Siemer v Legal Complaints Review Officer

[2022] NZHC 1575

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000099

[2022] NZHC 1575

UNDER

the Judicial Review Procedure Act 2016,

s 27 of the New Zealand Bill of Rights Act 1990 and the Lawyers and Conveyancers Act 2016

IN THE MATTER OF

a judicial review

BETWEEN

VINCENT ROSS SIEMER

Applicant

AND

LEGAL COMPLAINTS REVIEW OFFICER

First Defendant

CLAYTON LUKE

Second Respondent

JANE SIEMER

Third Respondent

Hearing:	On the papers
Judgment:	4 July 2022

JUDGMENT OF HARLAND J

(Request for transcript)

This judgment was delivered by Justice Harland On 4 July 2022 at 4.00 pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/Counsel:

Crown Law, Wellington K M Muller, Auckland

Copy to: Applicant and Third Respondent

SIEMER v LEGAL COMPLAINTS REVIEW OFFICER [2022] NZHC 1575 [4 July 2022]

[1]                  Mr Siemer has applied for access to the audio transcript of a hearing in respect of this matter conducted before me on 4 March 2022.1 Mr Siemer agrees to pay the reasonable costs associated with producing the audio transcript. It appears he wishes to have access to the audio transcript to advance his appeal to the Court of Appeal from my costs judgment dated 3 May 2022.

[2]                  Mr Siemer applies for the audio transcript under r 9 of the Senior Courts (Access to Court Documents) Rules 2017. That rule provides:

(1)The parties to a civil proceeding and the parties’ lawyers may, under the supervision of the Registrar or a person appointed by the Registrar,—

(a)search and inspect the court file or any document relating to the proceeding, without paying a fee; and

(b)copy any part of the court file or any document relating to the proceeding on paying the prescribed fee (if any).

[3]                  Under r 9(5)(a), Mr Siemer requires permission to have access to “a record of the court proceeding in electronic form”. Under r 12, I must consider the nature of and reasons for the request including, among other things, the principle of open justice.

[4]                  In general, the factors to be balanced are outlined in Prestige Motors Ltd v My Trustee Company (Nikolas and Petra) Ltd):2

(a)Whether the transcript is likely to contain relevant information which will have an effect on the proceeding in the future (i.e. on appeal).

(b)Any delay in bringing the application.

(c)The likely cost (the longer the transcript, the less likely it will be provided and vice versa).

(d)The issues on appeal (if the appeal focusses on the Judge’s reasons, the transcript will be unnecessary).

1      Memoranda of Mr Siemer filed 4 March and 11 May 2022.

2      Prestige Motors Ltd v My Trustee Company (Nikolas and Petra) Ltd [2022] NZHC 319.

[5]                  In Power v White, access to the transcript of a hearing was denied as, at the hearing, the applicant had made his submissions, then interrupted the respondent’s submissions and left early.3 In any event, the proposed appeal concerned security for costs decisions made long before the hearing. Nothing said at the hearing could possibly have supported an appeal.

[6]                  In Tomar v Khatri, the Court of Appeal denied the applicant access to a court transcript, as the applicant had not explained how the transcript might support his appeal.4

[7]In Siemer v Heron the Supreme Court said: 5

There are obvious resource implications if judges direct court registries to provide parties with transcripts of hearings of appeals and interlocutory matters generally on demand by litigants. For that reason, judges should always first satisfy themselves that there is good reason in the interests of justice for giving such directions.

[8]                  In that case, the High Court Judge deferred Mr Siemer’s request for the transcript until after his submissions for leave to appeal were filed. This decision was upheld by the Supreme Court.

[9]In this case, the appeal is against my costs judgment.

[10]              I had previously declined the second respondent leave to file a statement of defence out of time but adjourned the substantive formal proof hearing. I then awarded costs to Mr Siemer on the leave application but declined to award a travel reimbursement for the formal proof hearing. I found it would be unfair to do so as the second respondent was not responsible for, and could not have anticipated, my reserving judgment on the leave application.6

[11]              In his memoranda, Mr Siemer explains how the transcript might support an appeal. He submits counsel for the second respondent admitted to not having

3      Power v White [2022] NZCA 116.

4      Tomar v Khatri [2022] NZCA 119.

5      Siemer v Heron [2011] NZSC 116, [2012] 1 NZLR 293 at [9].

6      Siemer v Legal Complaints Review Officer [2022] NZHC 908 at [28].

considered providing a statement of defence, and then gave evidence from the bar, aided by my eliciting useful information from her.

[12]              Mr Siemer submits this contradicts my finding that the adjournment of the formal proof hearing was unexpected and not the fault of the respondent.

Discussion

[13]              It is unclear if the transcript is likely to contain information relevant to the appeal. Mr Siemer notes counsel for the second respondent made similar remarks in her written submissions. However, he submits the words used by counsel at the hearing, as well as my questions to counsel, will add to the appeal.

[14]There was no delay in bringing the application.

[15]              It is likely no transcript exists.7 A transcript will therefore need to be made. The hearing was relatively short, so the transcript will not be extensive. Mr Siemer has agreed to pay the reasonable costs associated with producing the transcript.

[16]              Mr Siemer has explained why he seeks access to the transcript: the exact grounds of appeal he considers it will support, and which aspects of the transcript will support those grounds. Given the matters he refers to in [12] in my view it is reasonable for the transcript to be provided.

[17]              On balance, I consider it is appropriate to grant Mr Siemer’s application for access to the transcript of the hearing of 4 March 2022. The transcript will be released to Mr Siemer upon payment of the prescribed fee.

Harland J

7      Tomar v Khatri [2022] NZCA 61 at [4].