JANE DINSDALE SIEMER v THE ATTORNEY-GENERAL, FOR THE MINISTRY OF JUSTICE [2018] NZHC 3406

JANE DINSDALE SIEMER v THE ATTORNEY-GENERAL, FOR THE MINISTRY OF JUSTICE[2018] NZHC 3406 [19 December 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-000809[2018] NZHC 3406UNDER the Judicial Review Procedure Act 2016 ands 27(2) of the New Zealand Bill of RightsAct 1990BETWEEN JANE DINSDALE SIEMERApplicantAND THE ATTORNEY-GENERAL, FOR THEMINISTRY OF JUSTICEFirst RespondentCLAYTON LUKESecond RespondentHearing: 25 October 2018Appearances: No appearance by or for the ApplicantM McKillop for the First and Second RespondentsJudgment: 19 December 2018JUDGMENT OF HINTON JThis judgment was delivered by me on 19 December 2018 at 12.00 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors:Crown Law, WellingtonParty:J Siemer[1] Mrs Siemer filed this proceeding by way of application for judicial review on1 May 2018.1 Her application challenged the process adopted by the Ministry ofJustice in dealing with complaints made by her and her husband to the Ministryregarding Clayton Luke, a Disputes Tribunal Referee.[2] The Attorney-General, for the Ministry of Justice and Mr Luke, now seekstrike-out and restraint orders against Mrs Siemer.[3] The first order sought is that the statement of claim filed by Mrs Siemer againstthe respondents be struck out on the grounds that three of the four causes of action arenot reasonably arguable, and the fourth is frivolous and an abuse of process. Thesecond order sought, related to the first, is that the Court dismiss the entire proceedingbrought by Mrs Siemer against the respondents, as it is not capable of beingreformulated into a statement of claim that complies with r 15.1 of the High CourtRules 2016 (the Rules).[4] The third order sought is a civil restraint order against Mrs Siemer, of anextended effect, under ss 166(1) and (2)(b) of the Senior Courts Act 2016, in thefollowing terms:The applicant is prohibited from commencing or continuing, without leave,any proceeding in any court or tribunal, concerning or relating to Siemer vHickson CIV-2017-044-495 and CIV-2017-044-562, including (withoutlimitation) proceedings relating to the conduct of any judicial officer of theDisputes Tribunal, for three years.[5] The issue in respect of the first and second orders sought is whetherMrs Siemer's statement of claim, should be struck out in accordance with r 15.1(1)(a)and (c) of the Rules, and whether the proceeding should be dismissed in accordancewith r 15.1(2) of the Rules.21 Her statement of claim is dated 23 April 2018. The statement of claim refers to the parties asplaintiff and defendants. They should properly be applicant and respondents. I note counsel forthe Attorney-General and Mr Luke referred throughout his submissions to those parties asrespondents. I have used the correct terminology and amended the intituling accordingly.2 Though the respondents did not explicitly refer to the rule, I take it that they seek the dismissal ofthe proceeding under r 15.1(2). Under r 15.1(2), if a Court strikes out a statement of claim underr 15.1(1), it may subsequently dismiss the proceeding.[6] The issue in respect of the third order sought is whether Mrs Siemer hasbrought at least two proceedings about any matter in any court or tribunal, that are orwere totally without merit, and if that threshold is met, whether I should exercise mydiscretion to make such an order.Procedure[7] Mrs Siemer is self-represented.[8] The interlocutory application seeking strike out of Mrs Siemer's statement ofclaim and dismissal of the proceedings, and the civil restraint order, was filed on26 July 2018,3 together with two affidavits of Clayton Luke and Andrea Walker,solicitor.[9] Mrs Siemer filed a notice of opposition and, together with Mr Siemer, a jointaffidavit in response, on 1 August 2018. The affidavit is subject to an order ofFitzgerald J, by Minute of 7 August 2018, that it not be read in this proceeding. Thereason for such an order is that Fitzgerald J had previously ordered, by Minute of31 May 2018, that the dissemination of one of the exhibits contained within theaffidavit be prohibited. That exhibit was only to be produced in a separate proceedingconcerning judicial review of the District Court and the Disputes Tribunal. It appearsthat shortly after the order was made on 31 May 2018, Mrs Siemer annexed a copy ofthe exhibit to two separate proceedings before this Court, including the present.[10] Sometime later, Mrs Siemer applied for retrospective leave to adduce theprohibited exhibit in this proceeding. Fitzgerald J, by Minute of 31 August 2018,declined leave, as she considered that there was no discernible basis on Mrs Siemer'spleadings for the relevance of that exhibit.