Siemer v Attorney-General - [2013] NZHC 1111

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-7385 [2013] NZHC 1111

IN THE MATTER OF an application under the New Zealand Bill of Rights Act 1990 for declaratory relief

BETWEEN VINCENT ROSS SIEMER Plaintiff

ANDATTORNEY-GENERAL Defendant

Hearing: 2 May 2013

Appearances: Plaintiff in Person
PJ Gunn for Defendant

Judgment: 16 May 2013

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 16 May 2013 at 9:15 am
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

V Siemer, 27 Clansman Tce, Gulf Harbour: vsiemer@hotmail.com
PJ Gunn, Crown Law, Wellington: peter.gunn@crownlaw.govt.nz

SIEMER V ATTORNEY-GENERAL HC AK CIV-2012-404-7385 [16 May 2013]

Introduction

[1] The Attorney-General, the defendant in this proceeding, has applied to strike out the claim by the plaintiff, Mr Siemer, for declarations related to alleged breaches of his rights under the New Zealand Bill of Rights Act 1990 (“NZBORA”) by Judges of the Supreme Court.

Recusal application by plaintiff

[2] At the beginning of the hearing, Mr Siemer requested that I disqualify myself from dealing with the application because I had demonstrated bias against him in the handling of cases in which he had appeared to date. He asserted that I was the subject of seven active complaints by him to the Judicial Conduct Commissioner; that my rulings in cases in which he was involved were the subject of four current appeals to the Court of Appeal; and that he had included on a website managed by him “data” of my past which included “very questionable legal behaviour”. He argued that an informed and impartial lay observer would not only conclude that I could not be impartial in respect of him in these proceedings, but that an observer would likely question my judgment to preside in such circumstances.

[3] In support of these allegations and the proposition that I should recuse myself on the grounds of apprehended bias, Mr Siemer cited authorities suggesting that I had failed in my duty to assist him as an unrepresented litigant and that I had placed myself in a position where the natural tendency for me as a judge would be to “seek vengeance” against him for seeking my disqualification.

[4] Mr Siemer referred to the judgment of the Supreme Court in Saxmere Company Limited v Wool Board Disestablishment Company Ltd1 and to the Bangalore Principles of Judicial Conduct as discussed in Orlov v New Zealand Law
Society.2 He also relied on statements by the United Nations Human Rights

1 Saxmere Company Limited v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35 (SC).
2 Orlov v New Zealand Law Society [2013] 1 NZLR 390.

Committee, the European Court of Human Rights, the Supreme Court of India, the

International Commission of Jurists and others.

Recusal principles

[5] In Saxmere, the Supreme Court confirmed the view of the New Zealand courts that the test for disqualification of a Judge on the grounds of apparent bias was whether a fair-minded lay observer might reasonably…

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.

Keep reading for free

Create a free CaseChat account to read Siemer v Attorney-General and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] NZHC 1111
Decision Date: 16 May 2013

CaseChat Overview and Summary

In Siemer v Attorney-General, the plaintiff, Mr Siemer, sought declarations related to alleged breaches of his rights under the New Zealand Bill of Rights Act 1990 by Judges of the Supreme Court. The Attorney-General applied to strike out the claim, arguing that it was frivolous and vexatious, and that it had no reasonable arguable cause of action. The court considered the principles applicable to a strike-out application and the arguments presented by both parties. The court found that the decision of the Supreme Court in Attorney-General v Chapman provided a complete bar to the plaintiff's claim, as the principles upon which it was founded had equal application to claims for declaratory relief. The proceeding was considered a collateral attack on the Supreme Court's decisions, and the court held that the proceeding was an abuse of process. Consequently, the proceeding was struck out, and the defendant was awarded costs.

Orders