Siemer v Attorney-General
[2022] NZCA 200
•20 May 2022 at 2 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA41/2022 [2022] NZCA 200 |
| BETWEEN | VINCENT ROSS SIEMER |
| AND | ATTORNEY-GENERAL OF |
| Court: | Gilbert and Katz JJ |
Counsel: | Applicant in person |
Judgment: | 20 May 2022 at 2 pm |
JUDGMENT OF THE COURT
The application for leave to appeal is declined.
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REASONS OF THE COURT
(Given by Gilbert J)
Mr Siemer applies for leave to appeal against an interlocutory decision of Woolford J granting permission under r 19.5 of the High Court Rules 2016 (the Rules) for a proceeding to be commenced by an originating application (the decision).[1] The proceeding is an application by the Attorney-General for a civil restraint order against Mr Siemer under s 166 of the Senior Courts Act 2016.
[1] Siemer v Attorney-General HC Auckland CIV-2021-404-1955, 3 November 2021.
Proceedings in the High Court are normally commenced by filing a statement of claim. However, consistent with the overall objective of the Rules to secure the just, speedy and inexpensive determination of any proceeding or interlocutory application,[2] rr 19.2 to 19.4 provide that various proceedings must be commenced by originating application. These include applications made pursuant to various specified enactments. Section 166 of the Senior Courts Act is not one of those listed. However, r 19.5 provides that the court may permit any proceeding not mentioned in rr 19.2 to 19.4 to be commenced by originating application if it is in the interests of justice to do so. The Judge was plainly satisfied of this in making the decision.
[2]High Court Rules 2016, r 1.2.
Mr Siemer applied to the High Court for leave to appeal against the decision. The Judge declined leave on 17 December 2021.[3] He considered the application for leave was without merit, adding:
[12] I remain of the view that an originating application is the preferable means of issuing proceedings. That is because the statutory test requiring determination is straightforward. This proceeding concerns the narrow question of whether at least two proceedings are totally without merit and any response is limited to whether or not the proceedings in question were not totally without merit. The pleadings are straightforward. Discovery is not required. Cross‑examination is not required, and multiple parties are not involved.
[3]Attorney-General v Siemer HC Auckland CIV-2021-404-001955, Minute of Woolford J dated 17 December 2021.
Mr Siemer contends that the decision to permit the proceeding to be commenced by originating application is unprecedented and contrary to well‑established procedures in all previous such litigation. He says the decision was made without giving any reasons and no legal authority was relied on. Accordingly, he says, it is arguable the Judge did not turn his mind to the difference between a pleading and an application. He complains that proceeding in this unprecedented form provides no notice as to the specific allegations and therefore defeats the interests of justice and the fundamental importance of notice to any functioning court. He argues that the decision creates an unsafe precedent for future cases.
Mr Siemer submits that it is in the interests of justice that his appeal be heard prior to the substantive fixture. This is because he is entitled to due process, which he contends he would otherwise be denied. In those circumstances, he argues that any trial will be a nullity and any decision will inevitably be overturned on appeal necessitating a second, “proper” trial. This would be wasteful of the parties’ and the courts’ resources.
Leave to appeal against an interlocutory decision should not be granted unless the proposed appeal raises some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the costs and delay of the appeal and the lack of general or precedential value.[4]
[4]Greendrake v District Court of New Zealand [2020] NZCA 122.
We are not persuaded that the high threshold to justify the grant of leave to appeal against this interlocutory decision has been reached.
First, we do not consider it is seriously arguable that an originating application is generally an unsuitable procedure where an order under s 166 of the Senior Courts Act is sought, nor does there appear to be any reason why it is unsuitable in this case. Because the grounds for making such an order are limited and prescribed by statute, these can conveniently be set out in an originating application with appropriate particularity. These types of application are readily distinguishable from the normal run of cases where a statement of claim is necessary to set out the material elements of each cause of action the plaintiff wishes to pursue.
Secondly, the High Court has broad powers to ensure that any originating application is dealt with in a procedurally fair manner, including by insisting that proper particulars are provided to ensure the respondent (and the Court) has fair notice of the case he or she is required to meet. In short, we consider the issue Mr Siemer wishes to raise on appeal, namely that the originating application procedure “provides no notice as to the specific allegations” and therefore “defeats the interests of justice”, is not capable of bona fide and serious argument.
Thirdly, it follows that we do not accept it is seriously arguable that the adoption of the originating application procedure will inevitably result in a denial of due process such that the appeal should be heard before the substantive proceeding. Any unfairness in the procedure ultimately followed can be addressed in the context of an appeal from the substantive judgment.
We do not consider the costs and delay of the proposed appeal can be justified. We are satisfied that the interests of justice require us to decline the application for leave to appeal.
Result
The application for leave to appeal is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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