8 October 2015 (further submissions received 1 February 2016)
Court:
Wild, French and Kós JJ
Counsel:
A J Ellis for Appellant A M Powell and E J Devine for Respondent
Judgment:
4 March 2016 at 11.00 am
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BThe cross-appeal is allowed. The order made by the High Court is quashed and replaced with an order that the appellant must obtain the leave of the High Court before commencing or continuing any proceeding in the High Court or any inferior court.
Generally speaking, a person may issue civil proceedings in the courts as of right. However, if a person has persistently and without any reasonable grounds instituted vexatious legal proceedings, the High Court may make an order under s 88B of the Judicature Act 1908 preventing that person from issuing further proceedings without first obtaining the leave of the Court to do so.
On the application of the Attorney-General, the High Court (Ronald Young and Brown JJ) made such an order against Mr Siemer.[1]
Mr Siemer now appeals the decision. The Attorney-General cross-appeals some aspects of the High Court’s reasoning, including the terms of its order.
Application for recusal
Prior to the hearing of the appeal, Mr Ellis filed an application on behalf of Mr Siemer requesting Wild J recuse himself. The grounds of the recusal application were:
(a)Mr Siemer had in the past made a formal complaint against Wild J;
(b)serious allegations against Wild J were made in Mr Siemer’s website; and
(c)Wild J was too closely involved with Mr Siemer’s earlier litigation, minutes he had written being quoted by the High Court in the decision under appeal.
The objections to Wild J hearing the appeal were all without substance. It is well established that the fact a litigant has made a complaint or allegation against a judge does not warrant recusal.[2] As for Wild J’s involvement in earlier litigation, Wild J did not sit as a High Court judge in any of the proceedings issued by Mr Siemer. Out of 52 judgments of the Court of Appeal involving Mr Siemer, there are only 12 where Wild J sat either as part of a panel of three or alone. There is nothing in any of those judgments that would cause any apprehension to a fair‑minded observer in terms of the test for apparent bias in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd.[3]
Justice Wild accordingly issued a minute declining the request.[4] That prompted a renewed application…
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.
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AGLC
Siemer v Attorney-General [2016] NZCA 43
Case
[2016] NZCA 43
Decision Date
CaseChat Overview and Summary
The Court of Appeal of New Zealand heard an appeal and cross-appeal in the case of Siemer v Attorney-General, CA278/2014 [2016] NZCA 43. The primary issue before the court was whether an order made by the High Court, restricting Vincent Ross Siemer from initiating civil proceedings without leave, was justified and appropriately scoped. The High Court's order was predicated on Mr Siemer's history of vexatious litigation, primarily stemming from a dispute with Michael Stiassny, a receiver. The appeal and cross-appeal focused on the interpretation and application of Section 88B of the Judicature Act 1908, which allows the High Court to restrict individuals from instituting vexatious legal proceedings.
The court rejected Mr Siemer's arguments that the order should not apply to judicial review proceedings, that it should have an expiry date, that it failed to consider his obligation to exhaust domestic remedies, and that it breached his right to freedom of expression. The Court of Appeal also clarified that the inquiry under Section 88B is not limited to the commencement of proceedings but extends to their conduct. The court found that the High Court had erred in not conferring with counsel about the scope of the order and in failing to consider the need to protect defendants unrelated to the core dispute. Consequently, the appeal was dismissed, and the cross-appeal was allowed, with the Court of Appeal quashing the High Court's order and replacing it with a general order requiring Mr Siemer to obtain leave before commencing or continuing any proceeding in the High Court or any inferior court.