Siemer v Chief Justice of the New Zealand Supreme Court HC Auckland CIV 2010-404-1909
[2011] NZHC 2112
•11 February 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2010-404-001909
BETWEEN VINCENT ROSS SEIMER Plaintiff
ANDCHIEF JUSTICE OF THE NEW ZEALAND SUPREME COURT Defendant
Hearing: 22 October 2010
Appearances: V R Seimer (Plaintiff) in person
H S Hancock for Defendant
Judgment: 11 February 2011
(RESERVED) JUDGMENT OF ANDREWS J
[Defendant’s application to strike out plaintiff ’s statement of claim]
This judgment is delivered by me on 11 February 2011 at 4:30pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Solicitor: Crown Law, DX SP20208, Wellington 6140
And to: V R Siemer, 27 Clansman Terrace, Gulf Harbour
SEIMER V CHIEF JUSTICE OF THE NZ SUPREME COURT HC AK CIV 2010-404-001909 [11 February
2011]
Introduction
[1] In this proceeding the plaintiff, Mr Siemer, alleges that a number of judicial officers, including the defendant, have breached his right to natural justice under s 27 of the New Zealand Bill of Rights Act 1990 (―NZBORA‖). He filed an amended statement of claim on 11 June 2010, in which he claims general damages of
$1,486,000, together with exemplary or aggravated damages of $200,000, costs and interest.
[2] The defendant has applied to strike out Mr Siemer’s claim on the grounds
that:
(a) His amended statement of claim discloses no reasonable cause of action against the defendant, mounts a collateral attack on decisions made by other courts of competent jurisdiction (including the Supreme Court), breaches principles of finality and res judicata, contains irrelevant and scandalous material, and is an abuse of process of the Court; and
(b)The amended statement of claim is frivolous and vexatious and is otherwise an abuse of process of the court.
[3] Mr Siemer opposes the application for strike out.
Mr Siemer’s claim
[4] Mr Siemer alleges that, as a result of conduct by judges presiding over various court hearings, he has been deprived of natural justice.
[5] First, at [49] of his amended statement of claim he alleges that ―the singular and cumulative effect of the Judges’ deprivation of natural justice to [him] has been marked by‖ the following:
(a) The judgment of Rodney Hansen J dated 19 April 2007, striking out
Mr Siemer’s defence to proceedings issued by Ferrier Hodgson (now
and others (―the defamation proceedings‖).1 Mr Siemer submitted that Rodney Hansen J had struck out his defence after having ruled earlier (on 8 September 2006) that it had merit.
(b)The judgment of Potter J dated 9 July 2007, finding Mr Siemer in breach of an injunction order issued in the defamation proceeding, issuing a writ of arrest, and debarring Mr Siemer from defending the substantive defamation proceeding. Mr Siemer submitted that Potter J’s orders were ―the result of an ex-parte hearing deliberately convened by Potter J during the legally-unrepresented plaintiff’s two- week absence from the country‖, thus depriving him of the right to be heard.
(c) The judgment of Cooper J dated 23 December 2008, giving judgment against Mr Siemer in the defamation proceeding. Mr Siemer submitted that he had been given no notice of an amended statement of claim that Cooper J allowed Mr Stiassny to file, and proceeded to an undefended trial on the same day.
(d)The judgment of the Supreme Court dated 17 May 2010, in which the Supreme Court sentenced Mr Siemer to three months imprisonment for contempt of Court, as a result of proceedings for contempt of Court brought by the Solicitor-General on the grounds that Mr Siemer had continued to breach the injunction order in the defamation proceeding (―the contempt proceeding‖).2 Mr Siemer submitted that the Supreme Court had not permitted him to be heard on sentence. He also submitted that the Supreme Court had failed to give reasons for
its decision.
[6] Secondly, at [51] of his amended statement of claim, Mr Siemer alleges that he has been deprived of his right to be heard by unbiased and disinterested decision-
―fabricated evidence of a racist nature in support of his decision in the defamation
proceeding‖. Regarding hearings in the Court of Appeal, he alleged that O’Regan J
―had a vested interest in preventing challenge to alleged factual or legal errors in the judgment of Cooper J‖, in that an earlier ruling made by O’Regan J was the subject of an appeal to the Supreme Court. He also alleged that Chambers and Hammond JJ had conflicts of interest, as a result of personal relationships with Mr Stiassny or persons employed by Ferrier Hodgson, but failed to disqualify themselves from sitting.
