Siemer v Attorney-General

[2022] NZHC 2643

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2797

[2022] NZHC 2643

UNDER

s 11 of the Senior Courts (Access to Court Documents) Rules 2017, the Judicial Review Procedure Act 2016 and s 27(2) of the New Zealand Bill of Rights Act 1990, and the rights of review in the circumstances of these pleadings as defined by Taito v R [2002] UKPC 1.

IN THE MATTER

of judicial review and declaratory relief

against an administrative refusal to comply with a statutory request for a public court document

BETWEEN

VINCENT ROSS SIEMER

Applicant

AND

ATTORNEY-GENERAL OF NEW ZEALAND

Respondent

Hearing:

15 June 2022 (with additional material on 13 October 2022)

Appearances:

Applicant in person

A M Powell and R M McMenamin for the Respondent

Judgment:

14 October 2022

JUDGMENT OF GAULT J

This judgment was delivered by me on 14 October 2022 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

SIEMER v ATTORNEY-GENERAL OF NEW ZEALAND [2022] NZHC 2643 [14 October 2022]

[1]                 Mr Siemer applies for judicial review of a decision of a Judge of this Court refusing him access to documents on a Court file in another matter.

[2]                 One of the primary issues raised by the application is whether this Court’s judicial review jurisdiction extends to decisions of Judges of this Court.

Background

[3]                 On 7 October 2019, Mr Siemer applied to access documents on the Court file for an application by Mr Rafiq for leave to commence a proceeding. Mr Rafiq’s application for leave had been declined by Venning J in a judgment dated 29 May 2019.1

[4]                 Mr Siemer’s application was determined  by Downs  J  in  a  Minute  dated 24 October 2019.2 After recording that there were only three documents on the Court file, the Judge granted Mr Siemer access to the judgment of Venning J but declined access to the other two documents – Mr Rafiq’s proposed proceeding and his application for leave. The Judge’s reasons for declining access to those two documents were:

Venning J concluded that the proposed proceeding was frivolous and vexatious. Dissemination of related paperwork is contrary to public interest. As Venning J observed, the “proposed statement of claim is abusive and a nonsense”.

[5]                 Mr Siemer sought leave from Downs J to appeal his decision to the Court of Appeal. On 18 December 2019, Downs J declined leave to appeal.3

[6]On the same day, Mr Siemer commenced this judicial review proceeding.4

1      Rafiq v Whata J [2019] NZHC 1193. Leave was required as Mr Rafiq was subject to an order under s 88B of the Judicature Act 1908.

2      Re Rafiq, CIV-2019-404-000934.

3      Siemer v Auckland High Court [2019] NZHC 3393, [2019] 25 PRNZ 561.

4      The application for judicial review was heard by me following the Court of Appeal’s decision in

Siemer v Attorney-General [2022] NZCA 26.

Discussion

[7]                 Applications for access to documents on a Court file are governed by the Senior Courts (Access to Court Documents) Rules 2017 (the Rules). Mr Siemer made the request using the standard form provided. As indicated, he was declined access to two documents, but in his application for judicial review he seeks access to only one document, Mr Rafiq’s proposed proceeding (proposed statement of claim).

[8]                 Mr Siemer’s primary submission was that the Court determining his request was acting in an administrative capacity, not making a judicial decision, and is therefore susceptible to judicial review. He also submitted that the decision was unlawful for interrelated reasons:

(a)the public interest in the document, given the direction in Venning J’s judgment that the proposed statement of claim be referred to the police and Venning J’s memorandum to court managers dated 7 June 2019 notifying them of the effect of his judgment in relation to orders restricting commencement or continuation of civil proceedings; and

(b)the principles of open justice, the freedom to seek, receive and impart information, and the rule of law.

[9]                 Mr Siemer also raised concerns about the regime for access to court documents. He sought a broader review so that Judges are not burdened with requests and recourse is not confined to  an  appeal  where  security  for  costs  is  required. Mr Siemer seeks judicial review in the absence of an informal review or appeal process such as one involving timely decisions by a Registrar with review by a Judge.

[10]              Mr Rafiq’s proposed statement of claim was not included in the Agreed Record of Decision provided to me for the hearing.   At the hearing, the parties agreed that    I did not need to see it in order to address the primary issues of jurisdiction and unlawfulness, and that if I decided to consider the access request afresh I could do so without receiving further submissions – that is, I could decide the application afresh on the basis of the original request (necessarily looking at the document).

[11]I deal first with the jurisdiction issue.

