Siemer v Registrar of the Supreme Court

[2022] NZHC 1724

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-177

[2022] NZHC 1724

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

VINCENT ROSS SIEMER

Applicant

AND

REGISTRAR OF THE SUPREME COURT

Respondent

CIV-2021-404-1955

BETWEEN

ATTORNEY-GENERAL
Plaintiff

AND

VINCENT ROSS SIEMER

Defendant

Hearing:

13 June 2022

Appearances:

Mr Siemer in person

M J McKillop and R M McMenamin for Crown parties

Minute:

19 July 2022

JUDGMENT OF COOKE J

(Leave to appeal and stay)

[1]                 By application dated 2 June 2022 the Attorney-General seeks leave to appeal an interlocutory decision in these proceedings. By application dated 28 June 2022 the Attorney-General also applies for the proceedings to be stayed pending the outcome of the intended appeal. The Attorney-General seeks to appeal a decision by Duffy J

SIEMER v REGISTRAR OF THE SUPREME COURT [2022] NZHC 1724 [19 July 2022]

consolidating proceedings brought by the Attorney-General seeking a civil restraint order against Mr Siemer under s 166 of the Senior Courts Act 2016 (CIV-2021-404- 1955) with proceedings in this Registry in which the Registrar of the Supreme Court had made a similar interlocutory application for a s 166 order (CIV-2021-485-177).1 Duffy J also transferred the Auckland proceedings to the Wellington Registry as part of the consolidation. Finally, the Court ruled that a number of the earlier decisions of courts and tribunals in proceedings brought by, or involving Mr Siemer were inadmissible under the Evidence Act 2006.

[2]                 The Attorney-General’s application for leave to appeal was called before me on 10 June, and after hearing from counsel for the Attorney-General and Mr Siemer I directed the Attorney-General to file a formal application to formalise his oral application for a stay. I also gave both parties an opportunity to file further written submissions following which I would issue a decision on the applications.2

Preliminary procedural points

[3]                 Mr Siemer has raised some preliminary procedural points. He has not filed further written submissions but he has, by application dated 11 July, sought that I recuse myself from determining the applications. As I understand it this application is advanced on the basis that it is procedurally irregular for me to determine the applications for leave to appeal and for a stay, and secondly because I made observations about the applications that have predetermined the outcome in my minute following the hearing.

[4]                 I do not accept either argument. It is customary for the Judge who has heard and determined a matter to consider any application for leave to appeal the judgment to the Court of Appeal. But in this case Duffy J transferred the proceedings to the Wellington Registry and consolidated it with an existing Wellington proceeding. For this reason the applications have been called before a Wellington Judge. Whilst it might be possible to transfer the applications back to Duffy J for determination, the more appropriate course is for the matter to be determined in the normal way. There

1      Attorney-General v Siemer [2022] NZHC 917.

2      Mr Siemer also filed an application that I recall my minute of 14 June which I declined by minute of 30 June 2022.

is no procedural rule requiring the hearing Judge to be the Judge that determines an application for leave, and it can be more expeditious for the Judge before whom the application is called to determine it. That is particularly so here given that the application for leave to appeal is a straightforward one for the reasons outlined below.

[5]                 Neither am I disqualified from determining the applications because I indicated at the hearing, and then in the minute following the hearing, preliminary views. Providing those views during the course of argument, or in a minute for the purposes of any further written submissions, provides the participants with the ability to address the points raised. That is simply part of the determination of applications, not the predetermination of them.

[6]                 Neither do I accept that there are any other legitimate procedural criticisms of the way the applications have been dealt with. Indeed, if anything, my direction that the Attorney-General formally file an application for a stay rather than simply advancing that application orally was to ensure matters were procedurally regularised.

Leave to appeal

[7]                 Pursuant to s 56 of the Senior Courts Act 2016 leave to appeal is required to appeal against any interlocutory order of the High Court. The application is opposed by Mr Siemer. The requirement for leave operates as a “filtering mechanism to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally do not unnecessarily delay the proceedings in which the orders were made”.3 The applicant must show an arguable error that warrants appeal, with the ultimate question being whether the interests of justice are served by the grant of leave.

[8]                 For two related reasons I accept that leave to appeal should be granted in the present case.

[9]                 First, the decision of the High Court that previous decisions by the courts and tribunals are inadmissible in what are, in substance, vexatious litigant applications will

3      Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].

have considerable practical significance not only in this proceeding, but more generally in relation to applications under s 166. It will be very much more difficult to obtain such orders if the applicant is not able to rely on previous decisions to establish the person subject to the application has been conducting proceedings which are totally without merit. It has been routine for Courts dealing with these applications to rely on the decisions in the relevant litigation. For example when the Court of Appeal confirmed the previous orders against Mr Siemer under s 88B of the Judicature Act 1908, it found it unnecessary to traverse the detail of Mr Siemer’s proceedings as it was “… sufficient to note the High Court accepted 15 of the 19 proceedings were vexatious because they had been instituted for the collateral purpose of re-litigation issues that had already been finally resolved”.4 And as Duffy J herself said in the decision the Attorney-General seeks to appeal, “… it is hard to see how the Attorney- General’s application can proceed without reliance on the reasons for judgment … to prove the legal proceedings brought by Mr Siemer, what their basis was, the merits of those proceedings and their respective outcomes”.5

