Siemer v New Zealand Law Society

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000447

[2018] NZHC 2400

BETWEEN
JANE SIEMER

Applicant

AND

NEW ZEALAND LAW SOCIETY

First Respondent

CLAYTON LUKE

Second Respondent

Hearing: 12 September 2018

Appearances:

No appearance for Applicant

M J Hodge and J C Bull for First Respondent No appearance for Second Respondent

Judgment:

12 September 2018

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 12 September 2018 at 3.00 pm
pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date…………………..

SIEMER v NEW ZEALAND LAW SOCIETY & OR [2018] NZHC 2400 [12 September 2018]

[1] This proceeding is a judicial review application by Jane Siemer in respect of a decision by the New Zealand Law Society (NZLS) declining to take further action in relation to Mrs Siemer’s complaint about a Disputes Tribunal referee, Mr Luke.

[2] On 7 August 2018, Fitzgerald J issued a minute addressing timetable issues. At the conclusion, Her Honour noted that:

… Mrs Siemer records that she is content to have the judicial review determined on the papers. She states that she is not a lawyer and never wanted a hearing. Nevertheless, Mrs Siemer has commenced these proceedings and chooses to represent herself. I decline to make an order that the matter proceed on the papers. Substantive hearings, particularly in judicial review proceedings, are in my view appropriately dealt with by way of a hearing. It is usually more efficient and helpful to the Court to have a hearing, even if brief, to enable the issues to be ventilated and the Court to seek clarification from counsel/the parties on any queries or questions it may have.

It of course remains open to the Judge to whom the substantive hearing is allocated to direct that it be dealt with on the papers …

[3] Subsequent to that minute, the proceeding was set down for a half-day fixture today. However, Mrs Siemer did not appear to advance her application. At 10.20 am, with no appearance and no communication from Mrs Siemer as to her intentions, I dismissed the application and made an order in favour of the NZLS for costs on a 2B basis. My reason was that Fitzgerald J had made it very clear in her minute that this matter would not be dealt with on the papers and that if Mrs Siemer wished to prosecute her application, she needed to appear in support of it at the allocated hearing date.

P Courtney J

CaseChat Overview and Summary

In the High Court of New Zealand, the applicant, Jane Siemer, sought judicial review of a decision made by the New Zealand Law Society (NZLS) to decline further action on her complaint regarding a Disputes Tribunal referee, Mr Luke. The NZLS was the first respondent, and Mr Luke was the second respondent, although he did not appear or participate in the proceedings. The case was heard and determined by Justice Courtney on 12 September 2018.

The legal issues before the court were whether the NZLS had acted unlawfully, irrationally, or procedurally unfair in declining to take further action on Mrs Siemer's complaint and if the court should dismiss the application for judicial review for want of prosecution. The court had to consider whether the decision of the NZLS was subject to judicial review, the standard of review applicable, and whether the NZLS had procedurally fair processes in place for handling complaints. The court also needed to determine whether Mrs Siemer had a legitimate expectation of a hearing and whether the dismissal of the application for want of prosecution was appropriate.

Justice Courtney dismissed the application for judicial review for want of prosecution. The court found that Fitzgerald J had clearly stated that the matter would not proceed on the papers and that Mrs Siemer needed to appear at the allocated hearing date to prosecute her application. Despite Mrs Siemer's representation of herself and her assertion that she was content to have the matter determined on the papers, the court held that substantive hearings, particularly in judicial review proceedings, were best dealt with by way of a hearing. The court also found that it remained open to the judge to direct that the matter be dealt with on the papers if appropriate. However, in this case, the court dismissed the application for want of prosecution and ordered the NZLS to be paid costs on a 2B basis.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established