[12]              Mr Siemer submitted that administrative functions carried out by a Judge are susceptible to judicial review. He submitted that Downs J was acting in an administrative capacity when declining access to the proposed statement of claim, at least in part because the judicial function is limited to the quelling of justiciable controversies and Mr Siemer was not “before the Court” when Downs J declined his application.

[13]              It is convenient to address the nature of the decision declining access before referring to the jurisdiction principles. I do not accept that Downs J’s decision was in an administrative capacity in the sense submitted. The Rules regulate access to court documents (albeit not affecting this Court’s inherent powers). The Rules provide general rights of the public to access certain documents – but not the proposed statement of claim – under r 8,5  and the rights of parties to access documents under   r 9. Otherwise, r 11(2) provides that persons may ask for access to documents. Parties to the relevant proceeding are generally to be notified.6 Rule 11(7) provides:

A Judge may—

(a)grant a request for access under this rule in whole or in part—

(i)without conditions; or

(ii)subject to any conditions that the Judge thinks appropriate; or

(b)refuse the request; or

(c)refer the request to a Registrar for determination by that Registrar.

[14]Judge means a Judge of the court, in this case the High Court.7

[15]              Rule 12 prescribes the matters a Judge must consider when determining an application for access:

5      Subject to specific qualifications under rr 6 and 7.

6      Rules 11(3) and (4).

7      The Court of Appeal has recently confirmed that in this context Judge does not extend to an Associate Judge: Boult v Crux Publishing Ltd [2022] NZCA 473.

In determining a request for access under rule 11, the Judge must consider the nature of, and the reasons given for, the request and take into account each of the following matters that is relevant to the request or any objection to the request:

(a)the orderly and fair administration of justice:

(b)the right of a defendant in a criminal proceeding to a fair trial:

(c)the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice:

(d)the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person:

(e)the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions):

(f)the freedom to seek, receive, and impart information:

(g)whether a document to which the request relates is subject to any restriction under rule 7:

(h)any other matter that the Judge thinks appropriate.

[16]              Some of these prescribed considerations reflect rights  confirmed  in  the  New Zealand Bill of Rights Act 1990 (NZBORA) such as the right in s 14 to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

[17]              Rule 13 then sets out the approach the Judge must take when balancing the r 12 factors, depending on whether the request is before, during or after the substantive hearing.

[18]              Thus, the Rules specifically provide for requests to be determined by a Judge according to prescribed criteria.8 Such determinations by Judges are often made on the papers by way of Minute, but the applicant is “before the Court” and such a determination by a Judge does not affect its nature. Nor does it matter that applicants

8      If a Judge refers a request to a Registrar for determination by that Registrar, the same prescribed rules apply to the Registrar: r 16. Reference to a Registrar did not happen in this case.

are not usually susceptible to costs.9 Determinations by a Judge under r 11(7) are not administrative in the sense Mr Siemer submitted. They are orders of the Court. Indeed, when Mr Siemer sought leave to appeal Downs J’s decision, the Judge considered that Mr Siemer would not have required leave to appeal under s 56 of the Senior Courts Act 2016.10

[19]              In any event, this Court does not assert jurisdiction to hear judicial review proceedings in relation to decisions made by its own Judges and Associate Judges. That is clear from the following appellate decisions. In Auckland District Court v Attorney-General, the Court of Appeal said:11

The supervisory jurisdiction of the High Court has been secured since the 17th century. It is based on the fundamental premise that statutory (and some prerogative powers) can be validly exercised only within their true limits. It is the task of the High Court to determine those limits and it does so by the process of judicial review. But the High Court cannot review its own decisions; it must determine its own jurisdiction and, if it is responsible for any irregularity, the defect must be corrected by the Court itself or on appeal…

[20]In Bulmer v Attorney-General, the Court of Appeal said:12

Nor is it necessary to consider the Crown’s further submission to the effect that an order for prohibition cannot be made against a High Court Judge and only lies against inferior courts, tribunals and public bodies. If authority were needed for that proposition, however, it  is  not necessary  to  look  beyond Re Racal Communications Ltd [1981] AC 374, per Lord Diplock at 384, per Lord Salmon at 386, and per Lord Scarman at 392.

[21]              Section 27(2) of NZBORA does not assist Mr Siemer. That subsection provides:

Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.

9      I note that a Judge may require the person asking for access to file an interlocutory or originating application: r 14.