[11] On 1 August 2018, Fitzgerald J set timetabling directions for the respondents'present application, including setting the hearing date for 25 October 2018. On3 August 2018, Mrs Siemer was notified of the hearing date.3 The application also sought an order that the respondents be excused from filing a statement ofdefence until further order of the Court. This was granted by Fitzgerald J in her Minute of1 August 2018.[12] The Registrar received no communication from Mrs Siemer regarding thehearing date until 21 September 2018, when Mrs Siemer emailed advising that shewas overseas from 16 October 2018 to 2 November 2018. Mrs Siemer stated: "Thissaid, I am perfectly content for the strike out to be determined on the papers."[13] Fitzgerald J, by Minute of 3 October 2018, stated that she did not consider itappropriate for the respondents' application to be dealt with on the papers,acknowledging this was properly a matter for the Judge to whom the hearing wasallocated. She suggested Mrs Siemer seek an adjournment to a date when she wouldbe available and in the country.[14] Mrs Siemer replied to the 3 October 2018 Minute on 8 October 2018, statingthat she had "no intention of physically appearing in Mr Luke's application seekinga general order barring me court access and to strike out my Ministry of Justice judicialreview "[15] Mrs Siemer also filed an affidavit on 8 October 2018, replacing the affidavitFitzgerald J ordered not be read in this proceeding.[16] On 15 October 2018, Mrs Siemer filed "Written and Oral Submissions ofPlaintiff in Opposition to Interlocutory Application" relating to both applications.General background[17] Mrs Siemer is married to Vincent Siemer, who has an extensive history oflitigation and is currently subject to a vexatious litigant order under the Judicature Act1908. The terms of that order are that Mr Siemer must obtain the leave of theHigh Court before commencing or continuing any proceeding in the High Court orany inferior court.[18] Mrs Siemer has been a party to some of Mr Siemer's litigation and has alsocommenced litigation in her own name. I subsequently refer in greater detail toMrs Siemer's litigation history when considering whether to grant an order unders 166(1) of the Senior Courts Act 2016.[19] In 2017, Mrs Siemer and Mr Siemer jointly issued a proceeding in theDisputes Tribunal seeking $12,000 in damages for breach of contract againstJude Hickson, a builder the couple had engaged to undertake recladding work at theirhome in Whangaparaoa. This proceeding was in contravention of the vexatiouslitigant order against Mr Siemer.4 Mrs Siemer, around the same time, also initiatedher own separate proceeding against Mr Hickson for an alleged accidental doublepayment of an invoice issued by Mr Hickson, and sought the return of $6,141. Thetwo proceedings were consolidated and heard together (the Hickson proceedings).[20] Mr Luke was the Disputes Tribunal Referee who adjudicated on their claims.On 3 October 2017, he dismissed the Siemers' claims in the Hickson proceedings. Hefound $6,281 was still owed to Mr Hickson, which exceeded the accidental doublepayment, and that was to be offset.[21] Mrs Siemer appealed to the District Court, which dismissed her appeal.5[22] Since that time, Mrs Siemer has taken all of the following actions following onfrom the Hickson Disputes Tribunal proceedings:(a) She commenced a judicial review proceeding against the DisputesTribunal and the District Court in respect of their decisions.6 Thatproceeding was to be heard before Downs J, on 1 November 2018.However, Mrs Siemer did not appear and Downs J, by Minute,adjourned the matter until 1 March 2019.(b) She has made numerous complaints about the conduct of Mr Luke tothe Ministry of Justice and the New Zealand Law Society (the LawSociety).(c) She initiated a judicial review proceeding against both Mr Luke and theLaw Society in respect of the Standards Committee's response to one4 It is unclear how Mr Siemer managed to file a proceeding in his own name.5 Siemer v Hickson [2018] NZDC 4262.6 Siemer v District Court HC Auckland CIV-2018-404-610.of her complaints.7 In a memorandum to the Court in that sameproceeding, on 1 May 2018, she stated that " [Mr Luke] abuses hiswife, allegedly."(d) By email sent by Mr Siemer on 19 February 2018, the couple jointlysought a payment from Mr Luke in the order of $8,000, in settlementof "all matters" between them and Mr Luke.(e) On 27 February 2018, Mrs Siemer made an ostensible request for legaladvice from Mr Luke, through his (genuine) website. She sought"advice" as to whether she could sue Mr Luke in the Disputes Tribunalfor revealing the settlement proposal to the Law Society, and forwrongfully accusing her of extortion.