Siemer v Registrar of the Supreme Court

[2021] NZHC 1604

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-125 [2021] NZHC 1604

UNDERthe Judicial Review Procedure Act 2016 and s 27(2) of the New Zealand Bill of Rights Act 1990

IN THE MATTER             of an application for Judicial Review BETWEEN  VINCENT ROSS SIEMER

Applicant

AND  REGISTRAR OF THE SUPREME COURT

Respondent

Hearing:                   23 June 2021

Appearances:           No appearance for Applicant

G M Taylor and R M McMenamin for Respondent

Judgment:                1 July 2021

JUDGMENT OF ISAC J

[On strike-out application]

The issue

[1]        Mr Siemer has filed proceedings seeking judicial review of decisions of the Registrar of the Supreme Court.

[2]        The Registrar says this proceeding is identical to one Mr Siemer commenced in the High Court at Auckland which was subsequently struck out by Downs J.1

[3]The issue is whether the current proceeding is, therefore, an abuse of process.

1      Siemer v The Registrar of the Supreme Court CIV-2021-404-000100, 12 February 2021.

SIEMER v REGISTRAR OF THE SUPREME COURT [2021] NZHC 1604 [1 July 2021]

Background

[4]        On or about 2 February 2021,2 Mr Siemer filed in the Auckland Registry of the Court a statement of claim seeking judicial review of “five rulings by email between 15–21 December 2020” in which the respondent:

… variously rejected attempted filings, access to a court record in an appeal where the Applicant is a party and receipt of an application for judge review of the Respondent’s refusals …

[5]        On 12 February 2021, Downs J struck out Mr Siemer’s Auckland proceeding.3 His Honour concluded that the proceeding was plainly an abuse of process in terms of r 5.35B the High Court Rules 2016. That was because the proceeding concerned matters already determined by a Judge (and therefore constituted a collateral challenge), the “absence of a decision” by the Registrar of the Supreme Court, or an unimpeachable matter of fact, or some combination of these matters.4

[6]        Mr Siemer  subsequently  filed  an  appeal  from  Downs J’s   decision   on  24 February 2021. That appeal has not yet been heard by the Court of Appeal.

[7]        On 10 March 2021, Mr Siemer filed the current proceeding in the Wellington Registry.5 It has remarkable similarity to the Auckland proceeding struck out by Downs J. I will return to the similarities later in this judgment.

[8]        On 15 April 2021, the respondent filed an interlocutory application seeking to strike out the Wellington proceeding on the basis that it is an abuse of process. The notice of interlocutory application pleads that the statement of claim is materially similar to the Auckland proceeding, and that it is an abuse of the Court’s processes to file essentially the same claim in a different registry when the previous claim has already been struck out and is subject to a live appeal. It is also said the duplication of proceedings is contrary to the principle of res judicata.

2I say “about”, because 2 February 2021 is the date Mr Siemer used on the cover-page to his statement of claim in the Auckland proceeding.

3      Siemer v The Registrar of the Supreme Court, above n 1.

4 At [3].

5      While received for filing on that date, Mr Siemer dated the statement of claim 26 January 2021.

[9]        On 21 June 2021 Mr Siemer filed submissions in opposition to the respondent’s strike-out application. In an  email  to  the  Registrar  the  same  day,  Mr Siemer advised that he would attend the hearing of the application by telephone and provided a cellphone number.

[10]      The Registrar reminded Mr Siemer of a minute of 29 April in which I indicated to Mr Siemer that an appearance via AVL would not be possible, and he would need to make arrangements for personal attendance at the hearing.

[11]      Mr Siemer then advised the Registrar by email on 22 June, the day before the hearing, that he would be unable to attend the hearing in person because he was attending a funeral in the United States of America.

[12]      I considered the appropriate course was to proceed with the hearing on 23 June in Mr Siemer’s absence. That was because Mr Siemer had not applied to adjourn the hearing, or have his appearance excused.

