Siemer v Legal Complaints Review Officer

[2022] NZHC 834

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-0099

[2022] NZHC 834

BETWEEN

VINCENT ROSS SIEMER

Plaintiff

AND

LEGAL COMPLAINTS REVIEW OFFICER

First Respondent

CLAYTON LUKE

Second Respondent

JANE SIEMER

Third Respondent

Hearing:

Dealt with on the papers

(Memoranda dated 24 and 28 March 2022)

Counsel:

Plaintiff self-represented

K M Muller for second respondent

Judgment:

28 April 2022

JUDGMENT OF HARLAND J

[Request for recall of judgment]

This judgment was delivered by me on 28 April 2022 at 11:00 am Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar  Date……………………………..

Counsel/Solicitors:

Crown Law, Wellington Meredith Connell, Auckland K Muller, Auckland

Copy to V Siemer and

J Siemer

SIEMER v LEGAL COMPLAINTS REVIEW OFFICER [2022] NZHC 834 [28 April 2022]

[1]    On 11 March 2022, following a hearing held on 4 March 2022, I issued a judgment declining Mr Luke leave to file a statement of defence to Mr Siemer’s application.1 Both parties now request recall of that judgment.

[2]    Both parties claim that a single error of fact in the judgment suggests heedlessness on their part, and may influence any future award of costs.

Submissions

[3]Mr Siemer objects to the following paragraph of my decision:

[31] The date for Mr Siemer to file any notice of opposition to the application for leave  and  any  other  applications  was  5:00  pm,  Friday,  25 February 2022. No formal notice of opposition has been filed.

[4]    In fact, Mr Siemer had filed a notice of opposition just before that deadline. Mr Siemer submits this suggests some heedlessness on his part and will affect his application for costs.

[5]Mr Luke consents to the request for recall.

[6]    Mr Luke also seeks “clarification, and (if necessary), correction”, of the last sentence of [56] of my decision which provided:

[56]  …  I agree, however, that various directions have been made by   Judges over the course of the proceeding for Mr Luke to [file a statement of defence].

[7]    Mr Luke notes Mr Siemer made this submission at the hearing before me, but did not provide any example of an explicit direction that he file a statement of defence.

[8]    Mr Luke submits no such direction has ever been made, that this suggests heedlessness on his part, and may be material to costs.

[9]    Mr Luke also objects to paying costs on Mr Siemer’s recall request. I deal with this point in my separate decision on costs.

1      Siemer v Legal Complaints Review Officer [2022] NZHC 440.

Law

[10]   The law of recall is summarised in this passage from Horowhenua County v Nash (No 2):2

Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled — first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court's attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.

[11]   Both parties’ requests can only fall under the third category. Recall may be granted under this category for “demonstrable, material defects that speak for themselves”,3 In other words, it may not be granted if the alleged error is in fact a challenge to a substantive finding of fact or is immaterial to the outcome.

[12]   There is little authority on recalling statements which are immaterial to the outcome of a proceeding but suggest a party was careless. In Shed4 Trading Company Ltd v Sanson Associate Judge Bell implied he would be willing to recall a judgment containing “defamatory statements” about a witness, but ultimately did not, as to allow a non-party to challenge a decision would “undermine the adversarial process”.4

[13]   Though the Court may require a party seeking recall to file a formal application, a memorandum is sufficient where the party seeks correction of an uncontentious factual error.5 Mr Siemer and Mr Luke filed memoranda requesting recall, and I am satisfied this was adequate in the circumstances.

Discussion

[14]   Neither alleged error is material to the decision, but both may be material to costs. As Mr Siemer claims increased costs, the conduct of the parties is in issue.

2      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

3      Erwood v Maxted [2020] NZCA 537 at [8].

4      Shed4 Trading Company Ltd v Sanson [2020] NZHC 2836 at [18].

5      Y v Foulkes [2014] NZCA 396, [2014] NZAR 982 at [34].

Mr Siemer’s request

[15]   Mr Siemer’s request concerns a demonstrable error that speaks for itself; the judgment says Mr Siemer did not file a notice of application when in fact he did. Mr Luke consents to the change being made. It is appropriate in my view for this request to be granted.

Mr Luke’s request

[16]   Mr Luke seeks clarification of a statement that is more open to interpretation. This requires a summary of directions made by Judges in the proceeding.

(a)On 22 April 2021, Lang J directed Mr Luke to advise whether he proposed to take active steps in the proceeding by 24 June 2021. On 28 July 2021, after Downs J granted an extension due to delays not caused by the parties, Walker J directed Mr Luke to inform the Court and other parties of his stance no later than 6 August 2021.

(b)On 19 November 2021, Woolford J pointed out that Mr Luke had advised that he would take the role of contradictor in the proceeding, but nonetheless had not filed a statement of defence. Woolford J therefore set Mr Siemer’s application down for formal proof. In a later minute of 17 December 2021, Woolford J noted that:

… if the second respondent [Mr Luke] now seeks leave to file a statement of defence under r 15.9(3), that too can be dealt with at the commencement of the hearing.

(c)On 17 February 2022, Wylie J remarked

The second respondent, Mr Luke, has taken no steps to date, notwithstanding various directions made by Judges over the course of these proceedings that he should do so by various dates that have been fixed and extended. Mr Luke is well out of time to seek leave to file a statement of defence, but he nevertheless does so.

[17]   Mr Luke is correct that he was not explicitly directed to file a statement of defence. However, he was directed to advise Mr Siemer and the Court of the position he intended to take in the proceeding, and once he clarified that he would take on the

role of contradictor in the proceedings, he did not file an application for leave to file a statement of defence until 11 February 2022. The application for leave was not accompanied by a draft statement of defence.

[18]   In fairness to Mr Luke, it is necessary to clarify paragraph [56] to reflect that he was not formally directed to file a statement of defence.

Result

[19]   Mr Siemer’s request for recall is granted. Paragraph [31] of my judgment of 11 March 2022 is to read:

[31] The date for Mr Siemer to file any notice of opposition to the application for leave and  any  other  applications  was  5:00  pm,  Friday,  25 February 2022. A formal notice of opposition was filed.

[20]   Mr Luke’s request for recall is granted.  Paragraph [56] of my judgment of  11 March 2022 is to read:

[56] Mr Thwaite next submitted that failure to file a timely statement defence is to be regarded as “a waiver of the right to participate by a statement of defence”. I am not persuaded by this argument either. The rules provide for applications for leave to file a statement of defence as has occurred in this case. I agree, however, that various directions were made by Judges over the course of the proceeding for Mr Luke to clarify the position he intended to take in the proceeding, and his application for leave to file a statement of defence dated 11 February 2022 was not accompanied by a draft statement of defence.

Harland J