ATTORNEY-GENERAL v SIEMER [2013] NZHC 2733

ATTORNEY-GENERAL v SIEMER [2013] NZHC 2733 [18 October 2013]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2012-404-008[2013] NZHC 2733IN THE MATTER OF an application under section 88B of theJudicature Act 1908BETWEEN ATTORNEY-GENERALApplicantAND VINCENT ROSS SIEMERRespondentHearing: 18 October 2013Counsel: A M Powell for applicantG K Edgeler for respondentJudgment: 18 October 2013RESERVED JUDGMENT OF DOBSON J(Respondent's application for jury trial)[1] I heard counsel this morning, by way of telephone conference, on the application that had been made on behalf of the respondent (Mr Siemer) for these proceedings to be heard before a judge1 and jury. The application is brought in reliance on s 19B of the Judicature Act 1908 (the Act). That section provides as follows:19B All other civil proceedings to be tried before Judge alone, unless Court otherwise orders(1) Except as provided in section 19A of this Act, civil proceedings shall be tried before a Judge alone.(2) Notwithstanding subsection (1) of this section, if it appears to the Court at the trial, or to a Judge before the trial, that the civil proceedings or any issue therein can be tried more conveniently1 The application was styled as one for a proceeding to be heard by "judges and a jury", but I dealtwith the issue on the basis that if a jury trial was to occur, it would be before a single judge.before a Judge with a jury the Court or Judge may order that the civil proceedings or issue be so tried.[2] The application relied on grounds that it was in the interests of justice that a jury determine the proceedings, that factual matters to be determined related to the state of mind of Mr Siemer, and that if a jury did not determine the proceedings, they would have the appearance of lacking independence and impartiality. These points are raised in the context that many of the defendants in the proceedings issued by Mr Siemer are judges.[3] Mr Edgeler accepted that there was no precedent for proceedings brought by the Attorney-General under s 88B of the Act (that is, seeking that a litigant be declared vexatious) to be determined at a jury trial. Mr Edgeler invited an analogy with the decision in Rawlinson v Purnell, Jenkison & Roscoe, in which the Court of Appeal granted an application under s 19A(5) of the Act for a civil claim alleging the tort of malicious prosecution to be tried by a judge and jury.2[4] In Rawlinson, the Court of Appeal overturned the High Court refusal to direct a jury trial, in light of what it found to be the absence of difficult questions of law, the lack of any substantial volume of documents, and the ability for the trial judge to define factual questions for the jury which would determine the issues raised.[5] Mr Edgeler treated Rawlinson as arising in a comparable context where the core allegation was of civil proceedings having been commenced without any foundation, in circumstances alleged to have been malicious. By comparison, the present case concerns the allegation that a series of civil proceedings have been commenced by Mr Siemer without justification. Mr Edgeler submitted that substantial issues in the present case would turn on Mr Siemer's state of mind in pursuing his litigious initiatives. He submitted this is a variant on the issue inRawlinson as to whether the defendant had malicious motivation in commencing proceedings for which there was no jurisdiction.[6] Mr Edgeler was inclined to accept that the Attorney-General's proceedingsare likely to raise relatively complex mixed questions of fact and law. However, he2 Rawlinson v Purnell Jenkison & Roscoe (1996) 10 PRNZ 177 (CA).argued that that did not lessen the case for a jury trial because the trial judge could withdraw such issues from the jury, for separate determination by the judge.[7] Mr Edgeler did not accept that it was a case where the jury would be overwhelmed by the weight of documents involved in all the pleadings and other court documents in 20 or more of Mr Siemer's cases. He described Mr Siemer'spleadings as typically short and easy to follow, and submitted that the task of analysis of the documents would be less complex than juries are confronted with in document-heavy fraud trials.[8] Without conceding in any way that the Attorney-General's application should succeed, Mr Edgeler observed that if Mr Siemer is to be declared vexatious, then that message is best delivered by a jury of his peers telling him that he has gone too far. He characterised Mr Siemer as being substantially more likely to accept an adverse outcome, if it reflected the judgement of his peers, rather than from judges, who will inevitably be colleagues of many of those who Mr Siemer's various proceedingshave criticised.