Siemer v Registrar of the Supreme Court
[2019] NZHC 2345
•17 September 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2019-485-541
[2019] NZHC 2345
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
JANE SIEMER
Applicant
AND
REGISTRAR OF THE SUPREME COURT
Respondent
Judgment: 17 September 2019
JUDGMENT OF COOKE J
[1] By notice of proceeding and statement of claim dated 23 April 2019 the applicant, Mrs Jane Siemer seeks to bring judicial review proceedings in relation to a decision of the Registrar of the Supreme Court.
[2] These proceedings have been referred to me by the Registrar under r 5.35A of the High Court Rules 2016. I am not sure why it has taken some time for the proceedings to be so referred. It seems to me that any such referral should take place more promptly.
Jurisdiction
[3]Rule 5.35A provides:
SIEMER v REGISTRAR OF THE SUPREME COURT [2019] NZHC 2345 [17 September 2019]
5.35A Registrar may refer plainly abusive proceeding to Judge before service
(1)This rule applies if a Registrar believes that, on the face of a proceeding tendered for filing, the proceeding is plainly an abuse of the process of the court.
(2)The Registrar must accept the proceeding for filing if it meets the formal requirements for documents set out in rules 5.3 to 5.16.
(3)However, the Registrar may,—
(a) as soon as practicable after accepting the proceeding for filing, refer it to a Judge for consideration under rule 5.35B; and
(b) until a Judge has considered the proceeding under that rule, decline to sign and release the notice of proceeding and attached memorandum for the plaintiff or the applicant (as appropriate) to serve the proceeding.
[4]Rule 5.35B also provides:
5.35B Judge’s powers to make orders and give directions before service
(1)This rule applies if a Judge to whom a Registrar refers a proceeding under rule 5.35A is satisfied that the proceeding is plainly an abuse of the process of the court.
(2)The Judge may, on his or her own initiative, make an order or give directions to ensure that the proceeding is disposed of or, as the case may be, proceeds in a way that complies with these rules, including (without limitation) an order under rule 15.1 that—
(a) the proceeding be struck out:
(b) the proceeding be stayed until further order:
(c) documents for service be kept by the court and not be served until the stay is lifted:
(d) no application to lift the stay be heard until the person who filed the proceeding files further documents as specified in the order (for example, an amended statement of claim or particulars of claim).
(3)Rule 7.43(3) does not apply. However, if a Judge makes an order on the Judge’s own initiative without giving the person who filed the proceeding an opportunity to be heard, the order must contain a statement of that person’s right to appeal against the decision.
(4)A copy of a Judge’s decision to strike out a proceeding must, if practicable, also be served on the person named as a party or, if more than 1 person is named, those persons named as parties to the proceeding.
(5)See rule 2.1(3)(b) concerning the exclusion of the jurisdiction and powers of a Judge under this rule from the jurisdiction and powers of an Associate Judge.
[5] As a consequence of s 8(2) of the Judicial Review Procedure Act 2016 both of these rules apply to a judicial review proceeding. The right to bring judicial review is a fundamental right, recognised by s 27(2) of the New Zealand Bill of Rights Act 1990. But the right to bring a judicial review proceeding is to do so “in accordance with law”.
[6] The power to strike out a proposed proceeding as an abuse under these rules is to be exercised sparingly. The following questions are to be asked when these rules are applied:1
(a)whether it would be manifestly unfair to the respondents that they be required to respond; and
(b)whether right thinking people would regard this Court as exercising very poor control of its processes for it to follow the applicant’s document to be treated as a proper document.
[7] It also seems to me that the normal concepts taken into account by the Court when assessing whether a proceeding is an abuse of process inform the answers to the questions referred to above.