Discussion

Mr Siemer’s argument

[13]      In brief written submissions, Mr Siemer does not seek to suggest that the Auckland and Wellington proceedings raise different issues. Rather, he contends there is no duplication because “no similar proceeding existed [in Auckland], and no party ever served”. In essence, Mr Siemer argues that his Auckland case was never accepted for filing and, therefore, never constituted a proceeding.

[14]      Mr Siemer also argues that Downs J had no jurisdiction to determine the Auckland proceeding because “Wellington is the proper court”.

Analysis

[15]      Finality is an essential quality of justice. Litigants unhappy with a first instance judicial determination are generally entitled to challenge the result by way of appeal. But once appeal rights are exhausted a final judicial determination is not to be

subverted by collateral challenge through further proceedings on the same subject matter.6 Legal proceedings must come to an end at some point.

[16]      Finality is an essential quality of justice because justice is concerned with the determination of rights.7 As the Court of Appeal has noted, serial efforts to reopen otherwise final judgments may deny justice to parties and other persons entitled to depend upon them, and — perhaps most crucially — delay or deny justice to others with proceedings of their own requiring the court’s attention.8

[17]      The principle of finality operates outside of challenge by appeal. So bringing substantively the same proceeding “in a different garb” before the same court,9 or seeking to litigate the same issue in parallel proceedings, is an abuse of process.10 These principles have been recognised in what is known as the extended res judicata doctrine.11

[18]      The extended doctrine is based on abuse of process and is available to litigants who were not involved in the earlier litigation as a party and are not a privy of a party.12 As Lord Sumption put it in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd:13

Res judicata and abuse of process are juridically very different. Res judicata is a rule of substantive law, while abuse of process is a concept which informs the exercise of the court’s procedural powers. In my view, they are distinct although overlapping legal principles with the common underlying purpose of limiting abusive and duplicative litigation.

[19]      It is for this reason that the authors of Spencer Bower and Handley: Res Judicata suggest that courts should first decide whether a litigant has a substantive right to a res judicata estoppel before considering whether the proceeding is an abuse of process.14

6      Faloon v The Planning Tribunal [2020] NZCA 170 at [2].

7      Lyon v R [2019] NZCA 311, [2019] 3 NZLR 421 at [10].

8Faloon v The Planning Tribunal, above n 6, at [3]. See also Williams v New Zealand Police [2021] NZHC 808 at [81], [87].

9      Collier v Butterworths of New Zealand Ltd (1997) 1 PRNZ 581 HC) at 586.

10Otis Elevator Co Ltd v Linnel Builders Ltd (1991) 5 PRNZ 72 (HC); Cowley v Shortland Publications Ltd (1991) 5 PRNZ 75 (HC).

11KR Handley Spencer Bower and Handley: Res Judicata (5th ed, LexisNexis, United Kingdom, 2019) at [26.01].

12     At [26.01].

13     Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46, [2014] AC 160 at [25].

14     Spencer Bower and Handley: Res Judicata, above n 11, at [26.01].

[20]      In this case, it does not matter whether Mr Siemer’s Wellington proceeding is considered on the basis of res judicata or the extended doctrine. There is no doubt that it meets the requirements of both:

(a)The parties are the same;

(b)The statements of claim in both proceedings are in almost identical terms and challenge the same decisions of the respondent and cite the same facts;15 and

(c)The grounds of review pleaded are also the same, being:

(i)procedural impropriety;

(ii)unfairness and breach of natural justice;

(iii)irrationality; and

(iv)error of law.

[21]      Attached to this judgment is an appendix showing the similarities and differences between Mr Siemer’s two pleadings. The base document is Mr Siemer’s Auckland statement of claim. Additions or alterations which he made to the document before filing it again in the Wellington Registry appear as tracked changes.

[22]      Given the superficial nature of the amendments, and the relevant sequence of events, there is an obvious inference to be drawn: Mr Siemer, unhappy with the decision of Downs J striking out his Auckland proceeding simply re-packaged the claim and re-filed it in the Wellington Registry while simultaneously appealing Downs J’s judgment to the Court of Appeal.