[7] With respect to hearings in the Supreme Court, Mr Siemer alleged that the Chief Justice had a conflict of interest in that her husband is a director of a company of which Mr Stiassny is also a director and chairman of the board of directors. Mr Siemer submitted that the Chief Justice had also refused to disqualify herself from sitting.
Section 27 of the New Zealand Bill of Rights Act
[8] A litigant’s right to natural justice is set out in s 27 of the NZBORA:
27 Right to justice
(1) Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.
(2) 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.
(3) Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.
[9] In its judgment in Combined Beneficiaries Union Inc v Auckland City COGS Committee, the Court of Appeal said: 3
3 Combined Beneficiaries Union Inc v Auckland City COGS Committee [2009] 2 NZLR 56 (CA)
at 11.
adequate notice and opportunity to be heard ... and that the decision-maker
be disinterested and unbiased ... .
The jurisdiction to strike out a statement of claim
[10] The jurisdiction to strike out pleadings is set out in r 15.1 of the High Court
Rules, which provides:
15.1 Dismissing or staying all or part of proceeding
(1) The court may strike out all or part of a pleading if it—
(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b) is likely to cause prejudice or delay; or
(c) is frivolous or vexatious; or
(d) is otherwise an abuse of the process of the court.
(2) If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.
(3) Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.
(4) This rule does not affect the court's inherent jurisdiction.
[11] The relevant principles to be applied in considering an application to strike out a proceeding on the basis that it discloses no reasonably arguable cause of action are well settled. They were summarised by the Court of Appeal in Attorney-General v Prince,4 and endorsed by the Supreme Court in Couch v Attorney-General.5 The following principles apply:
(a) Pleaded facts, whether or not admitted, are assumed to be true. This does not extend to pleaded allegations which are entirely speculative and without foundation.
(b) The cause of action must be clearly untenable. In their judgment in
Couch Elias CJ and Anderson J said:6
It is inappropriate to strike out a claim summarily unless the court can be certain that it cannot succeed.
(c) The 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, requiring extensive argument.
(e) The court should be particularly slow to strike out a claim in any developing area of the law, in particular where the law is confused or developing.
[12] With respect to the principle that pleaded facts are assumed to be true, the
Court of Appeal in Attorney-General v McVeagh, acknowledged: 7
... there may be a case where an essential factual allegation is so demonstrably contrary to indisputable fact that the matter ought not to be allowed to proceed further.
[13] Mr Hancock submitted that Mr Siemer’s claim is such a case. He submitted that the defendant has put forward a number of previous judgments involving Mr Siemer which reach conclusions that contradict the factual allegations in the amended statement of claim. He submitted that Mr Siemer’s factual allegations are so untenable and baseless that it would be improper for the Court to allow those factual allegations to be assumed.
[14] It has been held that a proceeding is frivolous or vexatious, and an abuse of process, if it is an attempt to relitigate matters that have already been determined, or is a duplication of other proceedings. Such attempts to relitigate matters already determined are referred to as collateral attacks on judgments of another court of
competent jurisdiction. In Hunter v Chief Constable of the West Midlands Police, Lord Diplock said: 8
The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.
The issues
[15]
Siem
It is er’s cl
(a)
appropriate to consider the defendant’s application to strike out Mr aim by addressing the following issues:
Is Mr Siemer’s claim a collateral attack on other decision of Courts of
competent jurisdiction? (b)
Has there been a breach of s 27 of NZBORA?
(c)
Is Mr Siemer’s claim frivolous and vexatious amounting to an abuse
of process?
Is Mr Siemer’s claim a collateral attack?
[16] It is useful to examine the allegations made by Mr Siemer.
Alleged breaches of natural justice
[17] I turn first to the judgment of Rodney Hansen J of 19 April 2007. It is necessary to point out, first, that in his oral judgment of 8 September 2006, Rodney Hansen J ruled on a number of interlocutory applications made by Mr Siemer. They included an application for there to be a determination, as a preliminary issue, as to
whether certain of the words complained of as being defamatory were capable of
8 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 541.
having the meanings attributed to them in the statement of claim filed by Ferrier
Hodgson and Mr Stiassny. His Honour said in his oral judgment:9
On a cursory review, I am persuaded that at least in some instances there is
merit in the defendant’s position.
