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:               [email protected]

PJ Gunn, Crown Law, Wellington:  [email protected]

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 apprehend that the Judge might not bring an impartial mind to the resolution of the question the Judge is required  to  decide.    As  Blanchard J  noted,  that  “principle  gives  effect  to  the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the ... [court] be

independent and impartial”.3

[6]      Further, the test is one of an apprehension of a real, not remote, possibility of bias.4   Applying the test requires, first, the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and, second, an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.5   This approach indicates that the apprehension of bias must be founded on proper grounds having a real and not fanciful connection to the possibility of bias.

[7]      Importantly, Blanchard J said6  that the lay observer must also be taken to understand three matters relating to the conduct of judges, two of which are relevant here.  The first is that a judge is expected to be independent in decision-making and has taken the judicial oath to “do right to all manner of people after the laws and usages of New Zealand without fear or favour, affection or ill will”.  Second, a judge has  an  obligation  to  sit  on  any case  allocated  to  the  judge  unless  grounds  for disqualification exist.  Judges are not entitled to pick and choose their cases, which

are randomly allocated.

3      Saxmere, above n1 at [3], adopting the view of the High Court of Australia in Ebner v Official

Trustee in Bankruptcy (2000) 205 CLR 337 at [6].

4 Ibid, at [4].

5      Ebner v Official Trustee in Bankruptcy, above n 3 at [8], cited by Blanchard J in Saxmere at [4].

6 At [8].

[8]      The  other  members  of  the  Court  in  Saxmere  agreed  with  this  analysis. Tipping J  said7   that  in  considering  the  appearance  of  justice  being  done,  “the question is not how the matter appears to a professional judge, but how it would appear to an ordinary sensible member of the public with appropriate knowledge of all the relevant circumstances including the general workings of the legal system”.

Discussion and decision on recusal

[9]      In making his application for recusal, Mr Siemer is not assisted by reference to self-generated, defamatory allegations about my conduct made on a website managed by him, or by numerous complaints made by him to the Judicial Conduct Commissioner about decisions made in the exercise of my judicial duties in relation to any legal proceedings.8   Judges who have sworn to uphold the rule of law are not intimidated or otherwise influenced by such matters.  To take them into account on a recusal application would be to place into the hands of an aggrieved litigant the power  to  force  the  disqualification  of  any judge,  no  matter  how  outrageous  or

unreasoned the allegations or complaints.

[10]     As the principles articulated by the Supreme Court in Saxmere make clear, apprehended bias is to be assessed by reference to the view of the intelligent lay observer reasonably informed about the workings of the courts, not by reference to the views of the particular litigant who, as Mr Gunn submitted, is the least objective observer of all.

[11]     The Court of Appeal said in Muir v Commissioner of Inland Revenue9 that it knew of no common law jurisdiction which accepts that a judge’s adverse rulings are disqualifying per se. The problem is rather whether an aggrieved litigant should be permitted to seek recusal on the basis of rulings that are either so patently erroneous or so disproportionate as to suggest that something untoward must have motivated

them. Even a statistical approach cannot be applied.

7 At [38].

8      Such decisions are not within the functions of the Commissioner: Judicial Conduct

Commissioner and Judicial Conduct Panel Act 2004, s 8(2).

9      Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495 (CA) at [101].

[12]     While it has to be accepted that there are occasions when a judge’s prior rulings might lead a reasonable person to question whether he or she would remain impartial in any subsequent proceedings, that could be relevant to the question of judicial bias only in the rarest of circumstances.10   There is huge potential for abuse if recusal applications were permitted to be predicated on a party’s subjective perceptions regarding a judge’s ruling.11

[13]    Properly analysed, Mr Siemer’s real complaint is that arguments he has presented to me in other proceedings have failed, as is demonstrated by his submission to me that I had demonstrated a propensity in the past to reject his valid legal arguments.

[14]     Applying Saxmere principles, I concluded that no ground for recusal was made out.

Background to strike-out application

[15]     To understand the submitted grounds for the strike-out, it is necessary to know something of the complex procedural background.

