Siemer v O'Brien - [2014] NZHC 2886

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-5611 [2014] NZHC 2886

IN THE MATTER OF
an application under the New Zealand Bill

of Rights Act 1990 for declaratory relief

BETWEEN

VINCENT ROSS SIEMER Plaintiff

AND

CLARE O'BRIEN First Defendant

ATTORNEY-GENERAL Second Defendant

Hearing: 5 November 2014

Counsel:

V R Siemer in person
D Harris for First and Second Defendants

Judgment:

20 November 2014

JUDGMENT OF WILLIAMS J

[1] In this matter, Mr Siemer applies for the following orders:

(a) A declaration that the Registrar of the Court of Appeal (Clare O’Brien) acted unlawfully “in rejecting/dismissing the plaintiff’s application, exercising judicial powers she did not by law have, abusing her administrative role in the New Zealand government, and consequently breaching the plaintiff’s rights under s 61A(1) of the Judicature Act 1908 and s 27(1) of the NZBORA.”

(b) A declaration that Ms O’Brien was “in breach of the Court of Appeal

(Civil) Rules 2005 by rejecting/dismissing the plaintiff’s application.”

SIEMER v O'BRIEN & ANOR [2014] NZHC 2886 [20 November 2014]

(c) A declaration that Ms O’Brien’s “exercise of judicial powers to prevent court access constituted a fundamental breach of the rule of law”.

(d) Such other relief as the Court deems fit.

[2] Before the substantive matter was argued, Mr Siemer raised a preliminary issue in relation to whether the Attorney-General had standing to be heard in this application. I will come back to that below.

Background

[3] Certain decisions of the Judicial Conduct Commissioner (rejecting Mr Siemer’s complaints) were challenged by Mr Siemer by way of judicial review. Toogood J dismissed the application in a counter-application by the Commissioner for summary judgment.1 Mr Siemer then appealed and the appeal became mired in the question of security for costs. The Registrar fixed standard security for costs in accordance with r 35 of the Court of Appeal (Civil) Rules 2005 (the Rules). Mr Siemer applied to review that decision and the application was dismissed by Wild J.2 Mr Siemer then sought leave to appeal that decision to the Supreme Court
but leave was denied.3

[4] Mr Siemer then brought fresh proceedings in judicial review against the same decision of the Judicial Conduct Commissioner (CIV-2012-485-2419 and CIV-2012-
485-2546 – the earlier review).

[5] In a decision of 2 July 2013, I struck those proceedings out as an abuse of process.4 That in turn was appealed in CA452/13. And then a further round of dispute over the fixing of security for costs began in respect of that appeal.

[6] On 15 July 2013, the Registrar of the Court of Appeal sent a letter acknowledging the appeal and fixing security at $5,880.

1      Siemer v Attorney-General [2013] NZHC 1481.
2      Siemer v Judicial Conduct Commissioner CA442/2012, 5 September 2012.
3      Siemer v Judicial Conduct Commissioner [2012] NZSC 92.
4      Siemer v Judicial Conduct Commissioner [2013] NZHC 1655.

[7] On 23 July 2013, Mr Siemer then applied under s 61A(1) of the Judicature Act seeking a dispensation for security for costs…

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.

Continue reading Siemer v O'Brien

Details

AGLC: Siemer v O'Brien [2014] NZHC 2886
Case: [2014] NZHC 2886
Decision Date: 20 November 2014

CaseChat Overview and Summary

Vincent Ross Siemer sought a declaration that Clare O'Brien, the Registrar of the Court of Appeal, acted unlawfully in dismissing his application for security for costs in his appeal, and breached his rights under the New Zealand Bill of Rights Act 1990 and the Judicature Act 1908. Siemer also sought a declaration that O'Brien breached the Court of Appeal (Civil) Rules 2005 by dismissing his application. The Attorney-General intervened as a party, but Siemer objected to the Attorney-General's standing.

The court had to decide whether the Attorney-General had standing to intervene in the proceedings, and whether Siemer's application for declarations should be granted. The court found that the Attorney-General had standing to argue that the Registrar's exercise of power was lawful, as the exercise of public law powers often requires the Attorney-General to appear in court. The court also found that Siemer's application for declarations must fail, as the procedure in the Court of Appeal (Civil) Rules 2005 was the means by which applications to dispense with security for costs would ordinarily be dealt with. The court rejected Siemer's argument that the Registrar was not legally trained to consider the merits of his case when dealing with an application to dispense with security for costs.

The court dismissed Siemer's application for declarations and any other relief.

Orders