Siemer v New Zealand Law Society
[2019] NZHC 3075
•25 November 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-844
[2019] NZHC 3075
UNDER the Judicial Review Procedure Act 2016 and s 27(2) of the New Zealand Bill of Rights Act 1990 IN THE MATTER
of a Judicial Review
BETWEEN
VINCE SIEMER
Applicant
AND
NEW ZEALAND LAW SOCIETY
First Respondent
CLAYTON LUKE
Second Respondent
Hearing: On the papers Appearances:
Applicant on own behalf
M McKillop for Attorney-General
Judgment:
25 November 2019
JUDGMENT OF PALMER J
The judgment was delivered by me on 25 November 2019 at 3.00pm.
Pursuant to Rule 11.5 of the High Court Rules
……………………………… Registrar/Deputy Registrar
Party/Counsel:
Applicant in person Crown Law, Wellington
SIEMER v NEW ZEALAND LAW SOCIETY [2019] NZHC 3075 [25 November 2019]
Summary
[1] On 4 March 2016, under s 88B of the Judicature Act 1908, the Court of Appeal imposed a general order on Mr Vincent Siemer restricting him from commencing any proceeding in the High Court without leave of the High Court. A rights-consistent application of the new regime for such orders under the Senior Courts Act 2016 means that an order made under it must be no longer than reasonably necessary. The 2016 Act provides for a maximum time limit of three years, unless there are exceptional circumstances justifying a maximum of up to five years. A transitional provision also provides that a s 88B order is treated as having been made under the 2016 Act.
[2] The logical and rights-consistent implication of the 2016 Act is that Parliament intended the relevant maximum time limit provided for in the 2016 Act must apply to the order made here under s 88B. Those time limits are calculated from the beginning of an order. It would be inconsistent with Parliament’s intention for this order, treated as having been made under the new regime, to be given a potentially significantly longer term, by implication, based on a transitional clause. The consequence is that the s 88B order that applied to Mr Siemer as a vexatious litigant expired three years after it was imposed, on 4 March 2019.
[3] The logical consequence of my decision on jurisdiction is that I have no jurisdiction to approve the filing of the claim Mr Siemer seeks to file. He does not require my leave. However, aspects of this claim are so troubling that they raise the question of whether Mr Siemer should be restricted from commencing civil proceedings afresh. I am minded to make an order on my own initiative. But I seek submissions from Mr Siemer, and from the Attorney-General as the initiator of the previous s 88B order if he so wishes, about that. The proceeding is stayed until resolution of that issue.
What happened?
[4] In 2014, the High Court declared Mr Siemer a vexatious litigant under s 88B of the Judicature Act 1908.1 It ordered him to obtain leave before instituting civil proceedings in relation to certain respondents and subjects.2
[5] On 4 March 2016, the Court of Appeal dismissed Mr Siemer’s appeal. It considered it was not necessary to consider a time limit on the order because the High Court had “inherent jurisdiction to revoke or vary the order at any time in the future should there be, for example, a change of circumstance rendering the order or its conditions no longer appropriate or justified”.3 The Court of Appeal also upheld the Attorney’s cross-appeal.4 It agreed that “no system of civil justice can accommodate an unrestricted right to sue remaining in the hands of a person who has demonstrated he will not accept the final judgment of the courts if he thinks it is wrong”.5 The Court considered Mr Siemer’s conduct since the order was made further supported that, as he “conducted the subsequent appeals vexatiously, continuing unabated the pattern of challenging every adverse ruling and then seeking to have final judgments recalled”.6 The Court held:7
… the High Court erred by, first, not giving counsel an opportunity to be heard on the issue of the scope of the order and, second, by failing to take into account the need to protect defendants unrelated to the core dispute. We are mindful of the importance of the right to issue proceedings and the importance of ensuring any restrictions placed on that right are limited to the minimum possible. However, in our view, having regard to the underlying purposes of s 88B identified by Mr Powell, the current order is too narrow and does not provide the necessary protections contemplated by Parliament. A general order is warranted.
