Siemer v Judicial Conduct Commissioner
[2014] NZHC 2878
•19 November 2014
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 DefendantJudgment:
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
otherwise. Such procedure is consistent with the underlying purpose of the s 88B
regime – that is to protect defendants from becoming embroiled in pointless and meritless proceedings and to conserve limited judicial resources.3
[6] In the present case, I am clear that leave should not be granted. It was therefore unnecessary for me to hear from Ms Theron.
[7] Mr Siemer submitted that:
(a) since the Registry had given his application a proceeding number;
(b)since it had been in the system for four months before appearing on the Chambers List presided over by Clifford J; and
(c) since it had been before both that Judge and myself–
it was now a fait accompli that leave had been granted, at least in a de facto fashion.
[8] That cannot be right. The order made by Ronald Young and Brown JJ was (relevantly) that Mr Siemer could not institute any proceedings in the High Court against any judge of the High Court, or the Judicial Conduct Commissioner without leave of the High Court.4
[9] The High Court, according to s 4(1) of the Judicature Act consists of: (a) a Judge called the Chief Justice of New Zealand; and
(b)the other Judges, up to a maximum of 55, who are from time to time appointed.
[10] Leave can therefore only be given by a judge of the High Court. Acceptance of a proceeding for filing cannot therefore amount to leave. Nor can actual comments made by judges in managing an application for leave. Rather, leave is not
granted (or declined) until a judge has applied his or her mind to the relevant questions under s 88B(2) as follows:
Leave may be granted subject to such conditions (if any) as the court or Judge thinks fit and shall not be granted unless the court or Judge is satisfied that the proceeding is not an abuse of the process of the court, and that there is prima facie ground for the proceeding.
[11] It is for me to consider whether, in terms of that provision, I am satisfied that the proceeding is not an abuse of the process of the Court, and that there is prima facie ground for the proceeding.
[12] It is clear to me that the test in s 88B is not met.
[13] As to the first leg, I am satisfied that to allow the matter to proceed would be an abuse of the process of this Court. The proceeding for which leave is sought relates to the way in which Dobson J managed the latest iteration of his twin proceedings (CIV-2012-485-2419 and CIV-2012-485-2546) against the Judicial Conduct Commissioner and the then Judges of the Supreme Court. Those two proceedings in turn related to separate earlier proceedings brought against the Judicial Conduct Commissioner in relation to the way in which the Commissioner responded to complaints Mr Siemer lodged about the conduct of the Chief Justice
and four other Judges of the Supreme Court.5
[14] Mr Siemer appealed the summary judgment of Toogood J in those earlier proceedings, dismissing the application for review. Mr Siemer then appealed to the Court of Appeal, applied for, and was declined, dispensation from security for costs, first by the Registrar of the Court of Appeal and then by Wild J. A further application was then filed to recall Wild J’s determination in that respect. The application was declined by the Judge. Mr Siemer then applied for leave to appeal Wild J’s declinature to the Supreme Court. Leave was declined. An application was then made in the Supreme Court to recall that judgment and that further application
was declined too.
5 Siemer v Judicial Conduct Commissioner [2012] NZHC 1481.
[15] All of this background is set out in the earlier judgment of Ronald Young and Brown JJ from [177] to [187]. Their Honours concluded on reviewing that lengthy history of litigation (itself only a subcategory of the multitudinous proceedings brought by the applicant) as follows:6
We are satisfied that this proceeding was vexatiously instituted and continued. The proceeding against the Judicial Complaints Commissioner was essentially an attempt to relitigate the Supreme Court’s decision in Siemer v Heron. The cause of action against the Supreme Court Judges was a similar attempt to relitigate litigation which had already been finally resolved.
(citation omitted)
[16] I have traversed this material because it demonstrates that the proceeding for which leave is sought in this application, is in fact a derivative of the proceedings roundly criticised by Ronald Young and Brown JJ in that judgment. That is, the current proceeding relates to the way in which Dobson J dealt with proceedings commenced against the same parties as those involved in previous litigations declared by this Court to be vexatious. It follows, indeed inexorably so, that the current iteration of Mr Siemer’s attacks on the judiciary directly, or through the Judicial Conduct Commissioner, is an abuse of process just as those that preceded it were.
[17] Secondly, it is equally clear that the application lacks a good prima facie basis. This is for two reasons. First, upon receiving Mr Siemer’s complaint about the Judge’s allegedly biased treatment of the application in his minute of 13 March
2013, Dobson J stepped aside. The learned Judge said:7
In view of the objection he [Mr Siemer] has taken, I will direct the Registry to allocate determination of the strike out application to another judge. Whoever that may be will no doubt ignore the rehearsal of potential issues that I sketched in the circumstances as I saw them, and deal with the strike out application on the basis of the issues raised by the parties.
[18] The issue raised by Mr Siemer became moot at that point.
6 Attorney General v Siemer, above n1, at [187].
7 Minute of 26 March 2013, CIV-2012-485-2419 and CIV-2012-485-2546.
[19] The second point relates to the substantive challenge. As the Judicial
Conduct Commissioner recorded in his decision on the complaint dated 12 May
2014, the business relationship between Dobson J and the Commissioner is now very remote. The Commissioner said:
The facts are that Justice Dobson and I were partners in a Wellington law firm for a period of six to seven years in the 1980s. Our professional association ceased 24 years ago, in 1990, when Justice Dobson left for the independent bar. We have had no ongoing contact since then, as Justice Dobson acknowledged at the 31 October 2013 teleconference. We “run into” each other about once a year.
There is no current association that should prevent me considering the complaints against Justice Dobson. I consider that my past association is so remote that it would not arouse a reasonable apprehension of bias in a fair minded observer.
[20] There cannot, in my view, be any question but that this analysis is correct. It follows that no prima facie case is established.
[21] Application for leave is declined accordingly.
Williams J
Solicitors:
Gault Mitchell Law, Wellington
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