Siemer v Attorney-General
[2022] NZCA 26
•25 February 2022 at 2 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA628/2020 [2022] NZCA 26 |
| BETWEEN | VINCENT ROSS SIEMER |
| AND | ATTORNEY-GENERAL OF |
| Hearing: | 20 October 2021 |
Court: | Gilbert, Courtney and Goddard JJ |
Counsel: | Appellant in person |
Judgment: | 25 February 2022 at 2 pm |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe matter is remitted to the High Court for hearing before another judge.
CWe make no order for costs.
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REASONS OF THE COURT
(Given by Gilbert J)
This is an appeal against a judgment of van Bohemen J striking out an application by Mr Siemer for judicial review of a decision of Downs J declining his application for access to a court document.[1]
Background
Application for access to court document
[1]Siemer v Attorney-General [2020] NZHC 2581 [Strike-out judgment].
On 7 October 2019, Mr Siemer applied under the Senior Courts (Access to Court Documents) Rules 2017 (the rules) for access to a document filed in the High Court by another litigant, Razdan Rafiq. The application was declined by Downs J for the brief reasons set out in his minute dated 24 October 2019.
Application for judicial review
Mr Siemer applied for judicial review of Downs J’s decision. Palmer J, who case managed the judicial review proceeding, recorded in a minute dated 14 February 2020 that the application “proceeds on the basis that administrative decisions of the High Court, usually exercised by a Registrar, are susceptible to judicial review”. This jurisdictional question was one of the primary issues raised by the application.
In accordance with a subsequent direction given by Palmer J, the parties filed a joint memorandum on 3 August 2020 proposing directions to enable the matter to be heard. These included a timetable for the exchange of written submissions and a request that the matter be set down for a two-hour hearing. Palmer J made directions accordingly on 4 August 2020 and a two-hour fixture was subsequently allocated for 1 October 2020.
The parties duly exchanged submissions in accordance with the agreed timetable and attended court on the scheduled hearing date. However, when the matter was called, van Bohemen J advised the parties that he had concluded he had no jurisdiction to review Downs J’s decision and had therefore decided to strike out the proceeding under r 15.1 of the High Court Rules 2016 without hearing from the parties. The Judge handed the parties a draft judgment explaining his reasons for taking this course. Despite his protests at the time, Mr Siemer was not permitted to be heard.
Later that day, the Judge delivered his formal judgment, which contained two amendments to the draft. The first was the addition of two paragraphs in the introductory section and the second was a modification to the wording of a later paragraph, most notably the insertion of the word “judicial” before the words “decisions of another High Court Judge”. As amended, the introductory section reads as follows (the additional paragraphs are [4] and [5]):
[1] Vincent Siemer applies to review a decision by Downs J denying Mr Siemer access to a document on the Court file in another proceeding.
[2] As set out below, I have no jurisdiction to review the decision of Downs J.
[3] Accordingly, I strike out the application in accordance with r 15.1 of the High Court Rules 2016.
[4] Because the hearing of Mr Siemer’s application was set down for today, I considered it appropriate to advise Mr Siemer in person at the hearing rather than make my decision on the papers and vacate the hearing. However, because the jurisdictional point is plain, I did not consider it appropriate to hear Mr Siemer on the point.
[5] At the hearing, I handed Mr Siemer a draft of this decision, which I have since amended and finalised.
The second amendment, which we have italicised, appears in what became [16] of the final judgment:
Jurisdiction to review decision of another High Court Judge
[16] It is well established that a High Court Judge does not have jurisdiction to review the judicial decisions of another High Court Judge.
Mr Siemer applied to have the judgment recalled, but this application was declined by van Bohemen J in a judgment delivered on 20 October 2020.[2]
Appeal
Breach of natural justice
[2]Siemer v Attorney-General [2020] NZHC 2756.
Mr Siemer appeals against the Strike-out judgment on the ground that, in pre‑determining the matter and denying him a hearing, the Judge breached his right to natural justice assured by s 27 of the New Zealand Bill of Rights Act 1990. Mr Powell, for the respondent, responsibly concedes this.
It is axiomatic that parties are entitled to a fair hearing before an impartial tribunal. The basic requirements of natural justice must be observed in all cases, even those that may appear to be hopeless. Justice must not only be done, it must be seen to be done.[3] As Kirby J said in Antoun v R:[4]
No case is judged hopeless in our courts before a party has had a reasonable opportunity, by evidence and argument, to advance its case and contentions to the independent judge.
[3]Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2010] 1 NZLR 35 (SC) at [38] and [61].
[4]Antoun v R [2006] HCA 2, (2006) 224 ALR 51 at [48]; and Jones v National Coal Board [1957] 2 QB 55 (CA), [1957] 2 All ER 155 at 161.
Palmer J directed, in accordance with a joint memorandum filed by the parties, that the proceeding be set down for a two-hour hearing following the exchange of written submissions to determine all issues, which would include whether Downs J’s decision was susceptible to judicial review. This due process ought not to have been departed from without first consulting the parties. Van Bohemen J should not have denied the parties the substantive hearing they were entitled to expect nor struck out the proceeding of his own motion without affording the parties any opportunity to be heard on that unsignalled course. We also note that the Judge did not refer to the parties’ submissions in his judgment. Mr Siemer makes the fair point that the amendment to the draft judgment by the addition of the word “judicial” indicates that the Judge may not have fully appreciated (until then) the distinction Mr Siemer was seeking to draw between decisions of a purely administrative character and other judicial decisions. Whether or not there is any merit in Mr Siemer’s claim, his right to natural justice was clearly breached in this process.
Remedy
This fundamental breach of natural justice would normally require us to allow the appeal and remit the matter to the High Court for a hearing before another judge. An exception might be where both parties prefer this Court to determine the matter. However, Mr Siemer confirmed at the hearing that he wishes to have the matter remitted to the High Court for hearing before another judge. Mr Powell accepts that this is the appropriate course in the light of our conclusion on the first issue.
Costs
As a self-represented litigant, Mr Siemer is not entitled to costs. He did not seek any award of costs or disbursements.
Result
The appeal is allowed.
The matter is remitted to the High Court for hearing before another judge.
We make no order for costs.
Solicitors:
Crown Law Office, Wellington for Respondent
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