[6] The Supreme Court declined leave to appeal.8 The effect was that Mr Siemer would require the leave of the High Court before commencing any proceeding in the High Court.9 Mr Siemer now seeks leave of the High Court to file an application for
1 Attorney-General v Siemer [2014] NZHC 859.
2 At [204].
3 Siemer v Attorney-General [2016] NZCA 43, [2016] NZAR 411 [Siemer (CA)] at [22].
4 At [48].
5 At [44]–[45].
6 At [45].
7 At [46].
8 Siemer v Attorney-General [2016] NZSC 75, [2016] NZAR 765.
9 Siemer (CA), above n 4, at [48].
judicial review of decisions by the New Zealand Law Society (NZLS) and Mr Clayton Luke, a barrister.
Jurisdiction
Law of vexatious litigants
[7] Until 1 March 2017, s 88B of the Judicature Act 1908 empowered the High Court, on application by the Attorney-General, to order that no civil proceeding or no civil proceeding against any particular person, may be instituted or continued by a person in any Court without leave of the High Court. To make such an order, the person had to have the opportunity to be heard and the High Court had to be satisfied that the person “has persistently and without any reasonable ground instituted vexatious legal proceedings”.
[8] Section 27 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) provides:
27 Right to justice
(1)Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law.
(2)Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.
(3)Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.
[9] In Brogden v Attorney-General, the Court of Appeal noted that recognition of “the fundamental constitutional importance of the right of access to the Courts” needs to be balanced against “the desirability of freeing defendants from the very considerable burden of groundless litigation.”10 The Court held s 88B itself is a
10 Brogden v Attorney-General [2001] NZAR 809 (CA) at [20].
reasonable limitation, under s 5 of the Bill of Rights, on the right of access to the Courts which a litigant has been found to be abusing.11 Where a s 88B order is made, the litigant’s access to the courts is not denied but “the High Court is able to act as a gatekeeper or supervisor to ensure that the processes of the Courts are not abused”.12
[10] From 1 March 2017, s 166 of the Senior Courts Act 2016 has empowered the High Court to make three types of order restricting the commencement or continuation of civil proceedings, including a “general order” similar in effect to those under s 88B. But the exercise of the discretion is more carefully calibrated in terms of the subject matter as well as the targets of restrictions. Sections 166 and 167 empower the Court to make either:
(a)a limited order, which restrains the person from commencing or continuing civil proceedings on a particular matter, if the judge considers the person has commenced or continued at least two proceedings about the same matter in any court or tribunal that are or were totally without merit;
(b)an extended order, which restrains the person from commencing or continuing civil proceedings on a particular or related matter, if the judge considers the person has commenced or continued at least two proceedings about any matter in any court or tribunal that are or were totally without merit; or
(c)a general order, which restrains the person from commencing or continuing any civil proceeding, if the judge considers the person has commenced or continued at least two proceedings about any matter in any court or tribunal that are or were totally without merit.
[11] Under s 169, a party to any proceeding may apply for a limited or extended order, but only the Attorney-General may apply for a general order. Alternatively, the High Court may make a limited, extended or general order on its own initiative.
11 The judgment refers to s 88A, which was renumbered as s 88B in December 2005.
12 At [23].
[12] In recommending this regime, the Law Commission considered the key features of the s 88B regime should be incorporated in the top tier, for general orders, and there should be other tiers.13 The Commission considered a graduated system of orders would provide a more proportionate response to vexatious litigants, consistent with the Bill of Rights.14 In an earlier issues paper, the Commission considered time limits should be provided for in the new statute, rather than relying on the Court’s inherent jurisdiction.15 I infer this, also, was to ensure orders are proportionate and rights-consistent. The Bill as introduced provided that, in general, all orders had effect for a three-year period.16 However, the Justice and Electoral Committee amended that to be “up to three years”, to provide more flexibility.17 This change was more consistent with the Commission’s recommendations.18
[13]Section 168(2) provides:
(2) An order made under section 166, whether limited, extended, or general, has effect for a period of up to 3 years as specified by the Judge, but the Judge making it may specify a longer period (which must not exceed 5 years) if he or she is satisfied that there are exceptional circumstances justifying the longer period.
[14] So all orders under the 2016 Act are subject to a maximum period of three years, or a maximum of five years in exceptional circumstances that justify the longer period.
[15] Clause 10(2) of Schedule 5 of the 2016 Act says this about the transition from the 1908 Act:
(2) All … orders … that originated under the relevant Act [defined in cl 7 to include the Judicature Act 1908] … and that are subsisting or in force on the commencement of this clause, have full effect as if they had originated under the corresponding provisions of this Act and, where necessary, must be treated as having originated under this Act.