10 Siemer v Auckland High Court [2019] NZHC 3393 at [4]. Downs J declined leave for the separate reason that Mr Siemer was, at the time, subject to a prohibition on the commencement or continuation of civil proceedings.

11 Auckland District Court v Attorney-General [1993] 2 NZLR 129 (CA) at 133.

12 Bulmer v Attorney-General (1998) 12 PRNZ 316 (CA) at 318. See also Hawkins v Attorney- General (1999) 14 PRNZ 5 (HC) at  [13]  and  Lister  v  (Deputy)  Registrar  High  Court  of New Zealand [2015] NZHC 1246 at [3].

[22]              However, as Tipping J said in Nicholls v Registrar of the Court of Appeal, s 27 cannot have been intended, by a side wind, to undermine the fundamental premise of judicial review: that it lies to tribunals and authorities and Courts lower in status than the High Court.13 Although the Privy Council referred to s 27(1) in R v Taito,14 leading Randerson J in Young  v Police to acknowledge that “tribunal” for the purpose of      s 27(1) includes superior Courts,15 he agreed with Tipping J in Nicholls that s 27(2) is not intended to enable judicial review of decisions of the superior Courts.16

[23]              I also do not consider that the exceptional “nullity” cases involving a breach of natural justice indicate an enlargement of the Court’s approach to judicial review of decisions of the superior Courts.   Brogden v Arnold is such an exceptional case.17    In that case, on an application for leave to appeal to the Court of Appeal after the High Court had dismissed an appeal against a stay of private prosecutions in the District Court, Heath J considered he had jurisdiction to set aside the High Court orders because there had been a fundamental failure to hear parties such that the orders were characterised as “nullities”.18

[24]              Subject to this very narrow “nullity” exception, I accept Mr Powell’s submission for the Attorney-General that the only way decisions of Judges and Associate Judges of this Court can be challenged is by exercising a right of appeal or by seeking a recall of the decision by the Judge who made it, where applicable.19

[25]              For these reasons, I conclude that this Court has no jurisdiction to hear judicial review proceedings in relation to the Court’s decision to decline Mr Siemer access to Mr Rafiq’s proposed statement of claim.

13     Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385 (CA) at 435. See also Young v Police [2007] 2 NZLR 382 (HC) at [30]-[38].

14     R v Taito [2003] 3 NZLR 577 (PC) at 588. The case involved criminal appeals, not judicial review.

15     Young v Police [2007] 2 NZLR 382 (HC) at [31].

16 At [35].

17   Brogden v Arnold [2003] NZAR 80. Also in the criminal context, see R v Nakhla (No 2) [1974] 1 NZLR 453 (CA) at 455-456, and Butterfield v R [1997] 3 NZLR 760 (HC).

18 At [12]. See also Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2013] NZHC 2361, which concerned an alleged breach of natural justice on the grounds of presumptive bias. Appeals had been exhausted and the High Court refused to allow an exception to the finality principle – that once a court has delivered a final judgment it has no authority to correct, alter or supplement that judgment.

19 Recall is only available within the three categories in Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633, applied by in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122, [2010] 1 NZLR 76 at [2] and Uhrle v R [2020] NZSC 62 at [22] and [29].

[26] In the circumstances, it is unnecessary to address whether the decision was unlawful, and I consider it would be inappropriate to do so. A further reason for not doing so has arisen since the hearing and only recently come to my attention. The Court of Appeal has delivered judgment on an appeal against Downs J’s decision (referred to at [5] above) refusing leave to appeal the earlier declinature of the request for access to court documents.20 The Court of Appeal has set aside that decision on the basis that the s 88B order against Mr Siemer expired on 4 March 2019 and so he did not require leave to appeal the decision refusing him access to the Rafiq documents. In doing so, the Court indicated that whether the earlier decision (declining the request) was supportable is a question for an appeal against the earlier decision.21 Even if there were jurisdiction to judicially review a decision of this Court, the prospect of an appeal against the earlier decision would be a further reason for this Court not to address the lawfulness of the earlier decision by way of judicial review.

Result

[27]The application for judicial review is dismissed.

[28]              If costs cannot be agreed, I will receive memoranda not exceeding three pages within 20 working days and determine costs on the papers.

Gault J

Parties / Solicitors / Counsel:

The Applicant

Mr A M Powell and Ms R M McMenamin, Crown Law, Wellington

20     Siemer v Attorney-General [2022] NZCA 262.

21     At [37]-[39]. I issued a Minute on 12 October 2022 seeking clarification as to whether any such appeal was pending and received responses on 13 October 2022.