(f) On 28 February 2018, she commenced proceedings in the DisputesTribunal against Mr Luke following his response to the settlement offerreferred to above, and her request for "advice" from him.8 She claimsthat Mr Luke breached the Evidence Act 2011 by revealing thesettlement proposal to the Law Society, and that he had wrongfullyaccused her of extortion. On 31 May 2018, she filed a memorandumin that proceeding stating: "This case is not about the respondent'sunhappy childhood, not about why he legally changed his name toClayton Luke "[23] Also relevant to the present applications, because it is claimed that the Siemersacted in concert, is Mr Siemer's conduct. Mr Siemer has engaged in similar behaviourtowards Mr Luke:(a) He complained about Mr Luke to the Law Society on 10 October 2017.7 Siemer v New Zealand Law Society [2018] NZHC 2400.8 Siemer v Luke DT North Shore CIV-044-319; Mr Luke, in his affidavit of 24 July 2018, recordsthat this proceeding has not yet been determined.(b) He contacted the Minister of Justice on 2 November 2017, regarding acomplaint about Mr Luke and Anne Darroch, the Principal DisputesReferee (the Principal Referee).(c) On 24 November 2017, he made an ostensible request for legal advicefrom Mr Luke, through Mr Luke's genuine website. He sought"advice" on how to appeal against an "incompetent or corrupt decisionmaker", and how to make complaints about that decision maker.(d) He published an article on his own website, kiwisfirst.co.nz, whereMr Luke is referred to as a "bottom-feader [sic]", and suggested thatthe Law Society is likely to minimise any negative conduct ofMr Luke's in a manner similar to the Catholic Church's response toprotecting "pedophile [sic] priests".(e) On 10 October 2017, he distributed flyers at the North Shore DistrictCourt, by sliding one under the hearing room door of the DisputesTribunal. A flyer was also left in the letterbox of Mr Luke's residentialaddress. These flyers directed recipients to a false website aboutMr Luke that was clearly intended to disparage Mr Luke bothprofessionally and personally. The website claimed to provide: "Insightinto Clayton Luke's novel and limited knowledge of the law "(f) In early July 2018, a sandwich board, depicting the images of Mr Lukeand Anne Darroch, the Principal Referee, was erected on Council landnext to the North Shore District Court, offering "FREE TribunalReferree [sic] Advice Save Dollars!". This was submitted to haveclearly been the work of Mr Siemer on the basis that it also depictsMs Darroch, who has also been the subject of complaints by theSiemers. This is clearly a reasonable inference.Strike-out applicationLaw[24] Under r 15.1(1)(a) of the Rules, the Court may strike out all or part of astatement of claim if it discloses no reasonably arguable cause of action.[25] In Attorney-General v Prince, the Court of Appeal summarised the establishedcriteria for striking out in such circumstances:9(a) Pleaded facts are assumed to be true. This does not extend to pleadedallegations which are entirely speculative.(b) The cause of action must be clearly untenable.(c) The jurisdiction is to be exercised sparingly and only in clear cases.(d) The jurisdiction is not excluded by the need to decide difficult questionsof law.[26] Under r 15.1(1)(c) of the Rules, the Court may strike out all or part of astatement of claim if it is frivolous or vexatious.[27] Under r 15.1(2) of the Rules, if the Court strikes out a statement of claim, itmay by the same or subsequent order dismiss the proceeding.The complaints process[28] The essence of Mrs Siemer's judicial review application is a challenge to thehandling by the Ministry of Justice of the complaints made by Mr and Mrs Siemerabout Mr Luke. Further detail is therefore required in respect of that complaintsprocess.[29] On 28 February 2018, Mr Siemer made a complaint to the Ministry of Justiceregarding Mr Luke.9 Attorney-General v Prince [1998] 1 NZLR 262 at 267.[30] A Ministry of Justice staff member, Alex Pickard, responded to Mr Siemer'scomplaint on 2 March 2018. He noted that as set out in a letter dated 20 December2017 addressed to Mr Siemer, the Ministry had provided all the information it wasable to provide and would not enter into any further correspondence on the mattersraised by him.[31] On 23 March 2018, Mr Siemer then sought to commence judicial reviewproceedings concerning the handling of his complaint. He first needed to seek leave,which was refused by Peters J on 11 April 2018.10[32] Despite this, the following day, 12 April 2018, Mr Siemer again sought leaveto commence proceedings against the Ministry of Justice. Venning J, by Minute of19 April 2018, found that there was no jurisdiction to reconsider a refusal to grantleave and dismissed Mr Siemer's claim.[33] On 3 March 2018, Mrs Siemer sent her own complaint to the Ministry ofJustice, which substantially reiterated Mr Siemer's complaint of 28 February 2018.The essence of that complaint alleged misconduct on the part of Mr Luke, and inparticular claimed the following:(a) Mr Luke's conduct as the Disputes Tribunal Referee at the hearing ofthe Hickson proceedings was reprehensible.