Siemer v Attorney-General
[2022] NZHC 2789
•27 October 2022
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).
2 Siemer v Auckland High Court [2020] NZHC 3072 [20 November 2020].
3 Siemer v Auckland High Court [2021] NZCA 194 [17 May 2021] at [18].
4 Siemer v Auckland High Court [2021] NZSC 120 [20 September 2021].
[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 the Supreme Court revisit its judgment and a submission of that nature does not provide a basis for recall.5
[9] On 26 October 2021, Mr Siemer again applied for recall of the Supreme Court’s judgment of 20 September 2021. On 8 November 2021, the Supreme Court dismissed the second application on the basis that nothing raised by the application provided any basis for recall of the Supreme Court’s judgment. The Supreme Court directed the Registrar to not accept any further application for recall of the judgment of 20 September 2021.6
Second application for leave to appeal
[10] On 24 September 2021, the Court of Appeal struck out Mr Siemer’s application to appeal the decision of Powell J of 20 November 2020 as an abuse of process under r 44A(1)(c) of the Court of Appeal (Civil) Rules 2005.7
[11] Mr Siemer sought leave to appeal the Court of Appeal’s judgment of 24 September 2021 to the Supreme Court. On 6 December 2021, the Supreme Court dismissed the application for leave to appeal on the basis that it was an abuse of process.8
[12] On 6 January 2022, Mr Siemer applied for recall of the Supreme Court’s judgment of 6 December 2021. On 17 February 2022, the Supreme Court dismissed the application for recall, finding that nothing advanced by the plaintiff in support of his application warranted recall of the judgment.9
5 Siemer v Auckland High Court [2021] NZSC 141 [21 October 2021].
6 Siemer v Auckland High Court [2021] NZSC 150 [8 November 2021].
7 Siemer v Auckland High Court [2021] NZCA 487 [24 September 2021].
8 Siemer v Auckland High Court [2021] NZSC 173 [6 December 2021].
9 Siemer v Auckland High Court [2022] NZSC 8 [17 February 2022].
[13] On 14 March 2022, Mr Siemer applied again for recall of the Supreme Court’s judgment of 6 December 2021. On 22 March 2022, the Supreme Court dismissed the application for recall and directed the Registrar to not accept any further applications from Mr Siemer which relate in any way to the High Court or Court of Appeal judgments referred to in the Supreme Court’s judgment of 6 December 2021, or the Supreme Court’s judgments of 6 December 2021, 17 February 2022 and 22 March 2022.
Complaints to the Office of the Judicial Conduct Commissioner
[14] Also relevant to Mr Siemer’s claim are his complaints to the Office of the Judicial Conduct Commissioner (JCC). On 21 September 2021, Mr Siemer complained to the JCC about Ellen France J, alleging that she acted with a conflict of interest and/or apparent bias. That complaint was referred to Ellen France J by the JCC for comment. Ellen France J provided comment to the JCC on 1 December 2021. On 8 December 2021, the JCC dismissed the plaintiff’s complaint, applying ss 8(2) and 16(1)(a) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (JCC Act).
[15] Mr Siemer made a further complaint to the JCC on 2 January 2022, alleging that Ellen France J’s letter materially misled the JCC in his consideration of the plaintiff’s complaint. On 13 January 2022, the JCC dismissed the complaint pursuant to s 16(1)(i) of the JCC Act.
The plaintiff’s claim
[16]In his amended statement of claim Mr Siemer seeks:
(a)Notification to Parliament by the High Court that the defendants acted contrary to law, breaching his rights under ss 27(1) and 27(3) of the Bill of Rights, by neither recording nor addressing actual judicial bias grounds raised against Ellen France J and by issuing unreasoned decisions off the public record in Mr Siemer’s claims pleaded in the statement of claim.
(b)A declaration that the Supreme Court breached Mr Siemer’s civil right to have a known judicial bias against him addressed or to allow that bias to be mentioned on the public Court record.