[16]     On 30 March 2011, the Supreme Court granted Mr Siemer leave to appeal against a decision of the Court of Appeal. The ground approved12 was:

whether  leave  of  the  Court  of Appeal  was  required  under  s 67  of  the Judicature Act for the applicant’s appeal against security for costs fixed by order of the High Court or whether appeal was available as of right under s 66 of the Judicature Act.

[17]     On 8 November 2011, the Supreme Court issued a judgment (“the principal judgment”) dismissing the appeal.13    By a majority, the Supreme Court upheld the argument for Mr Siemer on the approved ground of appeal, determining that s 66 of the  Judicature  Act 1908  conferred  an  appeal  as  of  right.    In  written  and  oral

submissions to the Supreme Court, however, the respondents had raised another

10 Ibid, at [98].

11 Ibid, at [100].

12     Supreme Court Rules 2004, r 29.

13     Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 319.

procedural issue which was relevant to the ultimate disposition of the appeal by the Court of Appeal.  The issue was whether, before Mr Siemer had actually brought any appeal, his right to do so had ceased because, by operation of s 74(2) of the District Courts Act 1947, the underlying appeal from the District Court to the High Court was deemed to have been abandoned.  The Supreme Court concluded unanimously that the respondents were correct that no appeal to the Court of Appeal had been validly  instituted,  and  the  appeal  to  the  Supreme  Court  was  dismissed  on  that

ground.14

[18]     On 5 December 2011, Mr Siemer applied to the Supreme Court for a recall of the principal judgment.   His ground was that, because he had succeeded in establishing that there was a right of appeal under s 66 of the Judicature Act, the Court’s order dismissing the appeal was not an accurate disposition of it.

[19]     On 9 December 2011, the Supreme Court issued a judgment (“the first recall judgment”)15 dismissing the application to recall the principal judgment.  The Court held that it had had all the relevant factual material before it and had heard argument on the point under s 74(2) of the District Courts Act before deciding that the appeal should be dismissed.   The Court directed that costs in respect of the substantive appeal and the recall application should lie where they fell.

[20]     On 14 December 2011, Mr Siemer filed an application for recall of the first recall  judgment  which  was,  effectively,  a  second  application  for  recall  of  the principal judgment.  He alleged that the first recall judgment contained an admission of a fundamental failure of due process in the substantive appeal, in that the appeal had been dismissed on an unapproved ground, which was not a live issue before the Court, and was contrary to how the Court of Appeal had dealt with the appeal against the security for costs order in the High Court.

[21]     When the second application for recall was filed in the Supreme Court, four

Judges of the Court signed a handwritten Minute (“the second recall judgment”) on

the cover of the application in the following terms:

14     Ibid, at [35]-[41], [59].

15     Siemer v Heron [2011] NZSC 151.

There is no merit in this application. Application dismissed.

[Signatures of Elias CJ and Blanchard, Tipping and McGrath JJ]

[22]     In connection with these matters, Mr Siemer lodged several complaints under the  Judicial  Conduct  Commissioner  and  Judicial  Conduct  Panel Act 2004  about some of the Judges of the Supreme Court.   The Judicial Conduct Commissioner dismissed all of the complaints and Mr Siemer then applied for judicial review of the three decisions by the Commissioner dismissing the complaints.  The defendants in the judicial review proceedings were the Commissioner and five of the Judges of the Supreme  Court.     On  27 June 2012,  summary  judgment  was  entered  for  the

defendants, dismissing the applications for review and refusing the relief sought.16

[23]     Mr Siemer appealed against that judgment.   On 5 September 2012, Wild J upheld a decision of the Registrar of the Court of Appeal declining to dispense with security of costs, fixed at $5,880, in respect of the appeal.17   Mr Siemer applied for leave to appeal the decision of Wild J to the Supreme Court.  On 1 November 2012, the application for leave to appeal was dismissed.18   Mr Siemer applied to recall that judgment; that application was dismissed on 9 November 2012.19    Mr Siemer then applied, on 21 November 2012, to recall both the 1 November 2012 leave judgment and the 9 November 2012 judgment dismissing the second application for recall.

