Siemer v Judicial Conduct Commissioner
[2014] NZHC 596
•27 March 2014
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2013-485-985 [2014] NZHC 596
BETWEEN VINCENT ROSS SIEMER Plaintiff
ANDJUDICIAL CONDUCT COMMISSIONER
First Defendant
RODNEY HANSEN Second Defendant
CIV-2013-485-1369
BETWEEN VINCENT ROSS SIEMER Plaintiff
ANDJUDICIAL CONDUCT COMMISSIONER
First Defendant
DAVID HARVEY Second Defendant
Hearing: 26 March 2014
Counsel: Plaintiff in person
L Theron for First Defendant
Judgment: 27 March 2014
JUDGMENT OF THE HON JUSTICE KÓS
[1] The Judicial Conduct Commissioner seeks security for costs against
Mr Siemer.
[2] Mr Siemer has commenced two judicial review proceedings against decisions of the Commissioner. The first (proceeding 985) seeks judicial review of the
SIEMER v JUDICIAL CONDUCT COMMISSIONER [2014] NZHC 596 [27 March 2014]
Commissioner’s decision to dismiss Mr Siemer’s complaint about Hansen J excluding him from the courtroom during the argument of a procedural point in the “Urewera Four” trial in 2012. Mr Siemer had asserted that he was a media representative entitled to remain (along with other members of the media). Hansen J permitted the other persons to remain, but not Mr Siemer. Mr Siemer complained to the Commissioner. The Commissioner dismissed the complaint as lying outside his jurisdiction. That was because it called into question an “instruction”, “direction” or “other decision” given by a Judge “in relation to any legal proceeding”. Section 8(2) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (the Act) expressly excludes Commissioner jurisdiction in such cases.
[3] In the second (proceeding 1369), Mr Siemer seeks judicial review of a decision by the Commissioner to take no further action in respect of a complaint about Judge Harvey. In a District Court proceeding brought by Mr Siemer, Judge Joyce had required him to provide security for costs. Mr Siemer sought “reconsideration” of that decision. That came before Judge Harvey. In the course of the hearing there was this passage:
THE COURT:
I’m not defending Judge Joyce. Judge Joyce is perfectly capable of defending himself. I’m making an observation Mr Siemer and you better be very careful where you go, I know you’re familiar with contempt of Court proceedings and you may not be aware of the decision in the case of Mihaka where the abuse of a judge, of one Judge A to another Judge B was deemed to be contempt of Court, so tread carefully sir, tread carefully.
MR SIEMER:
I’m sorry sir, if I offended Your Honour, all I was simply saying –
THE COURT:
You haven’t offended me, your contempt was directed towards Judge Joyce. He doesn’t need any defence. Now let’s move on shall we, put that to one side.
Mr Siemer complained that the Judge’s conduct was “personally disrespectful, threatening me with contempt in the face of the Court with no justification”. The Commissioner determined to take no further action in respect of that complaint. The Commissioner said in his decision:
… Judge Harvey did not threaten the complainant with contempt of Court. He warned the complainant to be careful in the comments he was making about Judge Joyce and, to avoid the complainant straying into contempt of Court territory, encouraged him to move on.
[4] Should this Court order Mr Siemer to pay security for costs?
Issues arising
[5] Four issues arise under r 5.45 of the High Court Rules:
(a) Issue 1: Is there reason to believe Mr Siemer will be unable to pay the Commissioner’s costs if Mr Siemer is unsuccessful in his proceedings?
(b) Issue 2: How should the discretion under r 5.45(2) be exercised? (c) Issue 3: What amount of security for costs should be fixed?
(d) Issue 4: Should a stay be ordered?
Issue 1: Is there reason to believe Mr Siemer will be unable to pay the
Commissioner’s costs if Mr Siemer is unsuccessful in his proceedings?
[6] There is no question that the Commissioner has met this threshold requirement. Mr Siemer, in his written submissions, says:
The plaintiff, simply to obtain a hearing, does not have $20,000 to cover the Commissioner’s anticipated legal costs to opposed judicial review of his decision. The Commissioner knows this and the Court knows this.
That apart, there is ample evidence that Mr Siemer claims to be impecunious.
[7] I note Ms Theron’s submissions (for the Commissioner) that that is a mere assertion by Mr Siemer. There is no evidence of actual impecuniosity. That is material to Issue 2. A question arising there is whether the effect of awarding security now would be to stifle potentially meritorious proceedings.
Conclusion
[8] The answer to Issue 1 is “yes”.
Issue 2: How should the discretion under r 5.45(2) be exercised?
[9] How the discretion under r 5.45(2) should be exercised has been the subject of numerous decisions. It is not necessary to set them out in any detail here. In Highgate on Broadway Ltd v Devine I set out a list of 11 considerations that could be drawn from the authorities.1 Some in favour of the ordering of security, some against, and some neutral. There are, I think, four considerations that are most relevant here:
(a) Is the plaintiff’s substantive claim prima facie unmeritorious?
(b)Would the denial of security in the circumstances of this litigation be oppressive to the reasonable interests of the defendants?
(c) Is it reasonably probable that the impecuniosity was caused by the defendants?