(c)A declaration particularising the lack of a particular remedy to known judicial bias.
(d)A declaration that the Supreme Court breached Mr Siemer’s right to justice by not providing reasoned and legally-supported decisions in matters that impacted on the plaintiff.
(e)A declaration that the Supreme Court’s refusal to give reasons in Siemer v Auckland High Court [2021] NZSC 173, Siemer v Auckland High Court [2022] NZSC 8 and Siemer v Auckland High Court SC136/2021 conflicts with “judges’ unanimous submissions to Parliament 8 December 2003, Sena v R [2019] NZSC 55 and existing law”.
(f)Compensatory damages totalling $200,000, payable by the Attorney- General.
Grounds for the strike-out application
[17] The defendants have not filed statements of defence to Mr Siemer’s claim but the Attorney-General has filed this application to strike out the proceedings on the grounds that:
(a)The statement of claim discloses no reasonably arguable cause of action against the Attorney-General because:
(i)The claim is barred by judicial immunity.
(ii)To the extent that the plaintiff brings a claim in tort, it is barred by s 6(5) of the Crown Proceedings Act 1950.
(b)The claim is an abuse of the process of the Court because:
(i)It is a collateral attack on the decisions of the Supreme Court.
(ii)It amounts to an application for judicial review, but the High Court has no jurisdiction to review decisions of the Supreme Court.
Principles applicable to applications to strike out
[18] The Court’s approach to strike-out applications is well established and was summarised by the Court of Appeal in Attorney-General v Prince & Gardner,10 and endorsed by the Supreme Court in Couch v Attorney-General.11
[19]Those principles are:
(a)Pleaded facts are assumed to be true, unless entirely speculative and without foundation.
(b)The cause of action or defence must be clearly untenable in the sense that the court can be certain that it cannot succeed.
(c)The strike-out jurisdiction is to be exercised sparingly and only in clear cases.
(d)The jurisdiction is not excluded by the need to decide difficult questions of law which may require extensive arguments.
(e)The Court should be particularly slow to strike out a claim in any developing area of the law.
[20] In Colman v Attorney-General, the Court of Appeal held that proceedings brought under the Bill of Rights are subject to an application to strike out in the same way as any other civil proceedings.12
10 Attorney-General v Prince & Gardner [1998] 1 NZLR 262 (CA) at 267.
11 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33], per Elias CJ and Anderson J.
12 Colman v Attorney-General [2013] NZCA 92 at [24].
[21]Mr Siemer accepts that those are the applicable principles.
Supreme Court as the second defendant
[22] The Supreme Court is named as the second defendant to Mr Siemer’s claim. Counsel for the Attorney-General says that is inappropriate as the Attorney-General is the appropriate defendant for any Bill of Rights claims as pleaded.13 The Supreme Court should be removed as a defendant.
[23]Mr Siemer does not oppose removal.
[24] Section 9(3) of the Judicial Review Procedure Act 2016 allows for the relevant court or tribunal to be named as a respondent in a judicial review proceeding, where the decision under review is that of a judicial officer. That provision does not apply to this claim and I accept the submission for the Attorney-General, that Mr Siemer’s claim could not be reframed as a judicial review, as judicial review does not lie against the Supreme Court.
[25] I accept that the effect of Attorney-General v Chapman is that the Attorney- General is the appropriate defendant. The High Court, as a superior court of general jurisdiction, is responsible for determining the jurisdiction and legality of the decisions and conduct of the inferior Courts and tribunals.14 The High Court has no jurisdiction to judicially review the Supreme Court.
[26]Accordingly, I direct that the Supreme Court be removed as second defendant.
Submissions for the Attorney-General
[27] Ms Harris and Ms Lawrie’s submissions for the Attorney-General argue that the common law in New Zealand recognises immunity from suit for judicial officers exercising judicial functions and that immunity provides a complete bar to Mr Siemer’s claim.15
13 Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [14].