[24]     On  22 November 2012,  Chambers J,  on  behalf  of  the  Supreme  Court, dismissed  the  21 November 2012  application  by  noting  on  the  cover  of  the application in handwriting:

22 November 2011 [sic] Dismissed as an abuse of process. [Signature]

Robert Chambers

16     Siemer v Judicial Conduct Commissioner [2012] NZHC 1481.

17     Siemer v Judicial Conduct Commissioner, CA422/2012, Decision of Wild J: Review of

Registrar’s Decision Declining to Dispense with Security for Costs, 5 September 2012.

18     Siemer v Judicial Conduct Commissioner [2012] NZSC 92.

19     Siemer v Judicial Conduct Commissioner [2012] NZSC 95.

The pleaded claim in this proceeding

[25]     In the statement of claim, Mr Siemer seeks:

(a)      A declaration that the dismissal of his appeal in the principal judgment  violated  his  rights  under  ss 27(1),  27(2),  and/or s 27(3) of the NZBORA “by relying upon materially misstated appeal grounds to deny leave and the underlying judicial review, and then refusing to correct the obvious misstatements of material fact when these material errors were raised in the recall application”.

(b)A declaration  that  the  Supreme  Court  breached  his  rights under s 27 NZBORA when they unanimously dismissed his appeal, in the principal judgment, “on an unapproved ground, without notice and without the right to be heard” where he had been successful “on the only approved ground”.

(c)      A declaration from the High Court that the Supreme Court’s treatment of his recall application of 21 November 2012 was a breach of his rights in law.

(d)      Alternatively,   “directions   clarifying   the   use   of   private, unrecorded, unreasoned and handwritten notations on court filings by judicial officers to dispense with proceedings.”

The grounds for the strike-out application

[26]     The Attorney-General has not filed a statement of defence to Mr Siemer’s claim  for  declarations  but  has  filed  the  present  application  to  strike  out  the proceeding on the grounds that:

(a)      in light of the judgment of the Supreme Court in Attorney-General v Chapman,20  the statement of claim discloses no reasonably arguable cause of action against the Attorney-General; and

(b)the statement of claim is frivolous, vexatious and otherwise an abuse of the process of the Court.

[27]     The Attorney-General seeks an award of costs.

The applicable principles on a strike-out application

[28]     The following well-established principles on the approach taken by the Court to an application to strike out a claim before trial arise from the summary of the principles  by  the  Court  of Appeal  in  Attorney-General  v  Prince,21   which  were

endorsed by the Supreme Court in Couch v Attorney-General.22  The principles are:

(a)      In general, pleaded facts, whether or not admitted, are assumed to be true.  This principle does not extend to pleaded allegations which are entirely speculative and without foundation.  The court is not obliged to consider allegations in a pleading uncritically.

(b)The cause of action must be clearly untenable in the sense that the court can be certain it cannot succeed.

(c)      The jurisdiction is to be exercised sparingly, and only in clear cases where the Court is satisfied it has the requisite material.

(d)The  jurisdiction  is  not  excluded  by  the  need  to  decide  difficult questions of law, requiring extensive argument.

(e)      The Court should be particularly slow to strike out a claim in any developing area of the law.

20     Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462.

21     Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.

22     Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33] per Elias CJ and

Anderson J.

[29]     I understand Mr Siemer to accept that those are the principles to be applied in this case.

The Attorney-General’s submissions

[30]     Mr Gunn relies first on a submission that the judgment of the Supreme Court in Chapman23  provides a complete bar to the plaintiff’s claim.   In that case, the Supreme Court held by a majority24  that the Court did not have jurisdiction to hear and determine a claim for public law compensation for alleged breaches by the judiciary of ss 25 and 27 of the NZBORA.

