Siemer v Attorney-General - [2018] NZHC 3406

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…

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: [2018] NZHC 3406
Decision Date: 19 December 2018

CaseChat Overview and Summary

The case of Siemer v Attorney-General involved a judicial review application by Mrs Siemer challenging the process adopted by the Ministry of Justice in dealing with complaints made by her and her husband against Clayton Luke, a Disputes Tribunal Referee. The respondents sought strike-out and restraint orders against Mrs Siemer. The legal issues were whether Mrs Siemer's statement of claim should be struck out and the proceeding dismissed, and whether a civil restraint order should be made against Mrs Siemer. The court found that three of Mrs Siemer's causes of action were not reasonably arguable, and the fourth was frivolous and an abuse of process. The court also found that Mrs Siemer had brought at least two proceedings that were totally without merit, and an extended civil restraint order should be made against her for three years. The court granted the application for an order striking out Mrs Siemer's statement of claim, an order dismissing the entire proceeding, and an extended order prohibiting Mrs Siemer from commencing or continuing any proceeding in any court or tribunal concerning or relating to Siemer v Hickson for three years. The respondents were also granted costs on a 2B basis against Mrs Siemer.

Orders