[9] In responding to the application for the Attorney-General, Mr Powell rejected this last point on the basis that such proceedings are not intended to be therapeutic. The forum for determining the issues ought to be determined on the conventional criteria raised under s 19B.[10] The Attorney-General opposed trial by jury because of the complexity of thecase. From the Attorney's perspective, it was a case in which the history of some 20proceedings pursued by Mr Siemer should be allowed to speak for themselves as making out the vexatious nature of his conduct. That may be made out, for example, by a pattern of Mr Siemer repeatedly raising issues that have been determined against him, and his apparent refusal to accept adverse rulings. To assess theAttorney's case would require familiarity with the form of court documents, and mixed questions of fact and law arise in discerning the effects, in terms of the outcome of judicial decisions, and the impact that has had on subsequent steps taken by Mr Siemer as a litigant.[11] Mr Powell resisted Mr Edgeler's notion that a jury trial could be convened ona basis that the appropriate questions for a jury would appear after argument. Instead, Mr Powell submitted that the range of questions that would be appropriately put to a jury should be tested when deciding whether that would be a more convenient forum. The answer, he suggested, was compellingly that it could not be because of the range of mixed questions of fact and law that inevitably arose. Mr Powell distinguished Rawlinson where the application relied on s 19A of the Act, rather than s 19B.[12] From the Attorney's perspective, Mr Siemer's anticipated response that,subjectively, he believed in the tenability and reasonableness of the causes of action he has pursued, could not be determinative. However much Mr Siemer may have subjectively persuaded himself of that view, the application could not be determined without measuring the reasonableness of such belief. In undertaking that task, the finder of fact would need to understand the effect of all of the court documents in at least 20 sets of proceedings.[13] Mr Powell went so far as to suggest that the Court would risk bringing the law into disrepute if it sought to craft questions of this type, to be answered by a jury of lay persons.[14] I do not accept Mr Edgeler's proposition that this case will be less dependenton documents, and that the documents are less complex, than is likely to arise in fraud trials. However pleadings are expressed, the form in which they are used by litigants and the Court, and the consequences they lead to in terms of judgments, involves a relatively esoteric analysis. I accept Mr Powell's point that the task ofisolating issues for a jury, and insulating the jury from mixed questions of fact and law which are likely to be inextricably linked with factual questions, would make a jury trial unacceptably unwieldy.[15] I am accordingly not prepared to order a jury trial as sought on behalf of Mr Siemer. His application is dismissed.Further timetabling[16] Mr Edgeler foreshadowed an application for an adjournment of the trial, which I recently adjourned from a start on 9 December 2013, to a start on 11 December, allowing five days to run into the week of 16 December. That deferral was to meet Mr Ellis's then concerns as to a period of unavailability after surgery. Mr Edgeler advised that Mr Ellis is likely to be indisposed for substantially more of the period between now and mid December than was the case when the present fixture arrangements were settled. Unless Mr Siemer changes counsel, which Mr Edgeler anticipates is unlikely, there will be a request for an adjournment of the trial until sometime in the New Year.[17] From the Attorney-General's perspective, Mr Powell expressed sympathy for Mr Ellis's health situation, but raised concerns at the rate at which Mr Siemer is continuing to pursue litigious initiatives. Mr Powell's instructions reflect a concernthat a determination on whether Mr Siemer's conduct is vexatious has been pendingfor some time and ought now to be given priority.[18] Accordingly, there is a prospect that an application for an adjournment will be made. From the Attorney-General's perspective, it may be met with some (apparently novel) form of application for an interim order to address Mr Siemer'slitigious conduct in the meantime.[19] I will ensure that the Registry refers any further documents filed to me.Dobson JSolicitors:Crown Law, Wellington for applicantMarshall Bird & Curtis, Auckland for respondent