[23]That is a quintessential abuse of process.

15The relevant facts appear at [6]–[20] of each statement of claim. Both challenge five alleged steps taken by the Supreme Court Registrar between 15–21 December 2020.

[24]      Mr Siemer’s right to challenge Down J’s judgment, if any, is properly through appeal. The proceeding in this Court is a collateral challenge to a decision of this Court which, until overturned on appeal, must be regarded as final.

[25]      Accordingly, the Wellington proceeding is struck out is an abuse of process under r 15.1.

Mr Siemer’s remaining arguments

Downs J lacked jurisdiction because Wellington was the proper Court

[26]      There is no merit in Mr Siemer’s submission that his proceedings are not duplicative because the Auckland High Court had no jurisdiction to determine the earlier proceeding given it was not the proper Court.

[27]      Mr Siemer chose to file his first proceeding in the Auckland Registry. That did not deny the High Court of jurisdiction: r 5.1 of the High Court Rules allows for the transfer of proceedings to the proper registry on application, which did not occur.

[28]      An added problem for Mr Siemer is that he made the decision to file the proceeding in Auckland. Any error is therefore of his own making. It does not sit well for him to suggest his own claimed failing deprived the Court of jurisdiction.

No duplication because the Auckland proceedings were never filed or commenced?

[29]      Mr Siemer’s second argument is also unsustainable. It rests on the incorrect premise that the Auckland proceeding was never accepted for filing and never served, and therefore “there has been no litigation and no proceeding”.

[30]This argument overlooks the language of rr 5.35A and B.

[31]      Rule 5.35A(1) provides that the rules on striking out before service apply where a Registrar believes, on the face of a proceeding tendered for filing, that the proceeding is plainly an abuse of process.

[32]      Under r 5.35A(2), the Registrar must accept the proceeding for filing if it meets the formal requirements set out in the rules. Acceptance for filing is therefore a pre- condition of the exercise of powers under both s 5.35A and 5.35B.

[33]      Rule 5.35B(2) then provides a Judge with a broad power to make an order “to ensure that the proceeding is disposed of or, as the case may be, proceeds in a way that complies with [the rules]” (emphasis added).

[34]      So contrary to Mr Siemer’s submission, the language of both rules makes it clear that his Auckland statement of claim had been accepted for filing and constituted a proceeding. Were it otherwise, there would have been nothing for the Court to strike out.

Conclusion and result

[35]      The respondent’s application is granted and the proceeding is struck out as an abuse of process.

[36]      If the respondent seeks costs as the successful party, a memorandum in support not exceeding three pages should be filed within 10 working days.

[37]      Any submissions on costs by Mr Siemer are also similarly limited to three pages, and are to be filed 10 working days thereafter.

Isac J

Solicitors:

Crown Law Office, Wellington for Respondent

Appendix A

INTHE·NEW ZEALAND HIGH COURT

Auckland Wellington Registry

CIV2021 404485

 

Under:The Judicial Review Procedure Act 2016 and a 27 (2) of The New Zealand Billof Rights Act 1990

Inthe Matterof:  A Judicial Review

BETWEEN  VINCENT ROSS SIEMER

[address] Applicant

AND  REGISTRAR OF THE SUPREME COURT

Lambton Quay _@ Ballance St

Wellington

Respondent

STATEMENT OF CLAIM (revised)

2 February 2021 26 January 2021

Filed  by: Vince Siemer [email, address]

 

The APPLICANT says:

1.0 The Applicant is a New Zealand citizen living in Auckland.

2.0 The Respondent was appointed court Registrar under the State Sector Act 198816 and it is in this capacity that his actions are judicially reviewed.

JUDICIAL REVIEW LEGAL FRAMEWORK

3.0 Registrars are required, without exception, to comply with public requests made under r 8(1) of the Senior Courts (Access to Documents) Rules 2017.

4.0 Registrars have no legal authority to prevent reviews of their decisions which prevent court access or access to public court documents.