13 Law Commission Review of the Judicature Act 1908: Towards a New Courts Act (NZLC R126, 2012) at [16.10].
14 At [16.5].
15 Law Commission Review of the Judicature Act 1908 – Towards a Consolidated Courts Act at (IP 29, 2012) [16.71]-[16.73].
16 Judicature Modernisation Bill 2013 (178–1), cl 164.
17 Judicature Modernisation Bill 2013 (178–2) (select committee report) at 3.
18 Law Commission Review of the Judicature Act 1908: Towards a New Courts Act (NZLC R 126, 2012) at [16.28], [16.30] and [16.32].
[16] In addition, s 17(1)(e) of the Interpretation Act 1999 provides that repeal of an enactment does not affect the previous operation of the enactment or anything done or suffered under it.
[17] In Siemer v Ministry of Justice, Peters J held the effect of clause 10 was that the s 88B order applying to Mr Siemer is to be treated as having originated under, and is equivalent to a general order under, the 2016 Act.19
[18] In Re Rafiq, Venning J outlined the argument that s 88B orders continued in full force and need not be treated as having originated under the 2016 Act.20 In rejecting this argument, he adopted a purposive interpretation, supported by the Bill of Rights. He held the transitional provision applies to s 88B orders because: Parliament intended to confirm the validity of orders made under s 88B; Parliament intended to adopt a phased transition so that eventually all s 88B banning orders would run their course; and “an interpretation limiting the length of time a litigant is banned is more consistent with the right under s 27(2) of the Bill of Rights”.21 Venning J noted that, under the s 88B regime, it “was open for the Court to make orders for less than a lifetime ban”.22 He inferred that circumstances prompting an indefinite order satisfy the exceptionality threshold under s 168(2).23 He held an unlimited s 88B order to be subject to a five-year time limit and that time begins to run from 1 March 2017, the date s 166 commenced.24 He considered that accords with the usual presumption against retroactivity yet is consistent with the purpose and wording of the transitional provision.
[19] On receipt of Mr Siemer’s application, I invited Mr Siemer to make submissions on whether I have jurisdiction to decide on Mr Siemer’s application. I also invited the Attorney-General to do the same, as the applicant for the s 88B order relating to Mr Siemer.
19 Siemer v Ministry of Justice [2018] NZHC 646 at [7] and [15].
20 Re Rafiq [2019] NZHC 1193 at [12]-[16].
21 At [24]–[27].
22 At [31].
23 At [31].
24 At [36]–[37].
Submissions
[20] Mr Siemer submits that, because the Court of Appeal left it available to him to apply to the Court for removal of the s 88B order at any time, it must not have considered it necessary for it to remain in force for any minimum time. He relies on the transitional clause. He submits no plausible arguments can be advanced to support the extension of the order against him beyond the default maximum of three years, particularly as the Court of Appeal made no mention of any circumstances requiring the ban to be operative for any minimum time. Mr Siemer submits both Acts are constitutional statutes entitled to a generous interpretation, avoiding the “austerity of tabulated legalism” to give individuals the full measure of fundamental rights and freedoms under the New Zealand Bill of Rights Act 1990.25 He submits this applies to his right to justice and that access to the courts for vindication of legal rights is part of the rule of law. He submits the s 88B order against him expired, by default, on 3 March 2019. That was three years after the Court of Appeal made the s 88B order. He submits time began running then, rather than when the 2016 Act came into force. Otherwise, the order would run for almost four years, exceeding the maximum of three years set by the 2016 Act.
[21] Mr McKillop, for the Attorney-General, accepts the effect of the 2016 Act is that indefinite orders made under s 88B must now be treated as finite. He relies on Re Rafiq for the term of a s 88B order and submits that is directly applicable to Mr Siemer’s circumstances because the order against him was indefinite and general. He submits it is not possible the Court of Appeal’s order might run for just three years from the date it was made because there is no explicit or apparent legislative intention to retrospectively alter the effect of court orders made prior to the 2016 Act’s commencement. He submits an explicit such intention would be required to overcome the principle of legality and the presumption statutes do not have retrospective effect. He supports Venning J’s holding that the more logical interpretation is to treat time as running from the commencement of the 2016 Act. Accordingly, he submits the order against Mr Siemer should be considered to expire on 1 March 2022. Mr McKillop also submits the s 88B order should continue because of new alleged harassment by
25 Ministry of Transport v Noort [1992] 3 NZLR 260 at 168 and 277.
Mr Siemer. Mr McKillop also offered submissions about Mr Siemer’s latest application.