14 Auckland District Court v Attorney-General [1993] 2 NZLR 129 (CA) at 133.
15 Nakhla v McCarthy [1978] 1 NZLR 291 (CA); Harvey v Derrick [1995] 1 NZLR 314 (CA); and
Attorney-General v Chapman, above n 13.
[28] In Attorney-General v Chapman, the Supreme Court held that the public policy reasons which underscore personal judicial immunity also justify confining Crown liability for breaches of the Bill of Rights to actions of the executive branch.16
[29] As the Attorney-General’s submissions note, Mr Siemer in this proceeding seeks both financial compensation and declaratory relief for the alleged breach of s 27 of the Bill of Rights by judges of the Supreme Court. Although Chapman itself was a case involving a claim for financial relief, the High Court has previously held, in Siemer v Attorney-General, that the principles on which the majority in Chapman based its views in relation to financial compensation regarding judicial conduct, apply equally to claims for declaratory relief.17
[30] To the extent Mr Siemer appears to be bringing a claim in tort, the law is clear that there is no actionable claim against the Attorney-General in respect of actions of judicial officers of the Supreme Court when discharging responsibilities of a judicial nature. Section 6(5) of the Crown Proceedings Act bars any allegations of vicarious liability against the Attorney-General.
[31] The Attorney-General says this claim amounts to a collateral attack on the earlier Supreme Court decisions and is therefore an abuse of process. Mr Siemer’s claim is an attempt to relitigate prior, final decisions of the Supreme Court and to have this Court declare that those decisions breached his rights under the Bill of Rights.
[32] Finally, the Attorney-General’s submissions observe that the claim is tantamount to an application for a judicial review, in the sense that it asks the High Court to review and rule on the validity of decisions of the Supreme Court. The High Court cannot review decisions of the Court of Appeal or Supreme Court.18
16 Attorney-General v Chapman, above n 13, at [204].
17 Siemer v Attorney-General [2013] NZHC 1111 at [50].
18 Auckland District Court v Attorney-General, above n 14, at 133; and Rabson v Attorney-General
[2013] NZHC 1018 at [14].
Mr Siemer’s submissions
[33] In Mr Siemer’s written submissions he raises issues arising from a general order imposed on him on 4 March 2016, under s 88B of the Judicature Act 1908. The order restricted him from commencing any proceeding in the High Court without leave of the Court. Mr Siemer is critical of ss 166-169 of the Senior Courts Act, which replaced s 88B of the Judicature Act with a new regime, providing for the High Court to be able to issue three progressively more extensive orders restricting a person from continuing or commencing civil proceedings. Mr Siemer says those provisions give Judges extra-judicial powers of prosecution, which are covered by judicial immunity. That is not an issue that is pleaded in Mr Siemer’s amended statement of claim and therefore I do not address it in this judgment.
[34] In relation to what is pleaded, Mr Siemer says that the strike-out principles are not satisfied in this case, focussing on his underlying submission “that a Judge with an accepted conflict of interest and bias improperly sat or failed to disclose the nature and extent of the bias to the Plaintiff”.
[35] Mr Siemer submits that the majority decision in Attorney-General v Chapman, in relation to compensatory and declaratory remedies, was in effect contingent on the Court’s observation that the Supreme Court and the Office of the Judicial Conduct Commissioner would now provide new remedies to civil rights abuses committed by judges.19 However, Mr Siemer says that his attempts to engage each of those bodies was ineffective because “neither confronted the civil rights issues put to them”. Therefore, implicitly, compensation and declaratory remedies should still be available to him.
[36] Mr Siemer also submits that Chapman is no longer good law in New Zealand, in light of the decision of the United Nations Human Rights Committee (Committee) in Thompson v New Zealand,20 which found an obligation on states under art 9 of the
19 Attorney-General v Chapman, above n 15, at [195].
20 Views adopted by the Committee under article 5(4) of the Optional Protocol, concerning communication No 316/2018 UN Doc CCPR/C/132/D/3162/2018 (7 June 2022) [Thompson v New Zealand].