(b) Mr Luke has and continues to receive money in advance for legaladvice he provides to claimants appearing before the Disputes Tribunal.(c) Mr Luke deliberately and maliciously shared a confidential settlementoffer made by Mrs Siemer, with a third party, with the aim of gainingan improper pecuniary and personal benefit.(d) Mr Luke accused Mrs Siemer of committing the criminal act ofextortion.10 Siemer v Ministry of Justice [2018] NZHC 646.(e) Mr Luke had stated he had a defence to a Law Society complaint madeagainst him by Mrs Siemer, which he could not raise because he is ajudicial officer.[34] On 28 March 2018, the Ministry of Justice responded to both complaints viaidentical letters to both Mrs Siemer and Mr Siemer. The Ministry said that the firstcomplaint, concerning Mr Luke's conduct during the hearing of the Hicksonproceedings, had been referred to the Principal Referee. It further noted that, if thePrincipal Referee determined that the complaint warranted investigation, furthercorrespondence may follow.[35] Concerning the other four allegations, the letters had this to say:The other four allegations are in relation to matters that you have raised withthe New Zealand Law Society and alleged breaches of the rules that governlawyers. Neither the Ministry of Justice or the Principal Referee have a rolein investigating complaints of this nature.[36] Mrs Siemer commenced the current proceeding by way of statement of claim,filed on 1 May 2018, pleading that the Ministry of Justice's approach to dealing withthe complaints was "substantively unfair"; "based upon irrelevant considerations"; "abreach of natural justice"; and "ultra vires".Overview of submissions[37] The respondents say that three of Mrs Siemer's four causes of action are notarguable in law. These are the first, third and fourth causes of action, contained inMrs Siemer's statement of claim. Those causes of action plead "substantiveunfairness", "breach of natural justice" and "ultra vires".[38] The respondents say that the other cause of action, pleading "irrelevantconsiderations", might be arguable in law by reference to considerations contained inthe Ministry of Justice's complaints procedure or s 6C of the Disputes Tribunal Act1988. That said, the respondents submit that such a cause of action is, in any event,frivolous and ought to be struck out as an abuse of process under r 15.1(1)(c) of theRules.[39] As noted earlier, Mrs Siemer filed brief submissions. By and large, these wentno further than suggesting impropriety on the part of the Ministry of Justice, thePrincipal Referee and Mr Luke. Unfortunately, her submissions do not respond to thespecific arguments raised by the respondents as to why the causes of action inMrs Siemer's statement of claim should be struck out.[40] Mrs Siemer said in her submissions that she would not be drawn intoresponding to "Crown Law's mud-slinging". She also suggested that therespondents, in concert, have turned this "simple judicial review claim into acircus."[41] I will refer to the comments made in Mrs Siemer's written submissions, whererelevant.AnalysisPreliminary issues[42] There are three preliminary issues for consideration prior to addressing thestatement of claim.[43] First, the respondents point out that there is no explicit statutory power forprocessing and responding to complaints about Disputes Tribunal members, such asMr Luke. However, the Ministry of Justice has adopted a procedure for processingsuch complaints, which it has published on its website.[44] The complaints procedure sets up an official correspondence email address,which operates as a "clearinghouse" for complaints. The response of the Ministrydepends on the nature of the complaint. Where a complaint is made which concernsthe conduct of a Disputes Tribunal Referee, the Ministry will forward that complainton to the Principal Referee for her consideration, although the Ministry does not andcannot make any guarantee that the Principal Referee will conduct an investigation.On the other hand, if a complaint concerns the decision of the Disputes Tribunal in aparticular case, is vexatious, made in bad faith, or has previously been considered, theMinistry makes it clear that it will be dismissed outright. Otherwise, it undertakes toconsider complaints seriously, thoroughly and impartially.[45] The respondents submit, and I accept, that such a complaints procedure reflectsthe functions of the Principal Referee, under s 6C(1)(a), (b) and (h) of the DisputesTribunal Act 1988, in that it is a partial delegation of an administrative aspect of thePrincipal Referee's functions. As is apparent from the Principal Referee's report tothe High Court, contained in the affidavit of Mrs Siemer, the Principal Referee treatsthe Ministry as the first line of response to general correspondence and complaintsconcerning the Disputes Tribunal.