Decision on jurisdiction
[22] The High Court has already ruled that the s 88B order applying to Mr Siemer must be treated as having originated, and is equivalent to a general order, under the 2016 Act. I agree that must be so. I also respectfully agree with Venning J that the interpretation based on the plain meaning, purpose and rights-consistency of the transitional provision means that there must be a time limit on the order applying to Mr Siemer. The question is how long it should be.
[23] The new Act provides that the time limit should be a maximum of three years unless there are exceptional circumstances justifying a maximum of five years. Section 166 itself can be consistent with an individual’s rights to justice under s 27 of the Bill of Rights, as the Court of Appeal held in Brogden v Attorney-General. While it limits the right to justice, the required reason for limitation, the preservation of the possibility of access to the courts and the new maximum time limits, mean the limit is reasonable, prescribed by law and demonstrably justified in a free and democratic society.
[24] Quite apart from the consistency of the provision itself, the application of s 88B or s 166 in any particular case by a judge is also required, by s 3(a) of the Bill of Rights, to be consistent with s 27. I consider a rights-consistent application of s 166 means that an order made under it must be no longer than reasonably necessary. That is consistent with the careful calibration of limited, extended and general orders, and the threshold of exceptionality for a maximum limit of more than three years. On its expiration, the situation can be assessed afresh.
[25] In according a rights-consistent meaning to an order previously made under s 88B, I consider it must clear, on the face of the judgment which imposed the order, that there were exceptional circumstances justifying a period of more than three years. Otherwise, there is no basis on which to assume any period more than three years is a reasonable limit now justified by law.
[26] In Re Rafiq, Venning J inferred five years were justified. But Mr Rafiq had consented to being declared vexatious. Mr Siemer did not. In any case, I do not consider it is clear on the face of the Court of Appeal judgment imposing the s 88B order on Mr Siemer that there were exceptional circumstances that now justify the term of the order being five years. The Court considered the order should be general rather than related to particular proceedings. But its reason for not considering a time limit was because the High Court could revoke the order at any time in the future if there was to be a change of circumstance. That is, now, inconsistent with s 168 which requires there to be a maximum time limit of three years unless there are circumstances justifying five years. The Court of Appeal’s judgment, on its face, did not address that. Accordingly, I consider the s 88B order imposed on Mr Siemer has a term of three years.
[27] Furthermore, the transitional provision requires the order to be treated as having been made under the 2016 Act. I cannot see any reason why Parliament should be taken to have intended that the maximum term of an order governed by the 2016 Act would depend on whether it was made before or after the Act came into force, or on how long before the Act came into force it was made. The logical and rights- consistent implication is that Parliament must be taken to have intended that the relevant maximum time limit provided for in the 2016 Act must apply to an order. Parliament set a default maximum time limit of three years and an ultimate maximum time limit of five years, where justified on an exceptional basis. Those time limits are calculated from the beginning of an order. It is inconsistent with Parliament’s intention for orders treated as having been made under that regime to be given potentially significantly longer terms, by implication, based on a transitional clause. Respectfully, I do not agree that, otherwise, the time limits have a retroactive effect. The prospective question is when they should expire. That question is answered by whichever time limit applies to a particular order.
[28] The consequence is that the s 88B order, applying to Mr Siemer as a vexatious litigant, which must be treated as a general order under the 2016 Act, expired on 4 March 2019, three years after it was imposed.
Current application
[29] The logical consequence of my decision on jurisdiction is that I have no jurisdiction to approve the filing of the claim Mr Siemer seeks to file. He does not require my leave. However, aspects of this claim are so troubling that they raise the question of whether Mr Siemer should be restricted from commencing civil proceedings afresh, under s 166, at least with limited effect in relation to the particular matter at issue in this proceeding.
[30] In summary, Mr Siemer appears to be pursuing, vexatiously, proceedings deriving from claims he and Mrs Siemer made to the Disputes Tribunal in April 2017 against a builder, Mr Jude Hickson. Mr Clayton Luke, the Disputes Tribunal referee, dismissed the claims in October 2017.26 Mrs Siemer’s appeal was dismissed by the District Court.27 Since then:
(a)The Siemers have made eight complaints to the New Zealand Law Society about Mr Luke.