Rodney Hansen J concluded that there should be a determination as a preliminary issue.
[18] His Honour’s judgment of 19 April 2007 was again in respect of interlocutory applications, including one to strike out some paragraphs of Mr Siemer’s statement of defence to the defamation proceeding. Those paragraphs were struck out, for the reasons given in the judgment.
[19] There is no inconsistency between the two judgments of Rodney Hansen J. In the judgment of 8 September 2006 he said that there was ―some merit‖ in the defendant’s contention that there should be a preliminary determination as to whether certain words were capable of bearing certain defamatory meanings. His Honour’s comment cannot be taken as expressing any view as to Mr Siemer’s defence to the defamation proceeding.
[20] Mr Siemer appealed to the Court of Appeal. The Court of Appeal confirmed
Rodney Hansen J’s judgment.10
[21] I turn next to the judgment of Potter J of 9 July 2007. The circumstances under which there was a hearing before Potter J on 4 July 2007 in the absence of Mr Siemer are set out in detail in the judgment. It is clear from the sequence of events that Mr Siemer had notice of the hearing and made no application for an adjournment, or any arrangements for counsel to appear on his behalf. Further, he had not filed a notice of opposition to the application filed by Ferrier Hodgson and Mr Stiassny. Accordingly, as there was proof of service of the application on him, under the High Court rules the Court was entitled to hear the application in his
absence.
9 Ferrier Hodgson & Anor v Siemer & Ors HC Auckland CIV-2005-404-1808, 19 April 2007 at[16].
10 Siemer v Ferrier Hodgson & Another [2008] NZCA 255.
[22] Potter J’s judgment was delivered on 9 July 2007. On 11 January 2010 Mr Siemer applied for leave to appeal to the Court of Appeal, in essence seeking an extension of time to appeal. His grounds for leave included that Her Honour had
―erred in improperly exercising discretion to contravene essential statutory entitlement to defend oneself in Court‖. The application for leave to appeal was dismissed, for the reasons set out in the judgment of the Court of Appeal.11
[23] I turn next to the judgment of Cooper J dated 23 December 2008. Mr Siemer alleged that Cooper J had allowed an amended statement of claim to be filed on the day of the hearing. At [32]–[36] of his judgment Cooper J set out his reasons for allowing the hearing to proceed on the basis of a fourth amended statement of claim which had been filed six days before the hearing. At [35] of his judgment his
Honour said:12
I formed the view that it would be in the interests of justice to allow the plaintiffs to proceed on the basis of the amended pleadings. The matters relied on were all within Mr Siemer’s knowledge, and indeed, revolved around actions quite deliberately taken by him. Any prejudice to him of allowing the amendments in his absence, must be off-set by the countervailing consideration that the plaintiffs were entitled to put their full case to the Court and rely on the further claims arising since the statement of claim was last amended.
[24] Mr Siemer appealed to the Court of Appeal. Issues as to whether Mr Siemer had notice of the hearing, and of the amended pleading, were traversed. The Court of Appeal heard from Mr Siemer and had the assistance of Dr R E Harrison QC as counsel assisting the Court. The Court dismissed the appeal.13 The Supreme Court refused leave to appeal.14
[25] I turn finally to the judgment of the Supreme Court, of 17 May 2010, in respect of which Mr Siemer alleges that the Supreme Court decided his appeal without hearing from him as to sentence, and failed to give reasons. Mr Siemer was represented by senior counsel, Mr R M Lithgow QC at the hearing on 2 March 2010.
It is evident from the judgments given in the Supreme Court that the hearing focused
11 Siemer v Stiassny & Anor [2010] NZCA 81.
12 Korda Mentha formerly Ferrier Hodgson & Anor v Siemer & Ors HC Auckland CIV-2005-404-
001808, 23 December 2008.
13 Siemer v Stiassny & Anor [2009] NZCA 624.
14 Siemer v Stiassny & Anor [2010] NZSC 57.
on the question of sentence. Further, both the majority and the minority judgments set out reasons, in detail.
