Siemer v Judicial Conduct Commissioner - [2014] NZHC 2878

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-6545 [2014] NZHC 2878

UNDER the Judicature Amendment Act 1972

IN THE MATTER OF

a decision under s 16 of the Judicature Conduct Commissioner and Judicial Conduct Panel Act 2004

BETWEEN

VINCENT ROSS SIEMER Plaintiff

AND

JUDICIAL CONDUCT COMMISSIONER

First Defendant

ROBERT DOBSON Second Defendant

Hearing: 9 September 2014

Counsel:

V R Siemer in person
L Theron for First Defendant
No appearance for Second Defendant

Judgment:

19 November 2014

JUDGMENT OF WILLIAMS J

[1] On 19 May 2014, Mr Siemer filed an application for judicial review against the Judicial Conduct Commissioner and Dobson J. It argues that Dobson J failed to disclose his relationship with the Judicial Conduct Commissioner as former partners in the same law firm. He alleged the Judge thus had a conflict of interest which prevented him from involvement in Mr Siemer’s separate proceedings in Siemer v Judicial Conduct Commissioner (and the then Judges of the Supreme Court) (CIV-2012-485-2419). The application for judicial review was accepted in the
Wellington High Court Registry on 22 May 2014, and allocated a proceeding

SIEMER v JUDICIAL CONDUCT COMMISSIONER & ANOR [2014] NZHC 2878 [19 November 2014]

number. It should not have been given a proceeding number without leave being granted.

[2] In light of the judgment of Ronald Young and Brown JJ in Attorney-General v Siemer1 declaring Mr Siemer to be a vexatious litigant under s 88B of the Judicature Act 1908, Mr Siemer also filed an application for leave to file the proceedings in CIV-2014-485-6545 on 19 May. The application for leave should have been given a proceeding number but not the substantive application for review itself.

[3] In any event, that application for leave came before Clifford J in the Wellington Chambers’ List of 7 July 2014, but the Judge recused himself because the Judicial Conduct Commissioner was a personal acquaintance of his. Clifford J directed that the matter be set down before a different Judge. On 9 September 2014, the matter then came before me in my capacity as Duty Judge. By consent, I heard the matter by way of teleconference, Mr Siemer being resident in Auckland and the cost of travel being prohibitive for him.

[4] Ms Theron, for the first defendant, filed a memorandum and sought clarification of her role in light of the different procedures by which the courts have dealt with previous applications under s 88B of the Judicature Act. She too joined the teleconference.

[5] Ms Theron’s memorandum was intended to assist rather than advocate. I am grateful for that assistance. That said, I found the decision of Randerson J in Re Collier the most useful guide to appropriate procedure.2 Applications for leave under s 88B are generally dealt with on an ex parte basis but the Court always has the inherent jurisdiction to hear from affected parties if necessary. It may be argued that defendants have a right to be heard if the Court is minded to grant leave but not

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.

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Details

Case: [2014] NZHC 2878
Decision Date: 19 November 2014

CaseChat Overview and Summary

In this case, the plaintiff, Vincent Ross Siemer, filed an application for judicial review against the Judicial Conduct Commissioner and Justice Dobson, claiming that Justice Dobson had a conflict of interest due to his past professional relationship with the Commissioner. Siemer alleged that this conflict of interest prevented Justice Dobson from impartially handling his separate proceedings against the Commissioner and the Judges of the Supreme Court. The Wellington High Court accepted the application for judicial review on 22 May 2014, but the court determined that the plaintiff should not have been granted a proceeding number without leave being granted, as per the provisions of the Judicature Act 1908.

The court needed to decide if the plaintiff, who had been declared a vexatious litigant, was entitled to leave to file the proceedings. The court also had to determine whether there was a prima facie case for the plaintiff's claims of bias on the part of Justice Dobson and if granting leave would result in an abuse of the court's process.

The court concluded that granting leave would be an abuse of the court's process, as the plaintiff's current iteration of attacks on the judiciary was a derivative of the proceedings roundly criticised by the court in previous judgments. Furthermore, the court found that the plaintiff's application lacked a good prima facie basis for two reasons: first, Justice Dobson stepped aside from the case upon receiving Siemer's complaint about the Judge's allegedly biased treatment; second, the Judicial Conduct Commissioner stated that the business relationship between Dobson J and the Commissioner was now very remote and would not arouse a reasonable apprehension of bias in a fair-minded observer.

Based on these findings, the court declined the application for leave, stating that the proceeding was vexatious and an abuse of the court's process, with no prima facie case established.

The final orders were as follows: the application for leave was declined, and the proceeding number allocated to the plaintiff's application for judicial review was removed from the court's records.

Orders