Siemer v Registrar of the Supreme Court

[2023] NZHC 285

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-177

[2023] NZHC 285

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

Appearances:

Mr Siemer in person

P J Gunn and N D White for Respondent

Judgment:

23 February 2023

JUDGMENT OF COOKE J

(Application to temporarily lift stay and associated applications)

[1]By application dated 12 December 2022 Mr Siemer applies for:

(a)a temporary removal of the stay entered by this Court by judgment dated 19 July 2022;1

1      Siemer v Registrar of the Supreme Court [2022] NZHC 1724.

SIEMER v REGISTRAR OF THE SUPREME COURT [2023] NZHC 285 [23 February 2023]

(b)leave to appeal a decision by me not to recuse myself from dealing with the applications subject to that judgment;

(c)leave to appeal an earlier decision of Woolford J dated 3 November 2021 giving permission for the proceedings to be brought under Part 19 of the High Court Rules 2016;2 and

(d)directing the production of the Court transcript of appearance before me on 13 June 2022 for the purpose of supporting an appeal against the recusal decision.

[2]        An application for leave to appeal the recusal decision was earlier filed  on  25 July 2022.

[3]        By minute dated 15 December 2022 I directed Mr Siemer to file and serve any submissions in support within 15 working days, with submissions by the Crown parties 15 days thereafter.3 I indicated I would then consider the submissions to decide whether a hearing was necessary. Mr Siemer elected not to file written submissions, but by memorandum dated 6 January 2023 he said that he wanted to know the dates upon which the above applications were referred to me so that he could advise the Court of his position. He referred to complaints he had made relating to how his proceedings had been managed, including to the Chief High Court Judge and the Judicial Conduct Commissioner. Written submissions were filed by the respondent dated 20 February 2023.

Decisions

[4]        I have considered the materials and consider that it is appropriate to determine the applications on the papers.

[5]        There is no basis for temporarily lifting the stay entered in this proceeding. The stay has been imposed pending determination of the appeal by the Court of

2      Attorney-General v Siemer High Court Auckland CIV-2021-404-1955, 3 November 2021.

3      Siemer v Registrar of the Supreme Court High Court Wellington CIV-2021-485-177, CIV-2021- 404-1955, 15 December 2022.

Appeal. I see no basis for me to lift, or otherwise reconsider the stay that has been put in place.

[6]        Mr Siemer wishes the stay to be lifted so that he can seek leave to appeal a decision not to recuse myself when addressing the applications for leave to appeal and for a stay. I do not consider that my decision not to recuse myself is an interlocutory decision or order capable of appeal under s 56(3) of the Senior Courts Act 2016. As the Supreme Court and Court of Appeal has made clear in a series of decisions in which Mr Siemer was himself a party, not every decision made during a proceeding attracts appeal rights.4 Were it otherwise there would be no end to potential rights of appeal and the administration of justice would be hampered by the volume of procedural challenges and appeals involved. There are any number of administrative or incidental decisions made during the course of a proceeding that do not attract appeal rights. Under s 56(3) there must be an order or decision on an interlocutory application as defined in s 4. A decision by the Registry to allocate a particular Judge, and by the Judge to continue to sit notwithstanding objection does not fall into that category. It is true Mr Siemer here filed an application, but there was no interlocutory order under the High Court Rules 2016, or otherwise, that was the proper subject of such an application. The fact that Mr Siemer filed such an application does not mean the Court made an order or decision on an interlocutory application within the meaning of s 56(3).

[7]        If a Judge hears a case when they should have recused themselves this can form the basis of a substantive appeal against the decision, as is illustrated by the decision in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2).5 But here there is no right to appeal, and no sensible basis upon which leave to appeal could be granted to challenge the decision granting leave to appeal to the Court of Appeal. The Court of Appeal is now seized of the proceedings. The leave decision is no longer of practical significance.

4      Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309 at [31]; Re Siemer [2020] NZCA 393.

5      Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2019] NZSC 122, [2010] 1 NZLR 76.

[8]        In any event I consider the proposed appeal to be without merit, and without any practical significance for the reasons I have explained in this and the earlier judgment. So even if there was a decision falling within s 56(3) I would not grant leave to appeal it.

[9]        I accept that the interlocutory order of Woolford J in his minute of 3 November 2021 was a decision on an interlocutory application within the meaning of s 56(3), but there is no basis upon which leave to appeal that decision could be granted. Mr Siemer sought to appeal that decision at the time. This was declined by the High Court on the basis the application had no merit.6 Mr Siemer then applied for leave to appeal from the Court of Appeal which was declined, including on the basis that it was not seriously arguable that Part 19 is generally unsuitable for proceedings of this kind.7 So this matter has been heard and determined. Mr Siemer’s further application is an abuse of process.

[10]      I also decline to direct that a transcript of the hearing before me be produced for similar reasons. The proceedings in this Court are stayed. The Court of Appeal has already declined to direct that such a transcript be created as it would be of no assistance to them. I have decided that no appeal can, or should proceed on the question whether I should have recused myself. There is no basis to require a transcript to be created in accordance with the principles referred to in another case involving Mr Siemer, Siemer v Heron.8

[11]      The right of access to the Court is a fundamental one which the Court will protect. But this must be balanced against situations where multiple proceedings, or applications are advanced occupying the resources of the Court to the disadvantage of other litigants. I consider that Mr Siemer’s applications fall into the latter category.

[12]      For these reasons the application for a temporary lifting of the stay, and the other matters applied for, are all dismissed.

6      Attorney-General v Siemer High Court Auckland CIV-2021-404-001955, 17 December 2021.

7      Siemer v Attorney-General [2022] NZCA 200.

8      Siemer v Heron [2011] NZSC 116, [2012] 1 NZLR 293 at [9].

[13]      If costs are sought by the respondent on these applications a memorandum may be filed.

Cooke J