International Covenant on Civil and Political Rights (ICCPR) to ensure the availability of compensation for unlawful arrest/detention.
[37] Mr Siemer pre-empts a response from this Court that it is bound by Chapman, by observing that we live in a world where changes in societal norms and statutory law mean that the law as stated in Chapman no longer conforms with international law, nor upholds civil rights. Mr Siemer does not accept what he calls “contrived concepts of court hierarchy” which would limit this Court’s jurisdiction to reconsider the majority’s legal reasoning and conclusions in Chapman; he invites the Court to “take a fresh look” at the lawfulness of Chapman.
[38] Mr Siemer also disputes that his claim is a collateral attack on prior Court judgments. In his submission, Chapman itself and the cases which gave rise to it, could also be characterised as “collateral attacks” on previous Court judgments.
[39] As I understand Mr Siemer’s primary submission, it is that whether judicial immunity does or should preclude claims for compensation or declaratory relief, is a developing area of the law. Overall, his claim is not so clearly untenable in the sense required to strike it out.
Discussion
[40] Mr Siemer relies primarily on the decision of the UN Human Rights Committee in Thompson v New Zealand,21 to assert that Chapman is no longer good law in New Zealand.
[41] Some discussion of both cases is necessary to provide context to Mr Siemer’s submission.
[42] Chapman arose in the context of the procedures adopted by the Court of Appeal in disposing of certain criminal appeals on the papers after the Registrar had declined the appellants’ applications for legal aid in a process involving consultation with the Judges. Those procedures were held to be unlawful by the Privy Council in R v Taito.22
21 Thompson v New Zealand, above n 20.
22 R v Taito [2002] UKPC 15, [2003] 3 NZLR 577.
In Chapman the majority of the Court held that the High Court did not have jurisdiction to hear and determine a claim made against the Crown for public law compensation for alleged breaches by the judiciary of ss 25(h) and 27(1) of the Bill of Rights, occurring in the course of determining the respondent’s legal aid application and his appeal against conviction.23 The principal issue for determination by the Supreme Court in Chapman was whether there was state liability for actions of Judges that resulted in breaches of the Bill of Rights.
[43] The majority judgment in Chapman, delivered by McGrath and William Young JJ:24
(a)Confirmed the breadth of common law judicial immunity in respect of actions taken in the bona fide discharge of judicial responsibilities.
(b)Stated that the principle of judicial immunity means that there could be no question of the Crown being vicariously liable for actions of the Judges acting in their judicial capacity (s 6(5) of the Crown Proceedings Act) and emphasised that the judiciary are not employees or agents of the Crown.
(c)Concluded that the principles supporting judicial immunity are also applicable to claims against the State for judicial breaches of the Bill of Rights. To allow compensation claims for judicial breaches of the Bill of Rights would be “as inimical to judicial independence as permitting claims to be advanced against judges personally”.25
(d)Stated that the main reason for not extending the right to claim damages for breach of the Bill of Rights to the judicial branch was that it was unnecessary under the New Zealand court structure to provide financial remedies for such breaches. The Court said there was other “remedial protection” such as the ex-gratia compensation scheme where a person has served all or part of a sentence of imprisonment before ethe
23 Attorney-General v Chapman, above n 13, at [209].
24 As summarised in Thompson v Attorney-General [2016] NZCA 215, [2016] 3 NZLR 206 at [72].
25 Attorney-General v Chapman, above n 13, at [192].
conviction is quashed on appeal. Other relevant considerations mentioned included the establishment of the Supreme Court and consequent greater availability of further appellate review, enactment of the Judicial Conduct Commissioner and Judicial Conduct Panel Act and the availability of criminal sanctions for the corrupt exercise of judicial power.26
[44] Thompson was a claim brought by Camille Thompson. Ms Thompson failed to appear in the Wellington District on a day when an application by a probation officer for cancellation of a sentence of community work previously imposed on her was called. Unbeknown to the Judge, the application for cancellation of a sentence had previously been dealt with and the sentence cancelled. The Judge issued a warrant for Ms Thompson’s arrest which was executed by the Police. Ms Thompson was detained for over 15 hours before she was brought before the Court, at which time the duty solicitor successfully applied for her release. Ms Thompson brought four claims in tort, alleging false imprisonment, breach of statutory duty, negligence and “systemic negligence”. She also brought a claim alleging breach of her rights under s 22 of the Bill of Rights not to be arbitrarily arrested or detained.