5.0 The Judicial Review Procedure Act 2016 & s27(2) of The New Zealand Bill of Rights Act 1990 each provide the right to judicially review registrars.

RELEVANT FACTS

6.0 The Respondent issued five rulings by email between 15 - 21 December 2020 which variously rejected (1) attempted filings, (2) access to a court record in an appeal where the Applicant is a party, and then (3) receipt of an application for to judge review of the Respondent's refusalsthese two rejections (“The Refusals”).

7.0 The Refusals were each procedural (i.e. none addressed any merits).

8.0    The Refusals are identified as:

8.1     A 15 December 2020 email refusal to accept a fee waiver application on the ground it “has already been determined and reviewed by a Judge”.

16 Since repealed and replaced by the Public Service Act 2020

 

8.2    A 17 December 2020 email confirming the Respondent’s refusal to accept receipt of an amended fee waiver application.

8.3     Two 18 December 2020 email refusals to provide “a copy of the file document index for SCl0l/2020” upon the reason “There is no such

index” for this Supreme Court file where the Applicant is a party.

8.4     A 17 December 2020 email refusing to receive a review application under s82(4)(b) of the Senior Courts Act 2016 on the ground the ex parte 2013 decision Guy vBankofNewZealand [2013] NZSC 127 prevents making such an application.

8.5     A 21 December 2020 email refusing toreceive an application for judge review of the Respondent’s refusal to provide a document index for SCl0l/2020 on the basis his the Respondent’s was not refusal is “not a decision”:

“Please note that in communicating this position (of fact) to you I am not making a decision under a power conferred by a rule and so consequently there is no basis for a review.”

9.0  The 15 December and 17 December 2020 email refusals relied upon an incorrect basis, as confirmed by the Ministry of Justice waiver form at page 2 which provides the option, “I applied for this fee to be waived or refunded on (date). That application was refused, but my circumstances have now changed and I wish to make a new application.”, andWHERE

9.1This selection had been appropriately ticked, andon the form, and

9.2The changed circumstances were sufficiently also provided on the form.

 

10.0     The Respondent knew, or should have known, the reason he gave for refusing to accept an amended application for fee waiver in the above circumstances was a violation of his duty as Supreme Court registrar.

11.0     The 18 December 2020 email refusal’s pretext “There is no such index for appeal file SCl0l/202” is a false premise for refusal. All courts keep such indexes and “every person” has by right access to this index under r 8(1) of the Senior Courts (Access to Court Documents) Rules 2017

12.0       The Respondent knew, or should have known, the reason he gave for refusing to provide a copy of the SCl0l/2020 index was false, as well

as a violation of his duty as registrar to provide this document under r 8(1) of the Senior Courts (Access to Court Document) Rules.

13.0          The 17 December 2020 email refusal to accept a review application under s82(4)(b) of the Senior Courts Act 2016 on the ground a 2013 decision bars this statutory right of review was a false reasonnot lawful.

14.0          This 2013 Guy v Bank of New Zealand [2013]NZSC 127decision is not a legitimate ruling on this issue as this issue was notbecause it was never before the court – as the lack of a file number in judgment further confirms.

15.0     In refusing access, the Respondent knew he was relying on a ruling of the Supreme Court on an issue which had never been before the court AND which pre-dated the legislation which provided providing the right being exercised.

16.0          The 21 December 2020 email refusal to accept an application for judge review of the Respondent's refusal to provide a file index was made without lawful authority AND the Respondent did not rely on any alleged authority when refusing to receive this application for review.

17.0          The Respondent knew at the time of his refusalwhen refusing to provide the index for file SCl0l/2020 that the reason he gave forhis reason for refusing (i.e. no such index exists) [1] was false, and [2] that r 8(1) of the Senior Courts (Access to Documents) Rules 2017 required he provide a copy of index.

18.0          The Respondent knew at the time he refused to permit judge review of his refusal to provide this index that he was acting outside his lawful authority AND that the reason he relied upon to support this obstructive action (i.e. he was simply “communicating a position of fact and not making a decision”) was materially false.