[46] Second, the respondents point out that Mrs Siemer's statement of claim pleadsthat both the 2 March 2018 rejection email from Mr Pickard, and the 28 March 2018letters, were unlawful. The respondents argue that the email from Mr Pickard is notreviewable on any basis. That is because the email was entirely overtaken by theletters of 28 March, which are the operative reviewable act. Relief in respect ofMr Pickard's 2 March email would inevitably be declined because any effect thatemail had has been negated and overtaken by the subsequent 28 March letters. I agree.[47] Third, Mrs Siemer makes a broad-ranging submission to the effect that herright to pursue judicial review is "guaranteed by statute as a preferred right in law, aheightened legal threshold". In support, she cites ss 6 and 27(2) of the New ZealandBill of Rights Act 1990. Section 27(2) provides:27 Right to justice(2) Every person whose rights, obligations, or interests protected or recognisedby law have been affected by a determination of any tribunal or other publicauthority has the right to apply, in accordance with law, for judicial reviewof that determination.[48] As the Court of Appeal made clear in Southern Ocean Trawlers Ltd vDirector-General of Agriculture and Fisheries, the principles to be applied on anapplication to strike out judicial review proceedings are no different to those to beapplied in any other case.11 The Court of Appeal did not consider the New ZealandBill of Rights Act 1990. However, considering the extremely high threshold requiredto be met before a cause of action can be struck out, I consider that ordinary principlesof strike out are a reasonable limit on Mrs Siemer's right to apply for judicial review,that can be demonstrably justified in a free and democratic society.12First cause of action – "substantive unfairness"[49] Mrs Siemer's statement of claim pleads at paragraphs 15 to 17 that:15.0 - The Rejection's [2 March 2018] reason that the Complaint would notbe considered due to a supposed letter [20 December 2017] which predatedevents and evidence, denied the Plaintiffs elementary access to the FirstDefendant's official complaint remediation process and was substantivelyunfair.16.0 - The Letter's dismissiveness of 5 complaints concerning the SecondDefendant's behaviour was equally unfair and the reasons given irrelevant.17.0 - The First Defendant gave no relevant or lawful reason for denying thePlaintiffs elementary access to its official complaint procedure and this wassubstantively unfair.[50] The respondents submit that "substantive unfairness" as Mrs Siemer haspleaded in the above paragraphs is merely different terminology forunreasonableness,13 and that neither the complaints procedure, nor its particularapplication in this case, was unreasonable. The only guarantee contained in thecomplaints procedure is that appropriate complaints will be passed on to the PrincipalReferee, at which stage she may engage in a discretionary exercise of her functionsunder s 6C of the Disputes Tribunal Act 1988.[51] At paragraph 15, Mrs Siemer pleads that the response of 2 March 2018 wassubstantively unfair. As noted above, the 2 March 2018 email was overtaken by the28 March 2018 letters. Therefore, I consider review in respect of the 2 March 2018email is clearly untenable and cannot succeed. I would strike out the cause of actionat paragraph 15.11 Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53at 63.12 New Zealand Bill of Rights Act 1990, s 5.13 Graham Taylor Judicial Review: A New Zealand Perspective (4th ed, LexisNexis, Wellington,2018) at 748.[52] As to the causes of action contained at paragraphs 16 and 17, the respondentspoint out that the Ministry's complaints procedure applies "if you believe you havebeen treated badly or rudely by a member of a Tribunal hearing your case".[53] The Ministry's letters of 28 March 2018 dismissed four of the five complaintsby Mr and Mrs Siemer relating to Mr Luke. These complaints did not allege thatMr Luke had acted "badly or rudely" in his capacity as a Disputes Tribunal Referee atthe hearing of the Hickson proceedings. The Ministry did refer the single complaintconcerning Mr Luke's conduct during the hearing to the Principal Referee. Moreover,the letter did give a reason for dismissing the four complaints, and this reason isentirely consistent with the application of the complaints procedure to cases ofill-treatment by a referee.[54] I consider that the claim that the Ministry's conduct in respect of the letters of28 March 2018 was "substantively unfair", or unreasonable for that matter, is clearlyuntenable and cannot succeed.