Siemer v Registrar of the Supreme Court
[2023] NZCA 324
•26 July 2023 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA114/2023 [2023] NZCA 324 |
| BETWEEN | VINCENT ROSS SIEMER |
| AND | REGISTRAR OF THE SUPREME COURT |
| AND | ATTORNEY-GENERAL |
| Court: | French and Brown JJ |
Counsel: | Applicant in Person |
Judgment: | 26 July 2023 at 11 am |
JUDGMENT OF THE COURT
AThe application for leave to appeal Cooke J’s refusal to recuse himself is declined.
BThe application for leave to appeal the High Court’s failure to acknowledge or address the applicant’s application for further and better particulars is declined.
CThe application for leave to appeal the High Court’s refusal to provide a transcript of the High Court hearing on 13 June 2022 is declined.
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REASONS OF THE COURT
(Given by French J)
Introduction
Mr Siemer seeks leave under s 56 of the Senior Courts Act 2016 to appeal what he contends to be failings or errors on the part of Cooke J in the High Court.[1]
[1]Siemer v Registrar of the Supreme Court [2022] NZHC 1724 [Cooke J decision].
The application for leave is made against the following background:
(a)a judicial review proceeding filed in the Wellington High Court by Mr Siemer against the Registrar of the Supreme Court;
(b)an interlocutory application by the Supreme Court Registrar in that proceeding for a civil restraint order against Mr Siemer; and
(c)a separate proceeding filed in the Auckland High Court by the Attorney-General also seeking a civil restraint order against Mr Siemer.
In a decision delivered on 5 May 2022, Duffy J consolidated Mr Siemer’s judicial review proceeding with the Attorney-General’s proceeding and transferred the consolidated proceeding from Auckland to the Wellington registry.[2] Duffy J also ruled that a number of earlier decisions of courts and tribunals in proceedings brought by or involving Mr Siemer were inadmissible for the purposes of the applications for civil restraint orders (the evidence ruling).[3]
[2]Attorney-General v Siemer [2022] NZHC 917 [Duffy J decision] at [9] and [25].
[3]At [149].
In his decision, delivered on 19 July 2022, Cooke J granted the Attorney‑General leave to appeal to this Court against the evidence ruling.[4] The Judge also granted an application by the Attorney-General for a stay of the consolidated proceeding pending the outcome of the appeal against the evidence ruling.[5]
[4]Cooke J decision, above n 1, at [12].
[5]At [19].
We turn now to the three matters in respect of which Mr Siemer seeks leave to appeal, noting that in order to be granted leave, Mr Siemer must persuade us that his proposed appeals raise an arguable error of law or fact involving some public or private interest where the circumstances warrant incurring further delay.[6]
Application for leave to appeal Cooke J’s refusal to recuse himself
[6]Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].
In his decision granting a stay and leave to appeal the evidence ruling, Cooke J noted that Mr Siemer had asked him to recuse himself. The Judge declined to do so.[7] In a subsequent decision, the Judge also declined to grant Mr Siemer leave to appeal to this Court against the recusal decision.[8]
[7]Cooke J decision, above n 1, at [3]–[6].
[8]As required by s 56(3) of the Senior Courts Act 2016, Mr Siemer first sought leave to appeal from the High Court but this was declined: Siemer v Registrar of the Supreme Court [2023] NZHC 285 [High Court leave decision] at [6]–[8].
Mr Siemer argues that the Judge failed to consider the grounds he had advanced for recusal, failed to provide adequate reasons and misstated the relevant legal test.
Quite apart from the issue of whether the Judge’s refusal to recuse himself amounts to a judgment, decree or order of the High Court capable of being appealed,[9] we are satisfied that the arguments Mr Siemer seeks to raise on appeal are without any merit. In his recusal decision, the Judge may have misunderstood that Mr Siemer was arguing that the Attorney-General’s applications were required to be heard by Duffy J. However, the Judge also addressed concerns about bias and predetermination which were the essence of the application and did so in a way that was, without question, consistent with the relevant legal tests.
[9]The ability to appeal under s 56(3) of the Act is premised on the existence of an order or decision on an interlocutory application as that term is defined in s 4 of the Act. As submitted by the Attorney-General, a judge’s refusal to recuse themselves is ordinarily viewed as a preliminary or administrative step rather than an order.
There is the further point that the Judge’s refusal to recuse himself from deciding the Attorney-General’s applications (or for that matter Mr Siemer’s application for leave to appeal) has no practical importance because this Court is now seized of the substantive issues.
The application for leave to appeal Cooke J’s refusal to recuse himself is therefore declined.
The application for leave to appeal against the failure to address Mr Siemer’s application for further and better particulars
On 11 December 2021, Mr Siemer filed an application in the proceeding brought by the Attorney-General for further and better particulars. In her judgment, Duffy J adjourned the application.[10] The Judge did so on the basis that Mr Siemer had chosen not to advance it at that time.
[10]Duffy J decision, above n 2, at [26] and [148].
Mr Siemer does not seek to appeal the decision to adjourn. Instead, and without taking steps to reactivate his application in the High Court, he applies for leave to appeal in respect of an alleged failure to address his application.
In our view, the proposed appeal is untenable.
First, in order to qualify as a judgment, decree or order for the purposes of the right to appeal,[11] there must be a finding or ruling by the Court which amounts to the determination of an issue. An uncontested adjournment of an application is clearly not within that definition.
[11]Senior Courts Act, s 56(1)(a).
Second, and in any event, it is clearly a more efficient and logical use of court time to resolve the evidence issue before determining the application for further and better particulars.
This application for leave to appeal is also declined.
Application for leave to appeal the refusal to provide a transcript of the 13 June 2022 High Court hearing
The hearing of the Attorney-General’s applications for stay and leave to appeal the evidence ruling took place in the High Court on 13 June 2022.
Mr Siemer later unsuccessfully sought production of the transcript of the hearing from Cooke J.[12] Mr Siemer then applied to this Court for production of the transcript. That request was denied by Goddard J. In a direction dated 31 October 2022, the Judge held that the transcript would not assist the Court in determining the evidence ruling appeal.
[12]High Court leave decision, above n 8, at [10].
Mr Siemer’s justification for now renewing his request by way of seeking leave to bring a separate appeal is that the transcript will assist the Court in determining the recusal decision appeal because it demonstrates Cooke J’s disparate treatment of the parties.
However, for the reasons already discussed, leave to bring the proposed appeal over the recusal decision is declined and it follows that so too must this application be declined. There is a further problem raised by this attempt to re-litigate the issue of the transcript and that is Mr Siemer’s failure to seek leave from Cooke J under s 56(3) of the Senior Courts Act.
Conclusion
In each of these three applications, Mr Siemer is seeking to bring an appeal that raises untenable arguments and has no prospect of success. Each falls well short of the required threshold for obtaining leave.
Each of the applications is accordingly declined.
Result
The application for leave to appeal Cooke J’s refusal to recuse himself is declined.
The application for leave to appeal the High Court’s failure to acknowledge or address the applicant’s application for further and better particulars is declined.
The application for leave to appeal the High Court’s refusal to provide a transcript of the High Court hearing on 13 June 2022 is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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