(d)Would ordering security deprive the plaintiff of the capacity to advance a prima facie meritorious claim?
Is the plaintiff ’s substantive claim prima facie unmeritorious?
[10] The Commissioner submits that Mr Siemer’s two proceedings are fundamentally unmeritorious. The Court will not predetermine the question of merits, or form more than “an impression”.2 But if a prima facie case can be established that the plaintiff’s claim is unmeritorious, that is a factor in favour of ordering security.
[11] In proceeding 985 it is clear that Mr Siemer’s claim (based as it is upon
alleged error of law, failure to take into account relevant considerations and
1 Highgate on Broadway Ltd v Devine [2012] NZHC 2288, [2013] NZAR 1017.
2 AS McLachlan Ltd v MEL Network Ltd (2002) 16 PRNZ 747 (CA) at [21].
procedural impropriety) has little, if any, prospect of success. The decision of Hansen J not to treat him as an accredited news media representative, entitled to remain in the courtroom during a procedural argument in a criminal trial, is plainly an “instruction”, “direction” or “other decision” made by the Judge “in relation to a legal proceeding”. The Commissioner had no jurisdiction to consider that claim. If Mr Siemer was aggrieved, his rights of recourse lay in the substantive criminal proceeding or in a separate declaratory proceeding. It could not lie in any purported complaint to the Commissioner (or judicial review therefrom).
[12] Proceeding 985 is prima facie unmeritorious.
[13] In proceeding 1369 the grounds of review alleged are error of fact amounting to error of law (in relation to the Commissioner’s conclusion that Judge Harvey did not threaten Mr Siemer with contempt of court), and failure to take into account a relevant consideration (being the “plain language” used by the Judge, recorded in the transcript). Section 15A of the Act confers a broad discretion on the Commissioner to take no further action in respect of a complaint. Section 15A(2) sets out a number of examples. But they are non-exhaustive: s 15A(4). I agree with Ms Theron’s submission that the challenge mounted here is one as to the formation of an opinion. To be susceptible to judicial review, it must be shown that the finding of the Commissioner was not open to him or was so aberrant that it cannot be classed as
rational.3 It is a very high standard. The clear impression I have is that Mr Siemer is
very unlikely to meet it in this proceeding.
[14] Proceeding 1369 is prima facie unmeritorious.
Would the denial of security for costs in the circumstances of this litigation be oppressive to the reasonable interests of the defendants?
[15] I turn to the second consideration. Previous costs awards in favour of the
Commissioner against Mr Siemer have gone unpaid. They now amount to
$25,633.17. Ms Theron notes that Mr Siemer has filed eight judicial review proceedings against the Commissioner. Five have been struck out; the sixth was
3 Edwards v Bairstow [1956] AC 14 (HL); R v Monopolies and Mergers Commission, ex parte South Yorkshire Transport Ltd [1993] 1 WLR 23 (HL); Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [54]–[55].
dismissed by summary judgment. Only the present two proceedings remain extant. Ms Theron submits that it would now be unfair for Mr Siemer to pursue further litigation against the Commissioner without providing the protection of security for costs. As Ms Theron put it:
In this case the unfairness is to the public purse, rather than to an individual. Although the detriment is diffuse, it is nonetheless real.
With that submission I agree.
Is it reasonably probable that the impecuniosity was caused by the defendants?
[16] There is no basis in this case to suggest that the Commissioner has been in any respect responsible for the impecuniosity Mr Siemer says he labours under. Nor did Mr Siemer submit that was the case.
Would ordering security deprive the plaintiff of the capacity to advance a prima facie meritorious claim?
[17] Given my finding on the first sub-issue, this consideration does not arise.
Conclusion
[18] It follows that the circumstances of this case, involving prima facie unmeritorious claims against the Commissioner, coupled with oppression by reason of Mr Siemer’s failure to pay costs in the past, means that security for costs should be ordered.
Issue 3: What amount of security for costs should be fixed?
[19] Scale costs in respect of each proceeding have been calculated at $23,880. Mr Siemer does not contest the calculation. The Commissioner seeks, at this stage, a more conservative amount of $10,000 in each proceeding. That is because he intends to apply for strike-out or summary judgment in respect of each proceeding. But he seeks leave to renew his application if such security proves insufficient.
[20] I accept that the amount sought is a proper basis for an award at this stage. I
will reserve leave for the Commissioner to renew his application on notice.
Issue 4: Should a stay be ordered?
[21] The norm is for a stay to be granted pending the order for security being met. There is no reason in this case why the norm should be dislodged.
[22] Each proceeding will be stayed until the security ordered is given.
Result
[23] There will be orders for security for costs, in the sum of $10,000, in each proceeding.
[24] Leave is reserved to the Commissioner to renew his application on notice.
[25] Orders are made staying each proceeding until Mr Siemer pays the security sums ordered into Court.
[26] For completeness, an order is made extending the time for the filing of a statement of defence until seven days after security is paid.
[27] The Commissioner is entitled to costs on the present application on a category 2 band B basis.
Stephen Kós J
Solicitors:
Gault Mitchell Law, Wellington for First Defendant
And to:
The plaintiff
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