[31]     Mr Chapman had been convicted of sexual offending against a nine-year-old boy and was sentenced to six years’ imprisonment.   He appealed to the Court of Appeal but legal aid was declined and the appeal was dismissed without an oral hearing.  The procedures applied to Mr Chapman’s appeal were later found by the Privy Council to have been unlawful and in breach of the NZBORA.  Mr Chapman was granted a new appeal which succeeded, with the result that his conviction was quashed and he was eventually discharged.   The matter before the Supreme Court arose because Mr Chapman then took action against the Attorney-General claiming public law compensation for the breaches of his  rights by the Judges  who had dismissed his initial appeal.

[32]     In the Supreme Court, the public policy reasons which supported personal judicial immunity were held by the majority of the Court to justify also confining Crown liability for governmental breaches of the NZBORA to actions of the Executive branch.  It was held that the public law cause of action upheld in Baigent’s Case25   was  not  appropriately  extended  to  the  judicial  branch  in  view  of  the importance of judicial immunity, which promoted and protected judicial independence; the desirability of finality in litigation; and the existence of effective

remedies, including adequate rights of appeal, rehearing and review.

23     Above n 20.

24     In this judgment, unless otherwise indicated, I refer to McGrath and William Young JJ, with whom Gault J agreed in a separate judgment, as ‘the majority’ and to their joint reasons as ‘the majority judgment’.

25     Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667 (CA).

[33]     Mr Gunn also submits that the statement of claim is frivolous, vexatious and otherwise an abuse of the process of the Court, because the matters the plaintiff relies upon as founding his claim for relief were advanced before, and decided by, the Supreme Court.  He argues that the claim, therefore, is an illegitimate collateral attack on decisions of the Supreme Court.

Mr Siemer’s argument

[34]     Mr Siemer argues that the Judges of the Supreme Court violated his rights under s 27 of the NZBORA by dismissing his appeal on an unapproved ground.  He also says that the dismissal of the 21 November 2012 recall application violated his rights and those of the public because the judgment was not pronounced publicly with supporting reasons.  He describes the treatment his claims have received from the courts as failing minimal standards of due process and natural justice guaranteed to him under the NZBORA.  Further, he asserts that the courts have acted on false grounds in dismissing his applications, and that he has been deprived of a right to judicially review the dismissal of his complaints by the Judicial Conduct Commissioner.

[35]     Mr Siemer argues that the Supreme Court’s rejection, in Attorney-General v Chapman, of a right to claim damages for breaches of Bill of Rights Act rights by members of the judiciary was founded in part upon the availability of other avenues for remedial protection for judicial breaches.26   First, there is the establishment of the Supreme Court and a right of appeal with leave to that Court on the grounds that it is necessary in the interests of justice to hear and determine a proposed appeal.  This

provides accessibility to appellate review of the Court of Appeal not previously available.  For that reason, there is now a much greater likelihood that judicial error in the Court of Appeal will be more speedily corrected on appeal.   Second, the creation of the Office of the Judicial Conduct Commissioner and a regime for investigating  complaints  against  judges  and  addressing  them  according  to  the

Commissioner’s view of their seriousness provides a further avenue for remedy.

26 Above n 20, at [195].

[36]     Mr Siemer argues, however, that his claim for declaratory relief in this case should be allowed to proceed because his attempts to find remedies for the alleged breaches  of duty by the Court,  by making applications  to  have Supreme Court judgments   recalled   and   by   making   complaints   to   the   Judicial   Conduct Commissioner, have been thwarted.

[37]     Mr Siemer  argues  also  that  Chapman  does  not  preclude  this  proceeding because he is not seeking financial compensation but merely seeking declarations.

Discussion

Does the decision of the Supreme Court in Attorney-General v Chapman operate as a complete bar to the plaintiff ’s claim?

[38]     The Attorney-General’s first ground relies on the proposition that the decision of the Supreme Court in Chapman did not rest solely on the fact that there was a claim for damages, but also on the principles of finality of litigation and judicial independence, and on the availability of rights of appeal, rehearing and review.  It is submitted that those principles and the views on them of the majority of the Court in Chapman are equally applicable to a claim against the government for declaratory relief.  I agree.