[45] Ms Thompson’s claims were made against the Attorney-General on the basis of alleged vicarious responsibility for the omission of a Deputy Registrar of the District Court to note the cancellation of the sentence on the Court’s file. There was no claim against the Attorney-General for breaches of the Bill of Rights as a result of judicial error.
[46] In the Court of Appeal, the principal question was whether the failure by employees of the Ministry of Justice (the Registry staff) to update the Case Management System to reflect the first Judge’s order and to remove the cancellation application from the list of cases to be called before the second Judge, was part of a judicial process and therefore within the ambit of s 6(5) of the Crown Proceedings Act, which prevents any proceedings against the Crown in tort in connection with the execution of judicial process.
26 At [194]-[195].
[47] The Court of Appeal concluded that, although they doubted that the omitted steps could themselves be considered as responsibilities of a judicial nature, “they clearly fall within the ambit of responsibilities ‘in connection with the execution of judicial process’”.27
[48] The Court of Appeal also addressed the Supreme Court’s decision in Chapman. Counsel for Ms Thompson had argued that the ratio of Chapman was limited to breaches of ss 25 and 27 of the Bill of Rights, because on the facts of Thompson there was no appellate remedy resulting from the issue of a warrant to arrest. Counsel argued that it would be inconsistent with New Zealand’s adoption of art 9 of the ICCPR without reservation, and the approach taken to the relevance of international covenants to which New Zealand is a signatory in cases such as Tavita v Minister of Immigration.28
[49] The Court of Appeal held that Ms Thompson’s arrest and detention were arbitrary, occurring without lawful authority and, in essence, by mistake.29 The Court concluded there was no basis on which the decision in Chapman could properly be distinguished and dismissed the appeal.30
[50] Ms Thompson sought leave to appeal the Court of Appeal’s decision in Thompson to the Supreme Court. The application for leave argued that the Court of Appeal was wrong to find that Attorney-General v Chapman applied on the facts of the Thompson case. The application was dismissed.31 The Supreme Court accepted that the scope of Chapman may be a matter of public importance,32 but did not see the leave application before it as an appropriate vehicle for exploring the point. The Court said:33
Most of the reasoning of the majority in Chapman was applicable to breaches of the Bill of Rights generally, rather than specific to ss 25 and 27. We do not consider there is sufficient likelihood that the arguments for distinguishing Chapman would be accepted to justify the granting of leave. Nor do we see
27 Thompson v Attorney-General, above n 24, at [39].
28 Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA) at 260 and 266.
29 Thompson v Attorney-General, above n 24, at [66] and [68].
30 At [74].
31 Thompson v Attorney-General [2016] NZSC 134.
32 At [10].
33 At [10].
any proper basis for revisiting Chapman, a relatively recent decision of this Court.
[51] Ms Thompson then brought a complaint to the United Nations Human Rights Committee in Thompson v New Zealand.34 The Committee found that art 9(5) of the ICCPR imposed an obligation on states to establish a legal framework within which compensation to victims of unlawful arrest/detention would be available as of right, not as a matter of grace. This does not have to be a specific procedure, so long as it is effective.35 The Committee disagreed with the submission advanced by the State Party (the New Zealand government) that allowing for compensation for breaches by the judiciary of the right not to be arbitrarily arrested and/or detained (under s 22 of the Bill of Rights) would undermine judicial independence. The Committee said that making provision for compensation was about addressing the harm caused, not ascribing culpability to the (judicial) actors for causing the harm. Rather than undermining judicial independence, an effective provision for compensation would strengthen accountability and trust in the judiciary.36
[52] Under New Zealand law international treaties such as the ICCPR do not become directly enforceable in New Zealand upon ratification; they take effect only insofar as they are incorporated into New Zealand domestic legislation.37 The long title to the Bill of Rights clarifies that the Act is “to affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights”.