[10]              The second point is that I accept that the Attorney-General has a strongly arguable case on appeal. Duffy J first relied on s 50 of the Evidence Act as a reason why the decisions were inadmissible. But this section only prevents previous decisions being admissible “to prove the existence of a fact that was in issue in the proceeding in which the judgment was given”.6 Here the previous decisions would not be provided as evidence of the facts found in those decisions, but as evidence of the conclusions reached by the relevant courts or tribunals. The related finding that the decisions would be inadmissible as opinion and documentary hearsay evidence may also not be consistent with the view that formal decisions of courts or tribunals are matter of public record that can be received by the Court, including through other provisions in the Evidence Act such as s 128(2).7 The reasoning of the court or tribunal is more than opinion or documentary hearsay. It is at least arguable that the decisions are formal conclusions of judicial authorities, and that the existence of such conclusions are able to be taken into account as a matter of public record.

4      Siemer v Attorney-General [2016] NZCA 43, [2016] NZAR 411 at [14].

5      Attorney-General v Siemer, above n 1, at [67].

6      Evidence Act 2006, s 50(1).

7      See, for example, National Standards Committee (No 1) v Deliu [2012] NZHC 3378 at [28].

[11]              In any event at this stage all the applicant needs to establish is that there is an arguable error of law and/or that the proposed appeal is of general public importance that warrants further delay that is likely to arise by the grant of leave. That is satisfied in the present case. The decision plainly now warrants consideration by the Court of Appeal as the decision will make applications under s 166, including those in the present proceedings, very difficult to advance.

[12]Accordingly I grant leave to appeal in the terms sought.

Stay pending appeal

[13]              The Attorney-General also seeks a stay of the High Court proceedings pending the proposed appeal. At the hearing I directed that a formal application be filed in this respect. Although a formal notice of opposition has not been filed Mr Siemer opposed the stay at the hearing and I proceed on the basis that the stay is opposed.

[14]              The formal application filed by the Attorney-General appears to rely on r 20.10 of the High Court Rules 2016. That is not the applicable rule. Part 20 deals with appeals to the High Court to the High Court not appeals from the High Court. The relevant rule is r 12 of the Court of Appeal (Civil) Rules 2005. This allows the Court appealed from to order a stay of the proceedings in which the relevant decision was given. The general approach requires the Court to balance the competing rights of the party who has obtained a judgment against the need to preserve the appellant’s position in the event of the appeal succeeding.8 That general approach needs to be applied in light of the fact that the appeal here is against an interlocutory decision only.

[15]              I accept the Attorney-General’s first point that the decision in relation to admissibility has serious, and potentially fatal implications for the substantive applications in this proceeding. If the Crown bodies are not able to rely on the previous decisions of courts and tribunals it may become impossible for them to succeed with

8      Duncan v Osborne Buildings Ltd (1992) 6 PRNZ 85 (CA) at [87]; Keung v GRB Investment Ltd [2010] NZCA 396 at [11]; Bilgola Enterprises Ltd v Dymocks Franchise Systems (NSW) Pty Ltd (1999) 13 PRNZ 48 (HC) at [9]; Yan v Mainzeal Property Construction Ltd (In rec and liq) [2014] NZCA 86, (2014) 22 PRNZ 296 at [25].

the applications. For that reason it is necessary that the appeal be determined before any further steps are taken in relation to the s 166 applications.

[16]              Secondly, as the Attorney-General says, in the meantime Mr Siemer remains free to conduct proceedings in the normal way. So the delay in the determination of the s 166 applications is not prejudicial to him.

[17]              The only matter of concern is that the s 166 application in the Wellington proceeding was an interlocutory application only, and there is an underlying judicial review claim that would be stayed. Normally it is appropriate to ensure that judicial review proceedings are determined promptly. But here it has been determined that that judicial review proceeding be consolidated with the Attorney-General’s s 166 application. Moreover the underlying judicial review proceeding is not one that appears to have urgency about it. It is a judicial review challenge to a decision of the Registrar of the Supreme Court not to release a document from the Supreme Court file. I have previously noted that this challenge appears to be more one of principle than practical impact.9

[18]              I also note that Mr Siemer appears to be advancing the same claim, or a very similar claim, in related proceedings. The Court of Appeal has recently overturned a decision of the High Court under r 5.35B of the High Court Rules striking out claims against the Registrar of the Supreme Court, including the claim in relation to access to a document on the Court file. The Court of Appeal held that any strike out of that claim was more appropriately dealt with under r 15.1.10 So Mr Siemer is likely able to pursue these issues in other proceedings.

[19]              For these reasons a stay is appropriate. It is accordingly granted pending determination of the appeal in the terms sought.

9      Siemer v Registrar of the Supreme Court HC Wellington CIV-2021-485-177, Minute 1 June 2021 at [4].

10     Siemer v Complete Construction Ltd [2022] NZCA 262 at [40]–[50].

Outcome

[20]              I accordingly grant leave to appeal and a stay in the terms of the applications sought.

[21]If there is any issue in relation to costs I will receive memoranda.

Cooke J

Solicitors:
Crown Law, Wellington for the Registrar of the Supreme Court and Attorney-General