Alleged breach of the right to a hearing before an unbiased and disinterested decision-maker
[26] Mr Siemer alleged that Cooper J had ―fabricated evidence of a racist nature‖. That allegation was a further ground of Mr Siemer’s appeal to the Court of Appeal, and repeated in his application for leave to appeal to the Supreme Court. It was considered by both courts.
[27] In his application for leave to appeal to the Supreme Court in respect of the judgment of Rodney Hansen J of 19 April 2007, Mr Siemer alleged actual or apparent bias by Hammond J, who had been a member of the Court of Appeal bench for the hearing in that Court. Mr Siemer’s allegation was considered and rejected by the Supreme Court.15
[28] When seeking leave to appeal to the Supreme Court against the Court of Appeal’s judgment in respect of the judgment of Cooper J of 23 December 2008, Mr Siemer alleged bias on the part of O’Regan J (who was a member of the Court of Appeal bench for that appeal) in that he had, in an earlier appeal, made findings
against him. The Supreme Court rejected the allegation.16
[29] Mr Siemer also alleges that Chambers J was a friend of Mr Stiassny, so was biased and should have disqualified himself from being a member of the bench of the Court of Appeal which heard his appeal against the injunction order granted in the defamation proceeding. The Court of Appeal’s judgment dismissing Mr Siemer’s appeal was delivered on 13 December 2005.17 There has been no appeal against the Court of Appeal’s judgment, although matters relating to the defamation proceeding and the injunction have been before the Court of Appeal and the Supreme Court on
numerous occasions.
15 Siemer v Ferrier Hodgson & Anor [2008] NZSC 98.
16 Siemer v Stiassny & Anor [2010] NZSC 57.
17 Siemer & Anor v Ferrier Hodgson & Ors CA 87/05 13 December 2005.
[30] Mr Siemer applied to the Supreme Court for an order that the Chief Justice recuse herself from hearing his appeal against the judgment of the Court of Appeal in respect of his sentence of imprisonment in the contempt proceeding. Mr Siemer was again represented by senior counsel, Mr Lithgow QC, at that hearing. The Supreme Court dismissed the appeal.18
Conclusion: collateral attack
[31] I accept Mr Hancock’s submission that Mr Siemer’s claim is a collateral attack on judgments of courts of competent jurisdiction in other proceedings. It appears that Mr Siemer is not happy with, and does not accept, the judgments that have been delivered. If that is the case, it is not now open to him to issue new proceedings to relitigate the issues. Once avenues of appeal have been exhausted, as they have been in this case, there must be an end to proceedings.
[32] Accordingly, I am satisfied that Mr Siemer’s amended statement of claim must be struck out as an abuse of process, as being a collateral attack on judgments already given by courts of competent jurisdiction.
Has there been a breach of NZBORA?
[33] In the light of the matters I have set out above, I have concluded that Mr Siemer’s claim that there has been a breach of NZBORA cannot possibly succeed. I am satisfied that there is no basis for his claim that there has been a breach.
[34] I am satisfied of this for two reasons: first, Mr Siemer’s allegation that hearings proceeded without proper notice to him, without affording him the opportunity to be heard, or in other circumstances detrimental to him, cannot withstand scrutiny; and secondly, each of the allegations made by Mr Siemer in the present proceeding have already been considered and rejected by an earlier court or
courts.
18 Siemer v Solicitor-General [2010] NZSC 12.
[35] Accordingly, I am satisfied that Mr Siemer’s amended statement of claim
must be struck out as failing to disclose any reasonably arguable cause of action.
Is Mr Siemer’s claim frivolous and vexatious amounting to an abuse of process?
[36] For essentially the same reasons as I have set out above, I am satisfied that Mr Siemer’s amended statement of claim must be struck out as being frivolous and vexatious, amounting to an abuse of process. In particular, I have reached this conclusion having taken into account the fact that Mr Siemer’s allegations have been made previously, have been rejected by both first instance and appeal courts, yet Mr Siemer has continued to repeat the (baseless) allegations.
Result
[37] Mr Siemer’s claim is struck out.
[38] I note that the defendant’s application sought an award of costs. No submissions were made as to costs at the hearing. Should the matter of costs be pursued on behalf of the defendant, then appropriate memoranda are to be filed: any such memorandum on behalf of the defendant within 21 days of the date of this
judgment and any such memorandum by Mr Siemer within a further 21 days.
Andrews J
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