Siemer v District Court, North Shore
[2019] NZHC 346
•6 March 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-000610
[2019] NZHC 346
UNDER the Judicial Review Procedure Act 2016 and s 27(2) of the New Zealand Bill of Rights Act 1990 IN THE MATTER
of an application for judicial review
BETWEEN
JANE DINSDALE SIEMER
ApplicantAND
DISTRICT COURT, NORTH SHORE
First Respondent
DISPUTES TRIBUNAL, NORTH SHORE
Second RespondentJUDE HICKSON
Third Respondent
Hearing: 1 March 2019 Appearances:
Applicant in person
No appearance for Respondents RD Butler as amicus curiae
Judgment:
6 March 2019
JUDGMENT OF DOWNS J
This judgment was delivered by me on Wednesday, 6 March 2019 at 1 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Law, Wellington.
RD Butler, Auckland.
Copy to: Applicant.
SIEMER v DISTRICT COURT [2019] NZHC 346 [6 March 2019]
Background
[1] The background to Mrs Jane Siemer’s claim for judicial review is messy, but important.
[2] In April 2017, she and her husband, Mr Vincent Siemer, filed a claim in the Disputes Tribunal. The Siemers alleged a builder, Mr Jude Hickson, breached contract in relation to work on their home. They sought $12,000. Later that month, Mrs Siemer filed a second claim alleging she and Mr Siemer had (wrongly) paid one of Mr Hickson’s invoices twice. She sought more than $6,000; later more than $9,000. Mr Clayton Luke heard both (consolidated) claims and dismissed them.1 Mrs Siemer appealed to the District Court. Judge G M Harrison dismissed her appeal.2 Mrs Siemer seeks judicial review of the decisions of the Disputes Tribunal and District Court.
[3] Mrs Siemer made “numerous complaints about the conduct of Mr Luke to the Ministry of Justice and ... New Zealand Law Society”.3 Mrs Siemer also made a claim against Mr Luke in the Disputes Tribunal and sought judicial review against him and the New Zealand Law Society. More about the latter from [6].
[4] Mr Siemer made his own complaint about Mr Luke to the New Zealand Law Society, published an internet article describing Mr Luke as a “bottom feader” [sic] and, among other things, distributed flyers at the North Shore District Court inviting recipients “to a false website about Mr Luke that was clearly intended to disparage Mr Luke both professionally and personally”.4
[5]Mr Siemer is a vexatious litigant.5
[6] Hinton J heard Mrs Siemer’s claim for judicial review described at [3]. And, struck it out. The Judge made this civil restraint order against Mrs Siemer:6
1 Siemer v Hickson DT North Shore CIV-2017-044-495, 3 October 2017.
2 Siemer v Hickson [2018] NZDC 4262.
3 See Siemer v Attorney-General [2018] NZHC 3406 at [22](b).
4 At [23](e).
5 The Disputes Tribunal appears to have overlooked this.
6 Siemer v Attorney-General, above n 3, at [4] (emphasis added).
The third order sought is a civil restraint order against Mrs Siemer, of an extended effect, under ss 166(1) and (2)(b) of the Senior Courts Act 2016, in the following terms:
The applicant is prohibited from commencing or continuing, without leave, any proceeding in any court or tribunal, concerning or relating to Siemer v Hickson CIV-2017-044-495 and CIV-2017-044-562, including (without limitation) proceedings relating to the conduct of any judicial officer of the Disputes Tribunal, for three years.
[7] Hinton J found Mrs Siemer had brought three cases “totally without merit”,7 all which appeared to have been “orchestrated substantially to harass and inconvenience the respective defendants”.8 The Judge considered Mr and Mrs Siemer had embarked on a “joint campaign of harassment ... against Mr Luke and others”.9
[8] Mrs Siemer filed this claim before the claim struck out by Hinton J. But, the civil restraint order encompasses it; see the italics at [6]. Mrs Siemer sought leave to continue her claim. I said I would consider her application at the already scheduled substantive hearing, because I would then have a better sense of the merits.10
[9] Mrs Siemer appeared at that hearing and argued those merits, albeit briefly.11 I heard also from Mr Butler, whom Fitzgerald J—the Judge managing the claim—had appointed to assist the Court.12
[10] I am satisfied leave should not be granted. To foreshadow my reasoning, the claim is brought to harass, and is almost certainly Mr Siemer’s. Nothing about the claim merits judicial review of the modest matters brought to the attention of the Disputes Tribunal.
7 Siemer v Attorney-General, above n 3, at [100].
8 At [101].
9 At [103].
10 Senior Courts Act 2016, s 169(5).
11 Mrs Siemer was accompanied by Mr Colin Henry, a barrister. She asked for Mr Henry to advance submissions, “if necessary”. I said no. A barrister may address the Court when engaged as counsel, or a party. Mr Henry was neither. However, I allowed Mr Henry to sit next to Mrs Siemer as a McKenzie friend.
12 Mr Butler said he was “agnostic” in relation to leave.
Elaboration
[11] First, this claim is closely related to—and much like—that dismissed by Hinton J. At the heart of each is the proposition Mr Luke acted improperly as Referee in the Disputes Tribunal when hearing Mrs Siemer’s claim, largely through alleged bias. Or as Hinton J recorded, through Mr Luke’s allegedly “reprehensible” behaviour.13 This is not to overlook the anodyne pleadings in this claim, which include alleged breaches of natural justice and procedural impropriety.
