Siemer v Auckland High Court

[2019] NZHC 3393

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-002518

[2019] NZHC 3393

UNDER

Senior Courts (Access to Court Documents) Rules 2017

IN THE MATTER

of an administrative refusal to provide a public court document as required by law

BETWEEN

VINCENT ROSS SIEMER
Appellant

AND

AUCKLAND HIGH COURT

Respondent

Hearing:	On the papers
Judgment:	18 December 2019

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 18 December 2019 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Copy to: Appellant

SIEMER v AUCKLAND HIGH COURT [2019] NZHC 3393 [18 December 2019]

Background

[1]    On 29 May 2019, Venning J declined Razdan Rafiq permission to bring a claim in the High Court.1 Mr Rafiq is a vexatious litigant, hence the requirement for permission. The Judge described Mr Rafiq’s statement of claim as “abusive and a nonsense”.2 He noted Mr Rafiq sought “an entirely ridiculous sum of money” and had trivialised recent events in Christchurch.3 Venning J concluded the proposed claim was “plainly frivolous and vexatious”.4

[2]    On 4 October 2019, Vincent Siemer sought to access the court file in relation to Mr Rafiq’s claim under the Senior Courts (Access to Court Documents) Rules 2017, or Access Rules. I dealt with the application as Duty Judge:5

Mr Vincent Siemer seeks access to the court file of a case in which Venning J declined Mr Razdan Rafiq leave to commence a proceeding. There are only three documents on the file: Venning J’s judgment; Mr Rafiq’s proposed proceeding; and Mr Rafiq’s application for leave. Mr Siemer is entitled to a copy of the judgment; it is a matter of record.

I decline access to the remaining documents. Venning J concluded 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”.

So, Mr Siemer may have the judgment, but not the other documents.

[3]    Mr Siemer seeks permission to appeal to the Court of Appeal in relation to my decision.   He wishes to argue it “is mala fide and unlawful”, and “nonsensical”.    Mr Siemer emphasises the importance of freedom of expression and open justice.

Is permission required?

[4]    A decision of the High Court on an interlocutory application may not be appealed to the Court of Appeal unless either Court grants permission for an appeal.6 The phrase “interlocutory application” is defined broadly, but it is not clear

1      Re Rafiq [2019] NZHC 1193.

2 At [39].

3 At [39].

4 At [40].

5      Minute of 24 October 2019.

6      Senior Courts Act 2016, s 56.

Mr Siemer’s application to access the Court file is such an application.7 The application is not obviously a matter of procedure; nor does it relate to one. Mr Siemer does not seek relief ancillary to that claimed in a pleading. The Access Rules permit a Judge to require an applicant to file “an interlocutory application or originating application”.8 So, they appear to contemplate a distinction between a party seeking access to a court file as an ancillary step to litigation and someone seeking access independently  of  that.9  Mr Siemer  is  in  the  latter  category.  All  this  suggests Mr Siemer does not need permission on this front.

[5]    However, Mr Siemer maybe a vexatious litigant. I say “maybe” because of this mix. In 2016, the Court of Appeal concluded Mr Siemer was a vexatious litigant.10 That Court prohibited Mr Siemer from commencing (or continuing) civil proceedings. The prohibition had no time limit. The Senior Courts Act 2016 now imposes time limits on such prohibitions. Palmer J recently concluded the Senior Courts Act means Mr Siemer is no longer subject to the Court of Appeal’s prohibition.11 But, Palmer J’s decision is not readily reconcilable with Venning J’s decision in relation to Mr Rafiq— the person whose “frivolous and vexatious” statement of claim Mr Siemer wishes to access.12

[6]    Venning J held a “lifetime ban” made before the enactment of the Senior Courts Act became an order under that Act. So too Palmer J. I call this the new order.13 Analyses then diverge. Venning J held the new order commenced when the Act did: 1 March 2017. Palmer J held the new order began when the antecedent lifetime ban was made; in Mr Siemer’s case, 4 March 2016. As observed, the Act imposes time limits on such prohibitions. Absent exceptional circumstances justifying a five-year prohibition, the maximum term is three years. Venning J held a lifetime ban implied exceptional circumstances, so Mr Rafiq’s prohibition was for five years (beginning 1 March 2017). Palmer J held such circumstances must be explicit; indeed,

7      Senior Courts Act, s 4(1).

8      Senior Courts (Access to Court Documents) Rules 2017, r 14(a).

9      Rule 14(a).

10     Siemer v Attorney-General [2016] NZCA 43, [2016] NZAR 411.

11     Siemer v New Zealand Law Society [2019] NZHC 3075.

12     Re Rafiq, above n 1.

13     Mr Siemer’s earlier prohibition was made under s 88B of the Judicature Act 1908.

“clear on the face” of the judgment.14 The Judge was not satisfied this condition was met, so Mr Siemer’s prohibition was for three years (backdated to 4 March 2016).

[7]    Both Judges emphasised the importance of the right to justice, one affirmed by s 27 of the New Zealand Bill of Rights Act 1990. Venning J did not see the right as decisive. Palmer J did. The Judge said his interpretation was the “rights-consistent one”.15

[8]Neither decision binds me. Both command respect.