19.0          The Respondent repeatedly accompanied the Refusalswith statements that he was unlikely to, or would not, respond further.

20.0         As supported by the accompanying affidavit of Vincent Ross Siemer dated 12 January 20214 March 2021 and its annexures.

JUDICIAL REVIEW CAUSES OF ACTION

The Respondent's Approach Suffered from Procedural Impropriety

21.0          The  Respondent's  approach  in  each  of the Refusals    was procedurally improper, in that:

21.1It was inconsistent with governing statute and court custom.

21.2It was inconsistent with court custom.

21.2It was unpredictable.

21.3It was obstructive and combative.It was gratuitously obstructive of a basic right.

21.4It violated the common law on court access and transparency.

22.0The 21 December 2020 email refusal of a judge review of the Respondent’s refusal to provide an index for file SC1010/2020 was ultra vires as no law gives court registrars sovereign authority (i.e. not subject to review) to pronounce AND relied upon procedural limitations not prescribed by law.

23.0There is no remedy other   than   judicial review against the Respondent’s  21 December 2020 email refusal that blocked any judge review of the Respondent’s refusal to provide an index.

24.0 The alleged procedural improprieties identified in this claim reflect an common approach by the Respondent to document and court access generally, thereby elevating the public importance of this review.

The Respondent’s Approach was Unfair and Breached Natural Justice

25.0         The Applicant repeats paragraphs 6.0 – 20.0.

26.0         The Respondent’s email refusals of the fee waiver application breached doctrines of fairness and natural justice by operating in conflict with the constructs of the “form-based” fee waiver regime.

27.0          The Respondent’s 21 December 2020 emails declaring he was blocking the Applicant’s attempt for judge-review of his refusal to provide a copy of the SC1010/2020 file index AND judge-review of his refusal to permit an application made under the Senior Courts Act 2016 based upon an illegitimate 2013 ex parte ruling, were not provided for by law and breached the Applicant’s right to natural justice by preventing court access which he was entitled.

The Respondent’s Approach was Irrational

29.0.          The Applicant repeats paragraphs 6.0 –20.0

 

30.0           The Respondent’s 18 December 2020 email refusal which relied upon his repeated claim that document indexes do not exist for Supreme Court files is blatantly untrue and therefore irrational.

31.0           The Respondent’s subsequent revision that these indexes only exist in “numerous hard copy volumes held by the Registry” and only searchable on site is, while a helpful reversal of his earlier representations concerning of these indexes, still untrue and irrational.

The Respondent’s Approach was Based Upon an Error of Law

32.0            The Applicant repeats paragraphs 6.0 – 20.0

33.0            The Respondent’s refusal to accept a s 82(4)(b) review on the premise Guyv Bank of NewZealand [2013] NZSC 1229 prevents this statutory right enacted into law in 2016 was an error of law for two reasons:

33.1   This interpretive Guy ruling which predates the legislation provision cannot lawfully be relied upon for the reason it predates the relevant law.

33.2   Guy was made without jurisdiction as this question was not before the Court (as proven by lack of a file number on the Guy judgment), and neither did this question arise in any matter that was before the Court.

34.0             The Respondent’s 21 December 2020 email declaration that applications seeking to review his refusals for a file index and to receive an application provided under a 2016 Act “will consequently not be provided to a judge.” is based upon an error of law, as the Respondent has no authority in law to prevent either decision from a judge review and is unable to be lawfully supported.

WHEREFORE the Applicant seeks as relief:

a.     A finding one or more of the grounds are made out. accompanied by a declaration.

b.     Declarations including:

i A declaration that the Respondent may not bar judge-reviews of his decisions where statutes provide for such reviews, and specifically may not do so on the preserve reasoning he is “not making a decision”.

b. A declaration that the Respondent may not bar judge-reviews of his decisions where statutes provide for such reviews, and specifically may not do so on the perverse reasoning he is “not making a decision”.

c b. A direction that the Respondent reconsider the requests to which each Refusal relates, in a lawful manner.

[Signature and service for Wellington proceeding]