[53] While not binding, decisions of the Human Rights Committee are of considerable persuasive authority,38 and the Court should prefer an interpretation consistent with New Zealand’s international obligations39 and the Committee’s jurisprudence.40
34 Thompson v New Zealand, above n 20.
35 At 7.3.
36 At 7.5-7.6.
37 Ashby v Minister of Immigration [1981] 1 NZLR 222 (CA); Tavita v Minister of Immigration, above n 28; and Zaoui v Attorney-General (No 2) [2005] NZSC 38, [2006] 1 NZLR 289.
38 R v Goodwin (No 2) [1993] 2 NZLR 390 (CA).
39 New Zealand Air line Pilots’ Association Inc v Attorney-General [1997] 3 NZLR 257 (CA) at 289;
Takamore v Clarke [2011] NZCA 587, [2012] 1 NZLR 573 at [241].
40 R v Goodwin (No 2), above n 38.
[54] I note that, while the Committee recites Ms Johnson’s submission that the majority decision in Chapman was wrong and inconsistent with art 9(1) of the ICCPR, in its reasoning the Committee does not refer to Chapman. In addition, Thompson was specifically concerned with s 22 of the Bill of Rights and art 9(1) of the ICCPR, whereas Chapman was more generally addressing the question of whether Bill of Rights compensation should apply for judicial breaches of the Bill of Rights. Nevertheless, although the Committee does not directly address Chapman, and the complaint in Thompson was more narrowly framed than the issue in Chapman, it is correct to say that the Committee’s communication is inconsistent with the majority opinion in Chapman on this point.41
[55] Ultimately, whether Chapman should be revisited in light of the Committee’s communication in Thompson is a matter for the Supreme Court. As noted above, the Supreme Court declined leave to appeal the Court of Appeal’s decision in Thompson.
Is the proceeding a collateral attack on the Supreme Court’s decisions?
[56] In addition to the difficulty posed for Mr Siemer’s claim by the decision in Chapman, his claim is, as the Attorney-General argues, an attempt to relitigate prior, final decisions of the Supreme Court and to have this Court declare that those decisions breached his Bill of Rights rights. As the High Court has previously held,42 if the High Court were to hear and determine proceedings seeking declarations under the Bill of Rights that certain decisions of the Court of Appeal and the Supreme Court breach rights to justice, that would necessarily involve an assessment of the merits of the judgments and decisions in dispute. The result could impugn those decisions. The High Court does not have jurisdiction to declare that decisions of the Supreme Court breached Mr Siemer’s rights affirmed in the Bill of Rights.
[57] For completeness, to the extent that Mr Siemer’s claim is a de facto judicial review application, I reiterate that the High Court cannot review decisions of the Court of Appeal and Supreme Court.43
41 See, Thompson v New Zealand, above n 20, at 7.4-7.5 and 9.
42 Rabson v Attorney-General, above n 18, at [14].
43 See authorities at n 27 above.
Result
[58] Applying the principles set out above,44 and for the reasons I have discussed, the proceeding is struck out.
Costs
[59]The first defendant is entitled to costs on a Category 2B basis.
[60] The defendant has until 10 November 2022 to file and serve any memorandum seeking costs and disbursements. Mr Siemer has until 24 November 2022 to file and serve any memorandum as to costs in reply. I will then deal with the question of costs on the papers.
Gwyn J
Solicitors:
Crown Law, Wellington
Copy to:
Mr Siemer, Orewa
44 Noted at [19] above.
17
0