Background here
[8] Mr and Mrs Siemer are well-known to the Courts. By a judgment dated 19 December 2018 Hinton J has made an order under ss 166(1) and (2)(b) of the Senior Courts Act 2016 preventing Mrs Siemer bringing or continuing proceedings in the following terms:2
Jane Dinsdale Siemer is prohibited from commencing or continuing, without leave, any proceeding in any Court or Tribunal, concerning or relating to Siemer v Hickson CIV-2017-044-495 and CIV-2017-044-562, including
1 Mathieson v Fildes [2017] NZHC 2258 at [4]–[7]; and Mathieson v Slevin [2018] NZHC 1032 at [6].
2 Siemer v Attorney-General [2018] NZHC 3406.
(without limitation) proceedings relating to the conduct of any judicial officer of the Disputes Tribunal, for three years.
[9] A vexatious litigant order under the Judicature Act 1908 has been made against Mr Siemer requiring him to obtain leave in the High Court or inferior court before commencing any proceedings.3
[10] The current proceedings involve a decision of the Registrar of the Supreme Court to refuse to waive the filing fee in respect of an application for leave to appeal to that Court. The application for leave was in relation to a decision of Miller J to decline to review the decision of the Deputy Registrar of the Court of Appeal not to waive the payment of a filing fee.4 The underlying intended appeal is between Mrs Siemer, the District Court at North Shore, and the Disputes Tribunal at North Shore. It relates to a decision of Fitzgerald J that Mrs Siemer breached an order of the High Court that she not further disclose a transcript of a hearing in the Disputes Tribunal.5 It would appear that the underlying litigation may be related to that which is subject of the order made by Hinton J.
[11] The Registrar of the Supreme Court declined to waive the filing fee in that Court. In accordance with s 160(4)(a) of the Senior Courts Act 2016 Mrs Siemer then sought that the decision of the Registrar be reviewed. The review was conducted by Ellen France J who by judgment dated 28 February 2019 upheld the Registrar’s decision. She held:6
[8] Having considered the submissions and other material filed in the Court by the applicant, I agree with the Registrar’s assessment. There is no challenge to the principles applied by Miller J in dismissing the application for review in the Court of Appeal. No general question arises. Whether the underlying appeal to the Court of Appeal is properly characterised as criminal rather than civil may give rise to a matter of public interest. However, in the present circumstances, where the matter is minor and there was no penalty, no matter of genuine public interest is raised. Finally, nothing turns on the choice of language adopted by the Registrar when, on the face of the document, the issues raised have been addressed.
3 At [17].
4 Siemer v District Court North Shore [2018] NZCA 558.
5 At [2].
6 Siemer v District Court at North Shore [2019] NZSC 19.
[12] Mrs Siemer then sought that the decision of the single Judge in Chambers be referred to the Supreme Court itself under s 82(4) of the Senior Courts Act 2016. The Registrar of the Supreme Court did not accept that application for filing. He said in an email dated 9 April 2019:
Mrs Siemer, s82 Senior Courts Act 2016 does not provide any statutory basis to review the 4 April 2019 Minute of France J. Please refer to Guy v The Bank of New Zealand [2013] NZSC 127 and Greer v Smith [2015] NZSC 196. As such the application for review will not be processed. Also note that no decision is being made under the rules in advising you of this position and as such there is no review that can be made of this communication to you in terms of s82.
[13] These proceedings were then filed on 23 April 2019. The proceedings challenged the decision of the Registrar contending that involves a misinterpretation of s 82, that the respondent’s actions are different than what Parliament intended, that it involved a breach of natural justice, and that it was ultra vires. Mrs Siemer seeks the following orders:
i a judgment granting the judicial review application; ii declaratory relief (to be particularized); and/or
iii such other relief as deemed fit by this Honourable Court.
Analysis
[14] It seems to me that this is an appropriate case for the Court to strike out the proposed proceedings as an abuse of process under r 5.35B. This is so for a series of inter-related reasons.