(b)In October 2017 Mr Siemer distributed flyers at the North Shore District Court and Mr Luke’s residential address disparaging him.
(c)In November 2017 Mr Siemer contacted the Minister of Justice regarding a complaint about Mr Luke and the Principle Disputes Referee.
(d)In 2018, Mr Siemer sought leave to judicially review a decision by the Ministry of Justice in relation to a complaint by Mr Siemer about Mr Luke. Peters J dismissed the application in April 2018.28
(e)Mrs Siemer’s application to judicially review a decision of the Standards Committee to take no action, was dismissed by Courtney J
26 Siemer v Hickson DT North Shore, CIV-2017-044-495, 3 October 2017.
27 Siemer v Hickson [2018] NZDC 4262.
28 Siemer v Ministry of Justice, above n 19.
in September 2018, because Mrs Siemer failed to attend the substantive hearing.29
(f)Mrs Siemer also applied for judicial review of the Ministry of Justice’s process for dealing with the complaints by her and Mr Siemer against Mr Luke, which was struck out by Hinton J in December 2018.30
(g)Hinton J also made an extended order under s 166 of the 2016 Act that Mrs Siemer was prohibited from commencing or continuing, without leave, any proceeding in any Court or Tribunal concerning or relating to the two proceedings in the Dispute Tribunal for three years.
(h)In March 2019, Downs J declined to grant leave under that order to an application by Mrs Siemer to continue an application for judicial review of the Disputes Tribunal and District Court decisions. Downs J was satisfied the claim was brought to harass and was almost certainly Mr Siemer’s.31
(i)Mr Siemer now seeks to judicially review another Standards Committee decision to take no further action on another complaint by Mrs Siemer against Mr Luke, which it considered vexatious and/or not made in good faith.
[31] Mr Siemer’s supporting evidence includes a transcript of the Siemers’ hearing before Mr Luke in the Disputes Tribunal, which Mr Siemer has apparently obtained in breach of a court order. Mrs Siemer was granted access to the transcript in May 2018 for the sole purpose of her application for review of the Disputes Tribunal and District Court decisions.32 When she subsequently disclosed the transcript to Mr Siemer and the Law Society, Fitzgerald J considered that was civil contempt and clarified that Mrs Siemer was not permitted to disclose the transcript to him.33 She warned that
29 Siemer v New Zealand Law Society [2018] NZHC 2400.
30 Siemer v Attorney-General [2018] NZHC 3406.
31 Siemer v District Court, North Shore [2019] NZHC 346 at [10].
32 Minute of Fitzgerald J, 31 May 2018, in CIV-2018-404-610 at [10]
33 Minute of Fitzgerald J, 7 August 2018, in CIV-2018-404-610 at [4].
“any broader dissemination of the transcripts, or any aspect of them, would be viewed very seriously by the Court”.34 Mrs Siemer was later permitted to use the transcript for other, limited purposes.35 She was, at no point, permitted to disclose the transcript to Mr Siemer.
[32] My preliminary view is that the proceeding Mr Siemer wishes to file is speculative, a collateral attack on the Disputes Tribunal decision, a second-bite at Mrs Siemer’s proceeding against the NZLS, part of a pattern of harassment of Mr Luke and in breach of Fitzgerald J’s order concerning the Disputes Tribunal transcript. I am minded to make an order under s 169(3) on my own initiative. But I seek submissions from Mr Siemer, and from the Attorney-General as the initiator of the previous s 88B order, if either of them so wish, about that.
Result
[33] Mr Siemer is no longer subject to the s 88B order imposed by the Court of Appeal on 4 March 2016. I invite Mr Siemer, and the Attorney-General, if either of them so wish, to file submissions about whether Mr Siemer should be restricted from commencing civil proceedings under s 166. The Attorney-General may file submissions by 4 pm Friday 24 January 2020, if he wishes to do so. Mr Siemer may file submissions in reply by 5 pm Monday 24 February 2020, if he wishes to do so. I reserve leave to either of them to apply to vary that timetable. If this proceeding is filed in the meantime, it will be stayed until resolution of that issue.
Palmer J
34 At [6].
35 Minute of Fitzgerald J, 31 August 2018, in CIV-2018-404-610.
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