Siemer v Judicial Conduct Commissioner - [2014] NZCA 358

IN THE COURT OF APPEAL OF NEW ZEALAND

CA173/2014
[2014] NZCA 358

BETWEEN	VINCENT ROSS SIEMER Appellant
AND	JUDICIAL CONDUCT COMMISSIONER First Respondent
RODNEY HANSEN Second Respondent
DAVID HARVEY Third Respondent

Counsel:

Appellant in person
D J Goddard QC, L Theron and A J Wicks for First Respondent
A M Powell for Second and Third Respondents

Judgment:

(On the papers)

30 July 2014 at 10.00 am

JUDGMENT OF WHITE J

AThe appellant’s application under s 61A(1) of the Judicature Act 1908 for an order that security for costs be dispensed with is declined.
BThe appellant’s application under s 61A(3) of the Judicature Act and r 7(2) of the Court of Appeal (Civil) Rules 2005 for review of the Deputy Registrar’s decision refusing to dispense with security for costs is dismissed.
CThe time for the appellant to pay security for costs is extended to 15 August 2014.
DNo date for the hearing of the appeal is to be allocated unless the security for costs of $5,880 is paid on or before 15 August 2014.

____________________________________________________________________

REASONS

The appellant, Mr Siemer, has appealed against a High Court judgment of Kós J ordering him to pay security for costs of $10,000 each in two proceedings in that Court challenging decisions of the first respondent, the Judicial Conduct Commissioner (the JCC).[1]
[1]Siemer v Judicial Conduct Commissioner [2014] NZHC 596.
The first High Court challenge relates to a decision of the JCC dismissing Mr Siemer’s complaint against the second respondent, the Hon Justice Hansen (as he was at the time), who decided not to treat Mr Siemer as an accredited news media representative (with the result that he was not entitled to remain in the courtroom during a procedural argument in a criminal trial). Kós J considered that the challenge was prima facie unmeritorious because the JCC did not have jurisdiction to entertain a complaint about an “instruction”, “direction” or “other decision” made by a Judge.[2]
[2]At [12].
The second High Court challenge relates to a decision of the JCC to take no further action in relation to a complaint that the third respondent, Judge Harvey, was personally disrespectful and threatened Mr Siemer with contempt in the face of the Court with no justification. Kós J considered that this challenge was also prima facie unmeritorious because the JCC had a broad discretion to take no further action in respect of a complaint and Mr Siemer was unlikely to be able to meet the high standard required to judicially review the formation of an opinion.[3]
[3]At [14].
Mr Siemer filed his notice of appeal dated 31 March 2014 against Kós J’s security for costs decision on 1 April 2014. At the same time he applied to the Registrar of this Court for an order dispensing with security for costs.
The JCC opposed Mr Siemer’s application for dispensation with security for costs.
On 14 April 2014 the Deputy Registrar of this Court declined to make an order dispensing with security for costs, set at $5,880.

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] NZCA 358
Decision Date: 30 July 2014 at 10.00 am

CaseChat Overview and Summary

The appellant, Vincent Siemer, appealed against a High Court judgment that ordered him to pay security for costs of $10,000 in two proceedings against the Judicial Conduct Commissioner (JCC), the second and third respondents being Justice Hansen and Judge Harvey respectively. The appeal was heard by White JA. The primary issues before the court were whether an order should be made dispensing with security for costs and whether the Deputy Registrar's decision to refuse to dispense with security for costs should be reviewed.

White JA noted that the appellant had not provided evidence of his financial circumstances or the financial circumstances of any related family trust or relative, and therefore had failed to establish his impecuniosity. The court found that a solvent appellant would not reasonably wish to prosecute the appeal, and that the appeal was vexatious. The court found Mr Siemer's conduct of the litigation unreasonable and tendentious, and that he had made extreme claims against others involved in the case. The court was also satisfied that it would be unjust to require the JCC to defend the High Court judgment without the protection of security.

The court declined the appellant's application under s 61A(1) of the Judicature Act 1908 for an order that security for costs be dispensed with, and dismissed the appellant's application under s 61A(3) of the Act and r 7(2) of the Court of Appeal (Civil) Rules 2005 for review of the Deputy Registrar's decision refusing to dispense with security for costs. The time for the appellant to pay security for costs was extended to 15 August 2014. No date for the hearing of the appeal would be allocated unless the security for costs of $5,880 was paid on or before 15 August 2014.

Orders