Siemer v Attorney-General - [2022] NZCA 200

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA41/2022
[2022] NZCA 200

BETWEEN	VINCENT ROSS SIEMER Applicant
AND	ATTORNEY-GENERAL OF NEW ZEALAND Respondent

Court:	Gilbert and Katz JJ
Counsel:	Applicant in person S P Jerebine for Respondent
Judgment: (On the papers)	20 May 2022 at 2 pm

JUDGMENT OF THE COURT

The application for leave to appeal is declined.

____________________________________________________________________

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…

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.

Continue reading Siemer v Attorney-General

Details

AGLC: Siemer v Attorney-General [2022] NZCA 200
Case: [2022] NZCA 200
Decision Date: 20 May 2022 at 2 pm

CaseChat Overview and Summary

In Siemer v Attorney-General, the applicant, Vincent Ross Siemer, sought leave to appeal a decision made by Woolford J in the High Court, which allowed the Attorney-General to commence a civil restraint order application by way of an originating application rather than a statement of claim. The application was made under section 166 of the Senior Courts Act 2016. The Court of Appeal, comprising Gilbert and Katz JJ, considered the merits of Siemer's appeal against the interlocutory decision.

The primary legal issue before the Court of Appeal was whether the High Court's decision to permit the Attorney-General to commence the civil restraint order application through an originating application, rather than the conventional method of a statement of claim, was permissible under the High Court Rules 2016 and if it met the threshold for leave to appeal. The Court had to determine whether the decision was unprecedented, contrary to established procedures, and whether it raised a question of law or fact capable of serious argument.

The Court of Appeal held that the High Court's decision was not unprecedented or contrary to established procedures. It noted that the High Court Rules 2016 allowed for proceedings to be commenced by originating application if it was in the interests of justice to do so. The Court found that the issue raised by Siemer, regarding the suitability of the originating application procedure, was not capable of serious argument. The Court further held that any unfairness could be addressed in an appeal from the substantive judgment and that the costs and delay of the proposed appeal could not be justified. The Court concluded that the interests of justice required the application for leave to appeal to be declined.

The Court of Appeal declined the application for leave to appeal.

Orders