[55] I would strike out the causes of action at paragraphs 16 and 17.Second cause of action – "irrelevant considerations"[56] Mrs Siemer's statement of claim pleads at paragraphs 18 and 19 that:18.0 - The Rejection's [2 March 2018] reliance upon a supposed letter from[20] December 2017 which predated events and evidence relied upon in theComplaint was an irrelevant consideration.19.0 - The Letter's reliance upon the Second-named Plaintiff making similarcomplaints to other entities as a reason for not considering the Complaintmerits was irrelevant.[57] As to paragraph 18, irrespective of whether the 20 December 2017 letter wasan irrelevant consideration for the Ministry of Justice to rely upon when issuing therejection email of 2 March 2018, that cause of action cannot succeed because it hasbeen superseded by the letters of 28 March 2018 as the operative reviewable act. Iwould strike out the cause of action at paragraph 18.[58] As to paragraph 19, the respondents submit that the claim is frivolous andought to be struck out as an abuse of process.[59] The Ministry's reasons for dismissing the complaints in the 28 March 2018letters, were that the Siemers had referred those matters to the Law Society, thecomplaints were of alleged breaches of the rules governing lawyers, and neither theMinistry, nor the Principal Referee have a role in investigating complaints of such anature. Those reasons are clear and accord with the intention of the Ministry'scomplaints procedure and s 6C of the Disputes Tribunal Act 1988.[60] There is no explicit statutory obligation for the Principal Referee to considercomplaints regarding referees. Where complaints touch upon the referee's conductbeyond their role with the Disputes Tribunal, it is undoubtedly a permissibleconsideration to decline to further consider a complaint, where it can be resolved by amore appropriate investigative or disciplinary body.[61] I would strike out the cause of action at paragraph 19.Third cause of action – "natural justice"[62] Mrs Siemer's statement of claim pleads at paragraph 20 that:20.0 - The First Defendant's refusal to consider the Complaint merits andevidence was a breach of its official obligation to do so and, in so doing,breached the Plaintiffs' right to natural justice in the First Defendant'scomplaint process.[63] Mrs Siemer points to the report of the Principal Referee, which she submits isconfirmation of the Principal Referee's statutory duty to address these complaints.That is incorrect. The Principal Referee's report clearly states that the complaintsprocedure is to deal with complaints made to her or the Ministry of Justice, concerningthe conduct of Referees in hearing an applicant's case, not in any other context.[64] The respondents submit that the Ministry of Justice has no official obligationto consider the merits and evidence of a complaint. That is undoubtedly correct. Thecomplaints procedure reveals that the Ministry of Justice acts only as a clearing-housefor complaints. It also makes it clear that, where the complaint concerns the DisputesTribunal's decision, has no bearing on the functions of the Disputes Tribunal, or isfrivolous, vexatious or otherwise not made in good faith, the complaint will bedismissed.[65] I would strike out the cause of action at paragraph 20.Fourth cause of action – "ultra vires"[66] Mrs Siemer's statement of claim pleads at paragraph 21 that:21.0 – The "advisor" of "communications" [Mr Pickard] who issued theRejection [2 March 2018] was unqualified to so prevent the Plaintiff'shusband's complaint, rendering the rejection ultra vires.[67] The respondents submit that, if the Court accepts that the Ministry of Justicehas an implied power to adopt the complaints procedure, for instance because thePrincipal Referee had delegated part of her role to the Ministry of Justice, then no errorof law claim regarding the qualification of a staff member to deal with the complaintcan possibly succeed. This is because there are no positive statements of lawgoverning the operation of the complaints procedure in such circumstances.Therefore, it cannot be said to be reasonably arguable that Mr Pickard was unqualifiedat law to issue the rejection.[68] I accept the premise that the Ministry of Justice has an implied power to adoptthe complaints procedure and therefore it cannot be reasonably arguable thatMr Pickard was unqualified at law to issue the rejection.[69] In any event, this cause of action relates to the 2 March 2018 rejection letter,which I have held was superseded as the operative reviewable act, by the letters of28 March 2018.[70] I would strike out the cause of action at paragraph 21.Abuse of process[71] The respondents also submit that the proceeding is an abuse of process andought to be struck out under r 15.1(1).