[39]     In Chapman, the majority referred27  to the policy justifications for judicial immunity summarised by the Law Commission in its report Crown Liability and Judicial Immunity28 as follows:

(a)       promoting the fearless pursuit of the truth;

(b)ensuring that the judicial function is fairly and efficiently exercised without improper interference;

(c)       safeguarding a fair hearing in accordance with natural justice, which should reduce the prospect of error;

27 Ibid, at [179].

28     Law Commission Crown Liability and Judicial Immunity: A Response to Baigent’s Case and

Harvey v Derrick (NZLC R37, 1997).

(d)      promoting judicial independence;

(e)      achieving finality in the litigation in accordance with the essential principle of res judicata, except insofar as the law provides for appeal or permits review (collateral challenge should not be able to avoid that principle or widen the opportunities for appeal and review); and

(f)      there exist adequate rights of appeal against, and rehearing and review of, the decision itself (as opposed to proceedings against the person taking the decision), with related powers to delay the effect of any judgment or penalty while the processes are pending.

[40]     The majority held that: 29

the specific and general reasons given [by the Law Commission] are relevant to whether a remedy of public law damages is available under the Bill of Rights Act for breaches of rights by judges acting in that capacity. In that context the desirability of achieving finality, promoting judicial independence and the availability of existing remedies for breach, including through the appellate process, are of principal importance.

[41]     As  to  the  desirability  of  finality,  the  majority  observed  that  the  law discourages relitigation by aggrieved parties of issues determined by the courts, other than by appeal.   Although in part basing that policy on the interests of the parties to litigation, the majority suggested that the strongest reason for personal

judicial immunity for judges was the need for the public to have:30

confidence in the effective functioning of the rule of law in our society ... if it is to be effective in achieving finality, an institutional immunity is also necessary, protecting the government or anyone else from bringing collateral action for breach of rights in the course of the judicial process involved, so that public confidence in the fair and effective administration of justice can be retained.

[42]     The majority also regarded the need to promote and protect judicial immunity as being of particular importance, holding that the independence of the judiciary was

essential to the proper performance of its duties and an integral part of its constitutional function.31    The Court noted, at [190], that the executive branch of government would be required to defend claims founded on allegations related to judicial conduct through the Attorney-General, as in this case.  This would “involve judges necessarily cooperating with the State in the defence of such actions.  To an outside observer, the executive government [would] appear to be defending the judge

and the judge [would] be helping the government.”

[43]     I acknowledge that the majority then went on to observe that making the Attorney-General, a member of the executive government, financially responsible for judicial actions would imply that judges were acting on behalf of the executive when exercising judicial functions.  They noted also that the liability of the executive to compensate for a judge’s constitutionally wrongful acts would be likely to bring political pressures, direct and indirect, for accountability of the judges to the executive.   The question posed by Mr Siemer’s submission is whether these considerations  have  the  same  force  where,  as  here,  the  proceeding  challenging judicial conduct does not involve a claim for a financial remedy but seeks only a declaration.

[44]     In my view, the constitutional objection to the executive branch acting as the defendant applies also where, as here, the claim is founded upon allegations that a judge or a court has acted improperly.  In the present proceeding, Mr Siemer relies upon a direct attack on the Supreme Court, alleging that it violated his NZBORA rights. These allegations, if defended, would require the Attorney-General to explain and justify the actions of the Supreme Court in dealing with the proceedings in which Mr Siemer was formerly involved. As noted above, such a requirement would threaten the independence of the judiciary from the other branches of government.

[45]     Further,  the  executive  government  is  not  the  general  guarantor  of  the judiciary in respect of claims for non-monetary relief.  As the majority in Chapman observed,32    declaratory  relief  against   the   Crown   would   be  ineffective  if  a government had no power of control over the persons or body who had acted in

breach of rights. An aggrieved litigant’s purpose in applying for declaratory relief, if the  proceeding  is  not  to  be  wholly  an  academic  exercise,  is  to  alter  rights  or perceived rights and to effect consequential action.  The point of Mr Siemer’s claims in the present case, if not to found subsequent claims by him to compensation must be, at least, to allow the prospect of further litigation in the proceedings which are the subject of his allegations, and to modify judicial conduct in the future.