[12] Second, Mrs Siemer’s handling of this claim is consistent with an intention to harass. The following are examples only:
(a)On 31 May 2018, Mrs Siemer filed a “case management” memorandum alleging the District Court and Disputes Tribunal wanted to conceal evidence.
(b)On 6 August 2018, Mrs Siemer filed an affidavit in which she said:
(i)Mr Luke’s “attitude toward me bordered on masochistic”;
(ii)Mr Luke’s case approach was “dishonest”; and
(iii)Mr Luke displayed “belligerence and ... deception”.
(c)On 7 August 2018, Fitzgerald J found Mrs Siemer had “chosen to disregard” a Court order precluding dissemination of transcripts.14
(d)On 28 August 2018, Mrs Siemer filed a memorandum accusing Crown counsel of “plainly [making] a false statement”, intending to mislead the Court. Mrs Siemer said her case “was taking a familiar course ... [by which] the Crown defendants are working overtime to obstruct and obscure legitimate legal issues and committing perjury”.
13 Siemer v Attorney-General, above n 3, at [33](a).
14 Siemer v District Court HC Auckland CIV-2018-404-610, 7 August 2018 at [3] (Minute of Fitzgerald J). Mrs Siemer apologised, but then lodged an appeal.
(e)On 3 September 2018, Mrs Siemer filed a memorandum alleging a transcript proved Mr Luke “had materially misled” the District Court, adding “Lawyers get struck off for this conduct”.
(f)On 2 October 2018 Mrs Siemer filed a memorandum asserting:
(i)Fitzgerald J had “a vested interest in not recognising any evidence from the Crown respondents which shows them to be dishonest or incompetent”.
(ii)Mr Luke:
1. Had “a pattern” of “making false representations”.
2. Was “deliberately abusive” of Mrs Siemer, and “deceptive on material issues”.
(g)On 8 October 2018, Mrs Siemer filed a memorandum accusing Fitzgerald J of:
(i)Attempting “to throw me to the wolves with my hands tied behind my back while threatening me”.
(ii)Conduct that was “not judicial”.
(iii)Protecting “Mr Luke’s evident misogyny and conceal[ing] court evidence”.
(iv)“Making up things”.
(h)On 30 October 2018, Mrs Siemer filed a memorandum accusing Mr Butler of:
(i)Bias.
(ii)“Ignoring multiple affidavit evidence”.
(iii)“Disturbing” denials.
(iv)“Railroading this judicial review”.
(i)At the hearing, Mrs Siemer handed me an affidavit accusing Mr Butler of “evident deception”, and deliberate misrepresentations. The affidavit also described Mr Butler as “dishonest”. I asked Mrs Siemer why she was submitting this material. She said the affidavit was relevant to her application for leave.
(j)After the hearing, Mrs Siemer filed a memorandum seeking a transcript (of the hearing) so she could place it before the New Zealand Law Society in support of an attached complaint about Mr Butler, alleging “cocky” demeanour and “gross misrepresentation” in Court. I pause to observe Mr Butler’s demeanour was unremarkable, and his submissions—oral and written—helpful.
[13] In short, Mrs Siemer has, from an early stage, accused everyone—including Fitzgerald J—of impropriety, even dishonesty. To this should be added the obvious: Mrs Siemer’s allegations are unsupported by any independent evidence.
[14] Third, it is all but certain Mr Siemer is behind this, so the claim actually his. The examples described above are similar in nature and language to those outlined by Ronald Young and Brown JJ in finding Mr Siemer vexatious.15 So too Mr Siemer’s conduct recorded by Hinton J. Relevant too is Mrs Siemer’s evident reluctance to appear throughout.16 Because of this, I twice issued Minutes saying I would dismiss the claim if Mrs Siemer did not appear.17 Mrs Siemer was similarly reluctant to participate at the hearing, saying more than once, oral argument was unnecessary because, “It’s all in the papers”. Yet, when encouraged to make her case orally,
15 See, for example, Attorney-General v Siemer [2014] NZHC 859 at [18] and [77].
16 The District Court appeal was heard on the papers at Mrs Siemer’s request. Most litigants in person are understandably anxious to be heard.
17 Minutes of 1 November 2018 and 5 February 2019.
Mrs Siemer was both polite and articulate.18 Vexatious litigants may not litigate by proxy.
[15] Fourth, nothing in the proposed review presents as arguable. Mrs Siemer was heard in both the Disputes Tribunal and District Court. Mr Luke’s conduct does not give rise to cause for concern. Rather, the transcripts imply patience and care. The only argument that might have been raised—again, helpfully addressed by Mr Butler in his (written) submissions—is that a decision to treat a disqualification application as beyond jurisdiction appears inconsistent with ss 5(2) and 44 of the Disputes Tribunal Act 1988.19 But, that application lacked merit in any event.
[16]Fifth, judicial review of the Disputes Tribunal “is not lightly entertained”.20
Result
[17]Leave is refused.21
……………………………..
Downs J
18 Mr Siemer sat in the public gallery for some of the (brief) hearing.
19 The same is likely true of the District Court’s treatment of the point.
20 Wright v Wright [2017] NZHC 3053 at [11].
21 Senior Courts Act 2016, s 169(6).
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