[72] They suggest that Mrs Siemer's claim substantially duplicates Mr Siemer's twoprevious attempts to institute proceedings against the respondents. As such, it issubmitted that Mrs Siemer is attempting to circumvent the vexatious litigant ordermade against her husband.[73] The respondents point out that:(a) Mrs Siemer's complaint to the Ministry of Justice about Mr Lukeessentially duplicates Mr Siemer's.(b) Portions of Mrs Siemer's statement of claim challenging thedecision-making process of the Ministry of Justice are identical toMr Siemer's.(c) The signature on the statement of claim was originally that ofMr Siemer, but has been crossed out and replaced with Mrs Siemer's.[74] In the same vein, I note that the front cover of Mrs Siemer's statement of claimstates that it was filed by Mr Siemer.[75] The respondents also point out that the underlying Disputes Tribunal hearingbefore Mr Luke, was an abuse of process as it was commenced in breach ofMr Siemer's vexatious litigant order.[76] The respondents also allege that the proceeding is part of a larger campaign ofharassment, directed towards Mr Luke.[77] I agree with each of the above submissions.[78] As outlined in Attorney-General v Siemer (the High Court proceedingconcerning Mr Siemer's own vexatious litigant order), Mr Siemer has an extensivehistory of making complaints about judicial officers, and vexatious naming of judicialofficers as parties to litigation.14 Mrs Siemer has now named Mr Luke, a judicial14 Attorney-General v Siemer [2014] NZHC 859.officer, as a respondent in this proceeding, though all four causes of action appear torelate solely to the procedure adopted by the Ministry of Justice in dealing with thecomplaints made by the Siemers.15[79] Mr and Mrs Siemer have also pursued other non-judicial methods ofharassment of Mr Luke. This has included the making and disseminating of viewsabout Mr Luke on Mr Siemer's website, distribution of flyers, the sandwich boardoutside the District Court, and vexatious requests for legal advice from Mr Luke.[80] The respondents submit, and I wholly accept, that an inference can be drawnthat this proceeding, in no small part, has been undertaken as a means to harassMr Luke. There is also no question but that Mr and Mrs Siemer have been acting inconcert.[81] Were I not striking out all four causes of action in the statement of claim onother bases, I would strike out the statement of claim as an abuse of process for theforegoing reasons.Conclusion on strike-out[82] I consider that the lack of reasonably arguable causes of action and the abuseof process issues cannot be cured by an amended pleading. The defects inMrs Siemer's statement of claim run too deep. As such, I would order that theproceeding be dismissed in its entirety under r 15.2 of the Rules.Civil restraint order applicationLaw[83] As noted at the outset of this judgment, the respondents also seek an "extendedorder", under ss 166(1) and (2)(b) of the Senior Courts Act 2016. The effect of thatorder is to restrain Mrs Siemer from commencing or continuing civil proceedings ona matter related to the Hickson proceedings.1615 The respondents did not seek that the proceeding be struck out against Mr Luke on this basis.16 Senior Courts Act 2016, s 166(4). Section 166 also provides for limited orders (restraint over aparticular matter) and general orders (restraint over any civil proceeding).[84] Section 167 of the Senior Courts Act 2016 sets out when an extended ordermay be made under s 166(1). The circumstances are relevantly:167 Grounds for making section 166 order(2) A Judge may make an extended order under section 166 if, in at least 2proceedings about any matter in any court or tribunal, the Judge considers thatthe proceedings are or were totally without merit.(5) The proceedings concerned must be proceedings commenced or continued bythe party to be restrained, whether against the same person or differentpersons.[85] The applicant for an order needs to demonstrate that the respondent hascommenced or continued at least two proceedings that were "totally without merit".An order remains discretionary. The Court still has to consider it appropriate.[86] The term "totally without merit" is not defined in the Senior Courts Act 2016.In Genge v Visiting Justice Christchurch Men's Prison, Nation J referred to the factorsidentified by the Ministry of Justice in its Departmental Report to the Justice andElectoral Committee, as relevant to determining whether a proceeding is totallywithout merit.17 Those factors are:(a) The proceedings have no prospect for success, whatsoever;(b) The proceedings expose the defendants to inconvenience, harassmentand expense out of all proportion to the gain a plaintiff is likely toreceive;(c) The proceedings are brought at the drop of a hat despite the lack ofmerit;17 Genge v Visiting Justice Christchurch Men's Prison [2018] NZHC 1457 at [29].