Siemer v Attorney-General - [2022] NZCA 26

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA628/2020
[2022] NZCA 26

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

Hearing:	20 October 2021
Court:	Gilbert, Courtney and Goddard JJ
Counsel:	Appellant in person A M Powell for Respondent
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…

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 26
Case: [2022] NZCA 26
Decision Date: 25 February 2022 at 2 pm

CaseChat Overview and Summary

In Siemer v Attorney-General, the dispute involved Mr Siemer challenging the jurisdiction of a High Court Judge to review another High Court Judge's decision. The case was heard by the New Zealand Court of Appeal, which was tasked with determining whether the lower court's decision was correct and if it complied with the principles of natural justice. Mr Siemer appealed against the decision of van Bohemen J, who had dismissed his application to recall a previous judgment and struck out his proceeding without a hearing. The central legal issues before the Court of Appeal were whether van Bohemen J had the authority to review another High Court Judge's decision, and if his actions in denying Mr Siemer a hearing and striking out the proceeding complied with the principles of natural justice.

The Court of Appeal held that a High Court Judge does not have jurisdiction to review the judicial decisions of another High Court Judge. This principle was affirmed, and it was noted that Mr Siemer's application to recall the judgment was properly declined by van Bohemen J. However, the Court found that van Bohemen J's actions in striking out the proceeding without a hearing and without consulting the parties constituted a breach of natural justice. The Court emphasised the fundamental right of parties to a fair hearing and the need for justice to be seen to be done. The amendment to the draft judgment, adding the word "judicial," suggested that van Bohemen J may not have fully appreciated the distinction Mr Siemer was attempting to draw. This breach of natural justice, the Court found, was significant enough to warrant allowing the appeal and remitting the matter to the High Court for a hearing before another judge.

Ultimately, the Court of Appeal allowed Mr Siemer's appeal and directed that the matter be remitted to the High Court for a hearing before another judge. Mr Siemer confirmed that he wished for the matter to be heard by the High Court, and the respondent's counsel accepted this as the appropriate course of action. The Court did not find it necessary to determine whether Downs J's decision was susceptible to judicial review, as the primary issue was the procedural fairness of van Bohemen J's actions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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] 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. 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.

Ratio Decidendi

Legal Principle Established

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