[46]     Whereas the executive branch has control over Ministers or public servants against whom declaratory relief is granted, and can give effect to the consequences of the declaration, the executive branch has no ability to control the future conduct of the judiciary.   Declarations in proceedings against the judiciary could therefore be ineffective, as the majority in Chapman noted.33

[47]     There is also the inevitable prospect that, in order to defend allegations of the kind made here, albeit in the context of claims for declaratory relief, judges would have  to  give  evidence  concerning  their  conduct.    This  would  “give  rise  to  a perception that judges may come under pressure in their decision-making if they

believe that they may be questioned concerning it at a later stage.”34

[48]     The majority in Chapman held that “the extensive protection against judicial breach  afforded  by  the  justice  system  and  in  particular  the  current  appellate process”35  also justified confining the scope of Crown liability for governmental breaches of the NZBORA to actions of the executive branch.  At [195], the majority noted the extension of remedial protection for those aggrieved by judicial conduct included the establishment of the Supreme Court, and the creation of a regime for investigating complaints against judges by the enactment of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004.

[49]     Mr Siemer’s repeatedly unsuccessful attempts to persuade the Supreme Court to recall its judgment dismissing his appeal do not assist him in respect of this part of his argument.   His recall applications were dismissed on the merits by the court

which necessarily has the final say in judicial proceedings in New Zealand.  That is a

33     Ibid.

34 Ibid at [186].

consequence of the judicial hierarchy not providing unlimited rights of appeal or review.  Moreover, the dismissal of Mr Siemer’s complaints to the Judicial Conduct Commissioner, and the rejection of his attempt to obtain a judicial review of the Commissioner’s dismissal decisions, is a consequence of the lack of merit in his claims, not of any systemic failure to provide a proper remedy.

[50]     While I do not think it correct to say that Chapman in itself operates as a complete bar to  the  plaintiff’s  case,  I agree that  the principles  upon  which  the majority founded its views in relation to claims for financial compensation in respect of judicial conduct have equal application to claims for declaratory relief.

[51]     The present proceeding should be struck out on that ground.

Should the proceeding be struck out as a collateral attack on the Supreme Court’s

decisions?

[52]     These proceedings are undoubtedly a collateral attack upon decisions of the Supreme Court in dismissing Mr Siemer’s appeal and rejecting his applications to have  the  Court  recall  its  judgment.     They  were  final  decisions  in  previous proceedings made by a court of competent jurisdiction.  Mr Siemer may complain about the results of his various applications but it is simply wrong to say that he has not  been  heard.    The  present  proceeding  is  an  attempt  to  relitigate  prior  final

decisions and is an abuse of process.36

[53]     Further, the vexatious and abusive nature of this proceeding is underscored by the intemperate language used in the pleadings.  Allegations that findings of the Supreme Court were “patently false” or based on a “fictitious ground” or “falsely stated ground”, and that the Supreme Court “wantonly refused” to provide a first instance appeal to him, betray Mr Siemer’s mindset.

Result and costs

[54]   For the reasons given, and applying the acknowledged principles,37 the proceeding is struck out.

[55]     The defendant is entitled to costs calculated on a Category 2B basis.

[56]     The defendant shall have until 7 June 2013 to file any memorandum seeking costs and disbursements.  I certify for Mr Gunn’s reasonable travel expenses for the hearing.     Mr Siemer  shall  have  until  28  June  2013  to  file  and  serve  any memorandum as to costs in reply. The matter will then be dealt with on the papers.

Comment

[57]     Mr Siemer’s core complaint in this proceeding, and in almost all, if not all, of the proceedings which he has instituted in consequence of the dismissal of his appeal in the principal judgment, is that although he succeeded in his argument on the approved ground of appeal the appeal was dismissed on another ground.   It may assist Mr Siemer finally to come to terms with the outcome of the principal judgment to remind him that r 29 of the Supreme Court Rules 2004 confines the grounds that may be argued in support of an appeal to those approved in the order by which leave is given.  The rule itself does not confine the grounds upon which an appeal on an approved ground may be opposed or dismissed.

.....................................

Toogood J