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

SIEMER v REGISTRAR OF THE SUPREME COURT [2023] NZHC 285 [23 February 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2021-485-177[2023] NZHC 285UNDER the Judicial Review Procedure Act 2016 ands 27(2) of the New Zealand Bill of RightsAct 1990IN THE MATTER of a Judicial ReviewBETWEEN VINCENT ROSS SIEMERApplicantAND REGISTRAR OF THE SUPREME COURTRespondentCIV-2021-404-1955BETWEEN ATTORNEY-GENERALPlaintiffAND VINCENT ROSS SIEMERDefendantAppearances: Mr Siemer in personP J Gunn and N D White for RespondentJudgment: 23 February 2023JUDGMENT 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 judgmentdated 19 July 2022;11 Siemer v Registrar of the Supreme Court [2022] NZHC 1724.(b) leave to appeal a decision by me not to recuse myself from dealing withthe applications subject to that judgment;(c) leave to appeal an earlier decision of Woolford J dated 3 November2021 giving permission for the proceedings to be brought under Part 19of the High Court Rules 2016;2 and(d) directing the production of the Court transcript of appearance beforeme on 13 June 2022 for the purpose of supporting an appeal against therecusal decision.[2] An application for leave to appeal the recusal decision was earlier filed on25 July 2022.[3] By minute dated 15 December 2022 I directed Mr Siemer to file and serve anysubmissions in support within 15 working days, with submissions by the Crownparties 15 days thereafter.3 I indicated I would then consider the submissions to decidewhether 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 datesupon which the above applications were referred to me so that he could advise theCourt of his position. He referred to complaints he had made relating to how hisproceedings had been managed, including to the Chief High Court Judge and theJudicial Conduct Commissioner. Written submissions were filed by the respondentdated 20 February 2023.Decisions[4] I have considered the materials and consider that it is appropriate to determinethe 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 of2 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 putin place.[6] Mr Siemer wishes the stay to be lifted so that he can seek leave to appeal adecision not to recuse myself when addressing the applications for leave to appeal andfor a stay. I do not consider that my decision not to recuse myself is an interlocutorydecision or order capable of appeal under s 56(3) of the Senior Courts Act 2016. Asthe Supreme Court and Court of Appeal has made clear in a series of decisions inwhich Mr Siemer was himself a party, not every decision made during a proceedingattracts appeal rights.4 Were it otherwise there would be no end to potential rights ofappeal and the administration of justice would be hampered by the volume ofprocedural challenges and appeals involved. There are any number of administrativeor incidental decisions made during the course of a proceeding that do not attractappeal rights. Under s 56(3) there must be an order or decision on an interlocutoryapplication 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 thatcategory. It is true Mr Siemer here filed an application, but there was no interlocutoryorder under the High Court Rules 2016, or otherwise, that was the proper subject ofsuch an application. The fact that Mr Siemer filed such an application does not meanthe Court made an order or decision on an interlocutory application within the meaningof s 56(3).[7] If a Judge hears a case when they should have recused themselves this can formthe basis of a substantive appeal against the decision, as is illustrated by the decisionin Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2).5 Buthere there is no right to appeal, and no sensible basis upon which leave to appeal couldbe 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 longerof 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] 1NZLR 76.[8] In any event I consider the proposed appeal to be without merit, and withoutany practical significance for the reasons I have explained in this and the earlierjudgment. So even if there was a decision falling within s 56(3) I would not grantleave to appeal it.[9] I accept that the interlocutory order of Woolford J in his minute of 3 November2021 was a decision on an interlocutory application within the meaning of s 56(3), butthere is no basis upon which leave to appeal that decision could be granted. Mr Siemersought to appeal that decision at the time. This was declined by the High Court on thebasis the application had no merit.6 Mr Siemer then applied for leave to appeal fromthe Court of Appeal which was declined, including on the basis that it was not seriouslyarguable that Part 19 is generally unsuitable for proceedings of this kind.7 So thismatter has been heard and determined. Mr Siemer's further application is an abuse ofprocess.[10] I also decline to direct that a transcript of the hearing before me be producedfor similar reasons. The proceedings in this Court are stayed. The Court of Appealhas already declined to direct that such a transcript be created as it would be of noassistance to them. I have decided that no appeal can, or should proceed on thequestion whether I should have recused myself. There is no basis to require a transcriptto be created in accordance with the principles referred to in another case involvingMr Siemer, Siemer v Heron.8[11] The right of access to the Court is a fundamental one which the Court willprotect. But this must be balanced against situations where multiple proceedings, orapplications are advanced occupying the resources of the Court to the disadvantage ofother 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 theother 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 maybe filed.Cooke J