; that Mrs Siemer had exhausted the proper means available to her to challenge the order, and therefore any further attempt at having the issues heard was an attempt to relitigate.32
Other relevant matters
[95]The respondents rely in addition on other matters referred to below.
[96] Mrs Siemer has most recently sought to commence proceedings against Anne Darroch, the Principal Referee, in the Disputes Tribunal. The respondents submit that this proceeding was totally meritless. However, it was not accepted for
24 Siemer v Stiassny HC Auckland CIV-2008-404-6822, 30 November 2009.
25 Siemer v Stiassny [2011] NZCA 1.
26 Siemer v Stiassny [2011] NZCA 144.
27 Siemer v Stiassny [2011] NZSC 43.
28 At [121].
29 At [121].
30 Siemer v Auckland High Court [2013] NZHC 3540.
31 At [38].
32 At [46].
filing by a District Court Registrar, a decision upheld on review by Judge Sharp. I consider it debatable therefore whether this proceeding was “commenced or continued” by Mrs Siemer. I do not need to decide the point, as there are at least three proceedings which do qualify. I accept, in any event, that this attempted proceeding is relevant to my discretion. The claim against Ms Darroch was essentially that the Principal Referee did not exercise her powers in a manner consistent with justice or the Disputes Tribunal Act 1988, when she decided not to disqualify Mr Luke in the Hickson proceedings. Such a claim is clearly outside the boundaries of jurisdiction conferred upon the Disputes Tribunal. As the Principal Referee report notes, the Principal Referee does not have jurisdiction to remove a Referee from a Disputes Tribunal hearing. The attempted proceeding was therefore meritless.
[97] As noted earlier, Mrs Siemer has also commenced related proceedings against the Law Society and Mr Luke, challenging the Law Society’s treatment of her complaint regarding Mr Luke.33 Courtney J dismissed that proceeding and ordered costs against Mrs Siemer when she failed to appear at the hearing despite a warning in a 7 August 2018 Minute of Fitzgerald J that the matter would not be dealt with on the papers.34
[98] In that same proceeding, Mrs Siemer filed a memorandum, to which Fitzgerald J responded in a Minute of 3 May 2018, saying that “… Mrs Siemer is not to include inflammatory, scandalous and what she herself accepts to be irrelevant material in her case management memoranda (or other court documents). Were she to continue to do so, it would give rise to a concern that the proceedings were being pursued for a collateral purpose, namely to smear [Mr Luke’s] name”.
[99] Mrs Siemer has also recently brought a Disputes Tribunal claim against Mr Luke personally, for disclosing the contents of the settlement offer made by Mrs Siemer, to the Law Society, and for wrongfully accusing her of committing criminal extortion.35
33 Siemer v New Zealand Law Society [2018] NZHC 2400.
34 At [3].
35 Siemer v Luke DT North Shore CIV-2018-004-319.
Conclusion on restraint order
[100] I consider the threshold for an order under s 166(1) of the Senior Courts Act 2016 has been met. On the basis of the matters I have outlined in the foregoing paragraphs, I am satisfied that Mrs Siemer has brought at least two (in fact three) proceedings which have been totally without merit. Those are the current proceeding, Siemer v Stiassny, and Siemer v Auckland High Court.
[101] Those proceedings had no prospect of success whatsoever, and appear to have been orchestrated substantially to harass and inconvenience the respective defendants.
[102] I also consider that this is a case where the discretion to grant an extended order should be exercised in the respondents’ favour. I take into account my findings above, both in relation to the three meritless proceedings, and also the other proceedings, or attempted proceedings, to which I have referred.
[103] I also take into account the joint campaign of harassment waged by Mr and Mrs Siemer against Mr Luke and others, both inside and outside the courts, and my conclusion that Mrs Siemer is fronting litigation to circumvent the vexatious litigant order made against her husband.
[104] I reject Mrs Siemer’s submission to the effect that no Court or complaints service has made an inquiry into her allegations against the respondents and that the Court should not therefore grant the s 166 order. The Ministry of Justice did consider her complaints. The Ministry decided to dismiss four, and refer one to the Principal Referee. Furthermore, I have in this proceeding considered, and struck out Mrs Siemer’s causes of action against the Ministry regarding her complaints.
[105] While a civil restraint order is not to be imposed lightly, I consider that no lesser measure than an extended order on the terms sought by the respondents is likely to be effective in preventing ongoing abuse of the Court’s processes by Mrs Siemer.
Result
[106] The application for an order striking out Mrs Siemer’s statement of claim in CIV-2018-404-809 is granted.
[107] The application for an order dismissing the entire proceeding brought by Mrs Siemer in CIV-2018-404-809 is granted.
[108]The application for an extended order is granted in the following terms:
Jane Dinsdale Siemer is prohibited from commencing or continuing, without leave, any proceeding in any Court or Tribunal, concerning or relating to Siemer v Hickson CIV-2017-044-495 and CIV-2017-044-562, including (without limitation) proceedings relating to the conduct of any judicial officer of the Disputes Tribunal, for three years.
[109]The respondents are entitled to costs on a 2B basis against Mrs Siemer.
------------------------------------------
Hinton J
11
7
1