Siemer v Harvey - [2012] NZHC 1434

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-7890 [2012] NZHC 1434

BETWEEN VINCENT ROSS SIEMER Plaintiff

ANDDAVID HARVEY First Defendant

ANDATTORNEY GENERAL OF NEW ZEALAND
Second Defendant

Hearing: 20 June 2012

Appearances: Plaintiff in Person
MD Downs for First and Second Defendants

Judgment: 22 June 2012

JUDGMENT OF TOOGOOD J

[REVIEW OF COSTS DECISION OF DOOGUE AJ ON DISCONTINUANCE
OF PROCEEDING]
This judgment was delivered by me on 22 June 2012 at 11:00 am
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

V Siemer, 27 Clansman Tce, Gulf Harbour: vsiemer@hotmail.com
MD Downs, Crown Law, Wellington: Mathew.downs@crownlaw.govt.nz

SIEMER V HARVEY & ANOR HC AK CIV-2010-404-7890 [22 June 2012]

[1] The plaintiff has applied under s 26P(1) of the Judicature Act 1908 for a review of a costs order made against him by an Associate Judge.1

[2] On 25 November 2012, Mr Siemer filed a statement of claim in this Court seeking general damages of $25,000 and exemplary damages of $10,000 against the first defendant, a District Court Judge. The Attorney-General was sued “as the figurative Crown legal representative of New Zealand, for alleged legal abuses by the first defendant.”

[3] It is sufficient for present purposes to record that the claim against Judge Harvey and the Attorney-General related to a decision of the Judge to dismiss an application by Mr Siemer, in connection with proceedings issued by him in the District Court at Auckland, to vary or set aside an order requiring payment of
$20,000 by way of security for costs.

[4] The essence of the damages claim was an allegation that the Judge had breached the principles of natural justice in contravention of Mr Siemer’s rights under s 27 of the New Zealand Bill of Rights Act 1990, and that claims for general and exemplary damages were available as a result. In his case management memorandum filed in advance of a telephone conference to be held on
22 March 2011 by Christiansen AJ, Mr Siemer described the claim for damages as

one “in statute, affirmed by recent precedent.”

[5] Mr Siemer’s reference to “recent precedent” was a reference to the judgment of the Court of Appeal in Chapman v Attorney-General.2 An appeal from that decision was then before the Supreme Court for determination, the argument having been heard in December 2010 and judgment being awaited.

[6] In their statement of defence dated 31 January 2011, the first and second defendants pleaded the following affirmative defences:

(a) the allegations against Judge Harvey were barred by virtue of the immunity of District Court Judges from suit;

(b)to the extent that the plaintiff made allegations of vicarious liability against the Attorney-General, the first defendant was exercising responsibilities of a judicial nature and accordingly the allegations were barred by virtue of s 6(5) of the Crown Proceedings Act 1950;

(c) the proceeding was an abuse of process because the plaintiff had exercised his right to appeal to the High Court against Judge Harvey’s decision of 22 September 2010, the decision…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Siemer v Harvey

Details

AGLC: Siemer v Harvey [2012] NZHC 1434
Case: [2012] NZHC 1434
Decision Date: 22 June 2012

CaseChat Overview and Summary

The plaintiff, Mr Siemer, sought a review of a costs decision made against him by an Associate Judge under the Judicature Act 1908. The plaintiff had filed a statement of claim against a District Court Judge and the Attorney General, seeking damages for alleged breaches of natural justice. The defendants argued that the plaintiff's claim was barred by the immunity of District Court Judges and that the claim for damages was not available in law. The parties deferred further steps in the proceeding pending the outcome of an appeal to the Supreme Court in a related case. After the Supreme Court delivered its judgment, the plaintiff sought to withdraw his claim without prejudice and have it referred to the Judicial Conduct Commissioner. The defendants opposed the withdrawal and sought costs under the High Court Rules.

The legal issues before the court were whether the plaintiff acted reasonably in commencing the proceeding and whether a particular defendant acted reasonably in defending it, and if the normal presumption of awarding costs to the defendant should be displaced on the basis of just and equitable circumstances. The court considered the arguments of the plaintiff that the proceeding was issued pursuant to his statutory right to claim damages under the New Zealand Bill of Rights Act 1990, and that it would be unjust for the Crown to benefit financially from a retrospective ruling. The court found that the proceeding was misconceived from the outset as the plaintiff had extant rights of appeal against the District Court decision, and that the Supreme Court’s judgment did not deprive Mr Siemer retrospectively of any pre-existing right to sue. The court also found that there was no reason to come to a different view on awarding costs to the Crown than to a private litigant.

The court confirmed the order for the plaintiff to pay $7,708.00 in costs and $104.21 in disbursements to the defendants. The court held that the plaintiff's arguments did not establish just and equitable circumstances to displace the normal presumption of awarding costs to the defendants. The court found that the proceeding was misconceived from the outset and that the plaintiff did not have a pre-existing right to sue that was deprived by the Supreme Court’s judgment. The court also found that there was no reason to come to a different view on awarding costs to the Crown than to a private litigant. The costs claimed were calculated in accordance with the High Court Rules.

Orders