IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-168
[2022] NZHC 2789
BETWEEN
VINCENT ROSS SIEMER
Plaintiff
AND
ATTORNEY-GENERAL OF NEW ZEALAND
First Defendant
SUPREME COURT OF NEW ZEALAND
Second Defendant
On the Papers
Counsel:
Plaintiff self-represented
D Harris and R Lawrie for the Defendants
Judgment:
27 October 2022
JUDGMENT OF GWYN J
(Application to strike out)
Introduction
[1] This is an application by the Attorney-General, the first defendant, to strike out the claim by the plaintiff, Mr Siemer, for declarations and compensation for alleged breaches by the Supreme Court of New Zealand of his rights under the New Zealand Bill of Rights Act 1990 (Bill of Rights).
SIEMER v ATTORNEY-GENERAL [2022] NZHC 2789 [27 October 2022]
Procedural matters
[2] As recorded in my minute of 5 October 2022,1 by agreement of the parties I have determined the strike-out application on the basis of written submissions only.
Background to strike-out application
[3] This claim has a complicated procedural background which I set out below as necessary context to the application to strike out.
[4] Mr Siemer filed judicial review proceedings seeking an order in the nature of mandamus against a Judge of the High Court at Auckland. On 20 November 2020, the proceedings were struck out under rr 5.35B of the High Court Rules 2016 by Powell J.2
[5] Mr Siemer then filed a notice of appeal to the Court of Appeal. Security for costs on appeal was set at $14,120. Mr Siemer applied for dispensation from security for costs on appeal.
[6] The Deputy Registrar of the Court of Appeal declined to waive the security for costs requirement but reduced the amount of security to $7,060. Mr Siemer sought a review of the Deputy Registrar’s decision. On 17 May 2021, the application for review was dismissed, on the basis that the proceedings could be viewed as “frivolous, vexatious and an abuse of process of the Court”.3
First application for leave to appeal to the Supreme Court
[7] Mr Siemer sought leave to appeal the Court of Appeal’s decision to the Supreme Court. On 20 September 2021, the Supreme Court dismissed the application for leave to appeal on the basis that nothing raised by the plaintiff satisfied the criteria in s 74(2) of the Senior Courts Act 2016.4
1 Siemer v Attorney-General HC Wellington CIV-2022-485-168, 5 October 2022 (Minute of Gwyn J).
[8] On 22 September 2021, Mr Siemer applied for recall of the Supreme Court’s judgment of 20 September 2021 on the basis that the judgment did not adequately summarise his grounds for the proposed appeal. On 21 October 2021, the Supreme Court dismissed the application for recall on the basis that Mr Siemer was, in effect, wishing to argue that…
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 [2022] NZHC 2789
Case
[2022] NZHC 2789
Decision Date
CaseChat Overview and Summary
The case of Siemer v Attorney-General was an application by the Attorney-General to strike out a claim by Mr Siemer for alleged breaches by the Supreme Court of New Zealand of his rights under the New Zealand Bill of Rights Act 1990. The legal issues the court was required to decide were whether the claim was barred by judicial immunity, whether it was an abuse of process, and whether the Supreme Court should be removed as a defendant. The court found that the claim was barred by judicial immunity and was an abuse of process. The court also found that the Supreme Court should be removed as a defendant. The court granted the application to strike out the claim and ordered that the first defendant was entitled to costs on a Category 2B basis.
In arriving at this decision, the court considered the principles applicable to applications to strike out, the submissions of the parties, and relevant authorities. The court found that the claim was barred by judicial immunity because the common law in New Zealand recognises immunity from suit for judicial officers exercising judicial functions. The court also found that the claim was an abuse of process because it amounted to a collateral attack on the earlier Supreme Court decisions. The court further found that the Supreme Court should be removed as a defendant because the Attorney-General is the appropriate defendant for any Bill of Rights claims. The court struck out the claim and ordered that the first defendant was entitled to costs on a Category 2B basis. The defendant had until 10 November 2022 to file and serve any memorandum seeking costs and disbursements, and Mr Siemer had until 24 November 2022 to file and serve any memorandum as to costs in reply. The court would then deal with the question of costs on the papers.