[15] First, in each of the High Court, Court of Appeal and Supreme Court there are prescribed rules which regulate the power to waive filing fees. In each case the rules are characterised by a decision being made by a Registrar, with a right to have that decision reviewed by a Judge of the Court. Those rules provide a self-contained system for dealing with the waiver of filing fees. There is no room within the scheme of the rules for decisions made by Registrars, or by Judges to be subsequently challenged by way of judicial review. There is no right to judicially review a decision made by a High Court Judge, and neither would there be a right to challenge a decision of a Registrar that can be reviewed under statutory provisions by a High Court Judge.
Equally there is no right of judicial review of a decision of a Court of Appeal Judge, or a Supreme Court Judge. Whilst the right to bring judicial review proceedings is set out in the Judicial Review Procedure Act 2016 and the Bill of Rights Act 1990, these jurisdictional limits on the right to challenge such decisions by way of judicial review are well established.7 This kind of limitation is reflected in s 27(2) of the New Zealand Bill of Rights Act 1990 which only gives a right to bring judicial review proceedings “in accordance with law”.
[16] Secondly, the proposed judicial review proceedings contest the decision of the Registrar of the Supreme Court is unlawful, or ultra vires because earlier decisions of the Supreme Court itself are wrong. They include the decisions of the Court in Greer v Smith8 and Guy v Bank of New Zealand.9 Mrs Siemer says that the decisions misinterpret what is now s 82 of the Senior Courts Act 2016. It is also alleged that the decisions in those cases were reached in breach of natural justice because the parties to that litigation were not heard in relation to those arguments. But the decisions in Guy v Bank of New Zealand and Greer v Smith are decisions of the Supreme Court which are binding on this Court. For that reason, the current proceedings have no prospect of success. It also seems to me that the decisions of the Supreme Court are obviously correct. In Guy v Bank of New Zealand the Court held:
[3] Mr Guy has now applied for other Judges of the Supreme Court to review Arnold J’s decision under s 28(3) of the Supreme Court Act 2003. That provision empowers Judges of the Court, who have jurisdiction to hear and determine a proceeding to confirm, modify or revoke a decision made by a single Judge under s 28(2).
[4] Arnold J’s decision was not, however, made under that provision. It was made under s 40, which is a specific provision in the Act dealing with review of the Registrar’s decisions concerning fees. Section 40 gives a person aggrieved by a decision of the Registrar refusing to waive a filing fee a right to have the decision reviewed by a Judge of the Court. There is no further right of review against the Judge’s decision.
[17] That reasoning applies in just the same way to the re-enacted provisions in the Senior Courts Act 2016. The decision of the Judge here was made under s 160(4)(a),
7 See Reckie v Legal Services Agency [2010] NZAR 617 (HC) at [31]; Nichols v Registrar of the Court of Appeal [1998] 2 NZLR 385 (CA).
8 Greer v Smith [2015] NZSC 196; (2015) 22 PRNZ 785.
9 Guy v Bank of New Zealand [2013] NZSC 127.
not s 82. So the Registrar was right to say that Mrs Siemer could not ask the Supreme Court itself to consider the decision of Ellen France J under s 82(4).
[18] Finally, the proposed judicial review challenge is characterised by circularity. The proposed proceeding is a judicial review challenge to the refusal of the Registrar of the Supreme Court to refer a decision of a Registrar and a Judge not to waive a filing fee to the Supreme Court itself. The filing fee is in relation to an application to leave to appeal a decision by the Registrar and a Judge of the Court of Appeal which are also decisions not to waive the payment of a filing fee. Mrs Siemer now contends that the Registrar was wrong not to refer the matter to the Supreme Court to argue again an issue that does not relate to a substantive appeal, but a peripheral procedural requirement.
[19] For the above reasons the proceedings seem to me to be abusive, and I am satisfied the requirements for striking out a proposed proceeding under rule 5.35B identified above are met. Accordingly they are struck out under r 5.35B.
[20] As is required by the rule I record that Mrs Siemer has a right of appeal against this decision.
Cooke J
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