[9]    I prefer Venning J’s analysis, for the reasons he gave. I also offer these brief observations.   It  is  not  clear  how  the  new  order  could  begin  before  the   Senior Courts Act became law; the new order arose because of  that  Act.  The  Senior Courts Act could have expressly backdated the new order to the making of the original prohibition. It did not. Nor is it clear a rights-compliant interpretation yields the result Mr Siemer’s prohibition has ended. Courts have long held a vexatious litigant prohibition is a justified limitation on the right to justice.16 This conclusion is unremarkable. Vexatious litigants imperil others’ rights to justice. They expose victims to meritless claims, often with grossly defamatory allegations. They also compromise the Courts’ capacity to dispense justice by clogging them with frivolous and vexatious suits.

[10]   Moreover, I think it self-evident the Court of Appeal saw Mr Siemer’s circumstances as sufficiently exceptional to warrant a potentially life-long prohibition. History is instructive. The High Court imposed an indeterminate prohibition but confined it to cases involving discrete people. The Attorney-General appealed this aspect. The Court of Appeal reversed:17

Mr Powell further submitted the current order is too narrow to provide the necessary protection to potential defendants and the court system. What lay behind Mr Siemer’s litigation was his refusal to accept the finality of decisions that are adverse to him and there are ample grounds to apprehend that any future litigation Mr Siemer might  bring  would  be  similarly  influenced.  Mr Powell submitted no system of civil justice can accommodate an

14     Siemer v New Zealand Law Society, above n 11, at [25].

15 At [2].

16     Re Rafiq, above n 1, at [27], citing Brogden v Attorney-General [2001] NZAR 809 (CA) at [23].

17     Siemer v Attorney-General, above n 10, at [44]–[46] (footnotes omitted).

unrestricted right to sue remaining in the hands of a person who has demonstrated he will not accept the final judgment of the courts if he thinks it is wrong.

We agree with that submission, which is further supported by Mr Siemer’s conduct during the 23-month period since the order was made. Although he has not commenced any vexatious proceedings, he has at appellate level vexatiously conducted another proceeding: Siemer v Brown. Mr Siemer initiated the Siemer v Brown litigation properly, as a challenge to a police search of his home. However, despite that proper commencement, it is evident Mr Siemer conducted the subsequent appeals vexatiously, continuing unabated the pattern of challenging every adverse ruling and then seeking to have final judgments recalled. We are able to take into account the vexatious conduct of appeals in our overall assessment of Mr Siemer’s litigious behaviour.  Significantly,  Siemer  v  Brown  is  unrelated  to  the  core Siemer v Stiassny dispute.

We are satisfied the High Court erred by, first, not giving counsel an opportunity to be heard on the issue of the scope of the order and, second, by failing to take into account the need to protect defendants unrelated to the core dispute. We are mindful of the importance of the right to issue proceedings and the importance of ensuring that any restrictions placed on that right are limited to the minimum possible. However, in our view, having regard to the underlying purposes of s 88B identified by Mr Powell, the current order is too narrow and does not provide the necessary protections contemplated by Parliament. A general order is warranted.

[11]   So, I conclude Mr Siemer remains a vexatious litigant with a related prohibition on the commencement or continuation of civil proceedings under the new order. Applying Venning J’s reasoning to Mr Siemer’s case means his prohibition also ends 1 March 2022.

[12]   Does the proposed appeal constitute the commencement or continuation of a civil proceeding? The Senior Courts Act does not define a civil proceeding or civil proceedings. Doubt attaches to the appeal being the continuation of a civil proceeding because the Access Rules contemplate informality of application and decision making. A letter, email or “any other written form of request” suffices for documents to which an applicant has no right of access.18 And, a Judge may determine a request for access “in any manner the Judge considers just”.19 Most would not regard an application to access a court file as a civil proceeding. That said, the conclusion may be fact specific. What if, for example, the Judge requires an applicant to file an originating application, and then convenes a hearing? It is enough to observe I did neither.

18     Senior Courts (Access to Court Documents) Rules, r 11(2).

19     Rule 14.

[13]   However, I consider Mr Siemer’s proposed appeal would constitute the commencement of a civil proceeding. An appeal to the Court of Appeal is inarguably a proceeding, however that term is defined. This would be so even if the appeal were “heard” on the papers (which is not for me to decide). And, the proposed appeal is inarguably civil; no question of criminal jurisdiction arises. It follows the proposed appeal is caught by the prohibition I consider still exists under the new order.

[14]   There is no reason to permit the proposed appeal. The underlying statement of claim is, as observed, “abusive and a nonsense”.20 Mr Siemer has no right of access to it. Consequently, Mr Siemer’s rights have not been abridged. Freedom of expression and open justice are quintessential to a liberal democracy. However, the proposed appeal raises no serious issue in relation to either.

Order

[15]   I decline Mr Siemer permission to appeal to the Court of Appeal in relation to my Minute of 24 October 2019.

……………………………..

Downs J

20     Re Rafiq, above n 1, at [39].