(d) The litigant has paid no regard to the merits, proportionality or costs ofthe proceeding;(e) The statement of claim or defence discloses no reasonable grounds ofbringing or defending the claim;(f) The statement of claim is an abuse of the Court's process or is otherwiselikely to obstruct the just disposal of the proceeding; and(g) The litigant has failed to comply with a rule, practice direction or courtorder.[87] Under the former s 88B of the Judicature Act 1908, the predecessor to s 166,the proceedings instigated were required to be vexatious.18 While no longer an explicitrequirement, the test for vexatiousness is still relevant as to whether an order isnecessary. McGechan notes the following indications that a proceeding wasvexatious:19(a) The pattern of complex, prolix, and sometimes incomprehensiblepleadings.(b) The proceedings showing the respondent to be an almost compulsivelitigant against a widening circle of defendants.(c) Extravagant claims or scandalous allegations which the litigant has noprospect of substantiating or justifying.(d) The frequency with which part or all of the respondent's statements ofclaim have been struck out.18 The order against Mr Siemer was made under s 88B, and is the equivalent of what is now a generalorder under s 166.19 Andrew Beck and others McGechan on Procedure (online looseleaf ed, Thompson Reuters)at [J88B.04].(e) The extent to which the respondent allowed their proceedings to liedormant.[88] As noted by Nation J in Genge20 and also Ronald Young and Brown JJ in theirjoint judgment declaring Mr Siemer a vexatious litigant,21 the Court should be slow tomake a restraint order as it amounts to a breach of a person's right of access to justice.However, where appropriate, considering the worry and expense that the opponents ofmeritless litigation face, and the barely sufficient resources of the judicial system toafford justice without unreasonable delay to those who have genuine grievances, aCourt should exercise its discretion to make an order.22AnalysisThe totally meritless proceedings[89] An order under s 166 necessitates at least two totally meritless proceedings.The present proceeding is clearly one. I consider there are at least two otherproceedings in that category, being Siemer v Stiassny and Siemer v Auckland HighCourt.23[90] In Siemer v Stiassny, Mr and Mrs Siemer brought a proceeding against, amongothers, the Solicitor General, the Judicial Conduct Commissioner and "the ChiefJustice of the Supreme Court of New Zealand". The statement of claim allegedconspiracy to injure by unlawful means and misfeasance in public office. Theproceeding also largely sought to relitigate matters that had already been determinedin prior judgments in relation to Mr Stiassny, who was a receiver of one of Mr Siemer'scompanies.[91] Mrs Siemer played a significant role in the Stiassny proceeding, being listedon the cover page as the person who submitted the claim, and signing and submittingthe notice of opposition to strike out.20 At [30].21 Attorney-General v Siemer [2014] NZHC 859 at [50]–[52].22 Attorney-General v Jones [1990] 1 WLR 859 (CA) at 865.23 Siemer v Stiassny HC Auckland CIV-2008-404-6822, 30 November 2009; Siemer v Auckland HighCourt [2013] NZHC 3540.[92] The Stiassny proceeding was struck out by Winkelmann J on the basis that theclaim could not succeed and that the proceeding was an abuse of process because itattempted to relitigate existing proceedings.24 An appeal to the Court of Appeal wasdismissed.25 An application for the Court of Appeal to recall its judgment was alsodismissed,26 and an application for further leave was declined by the Supreme Court.27[93] Ronald Young and Brown JJ, in their joint judgment declaring Mr Siemer avexatious litigant, stated that the Stiassny proceeding was vexatiously instigated, andcontinued, and was an attempt to relitigate that which had already been finallydetermined.28 They also noted that much of the claim was abusive towards Judges,and others involved in the litigation.29[94] In Siemer v Auckland High Court, Mrs Siemer alone filed a proceeding,naming Hansen J as a party, and claiming that a security for costs order upheld by theJudge had caused her economic damage in the realm of $150,000.30 Toogood J heldthat since the claims against the High Court and Hansen J were barred by judicialimmunity, the claims were untenable.31 He also held that the proceeding was an abuseof process as the subject matter of the proceedings, being the security for costs order,had been before the courts in the past; that Mrs Siemer had exhausted the proper meansavailable to her to challenge the order, and therefore any further attempt at having theissues heard was an attempt to relitigate.32Other relevant matters[95] The respondents rely in addition on other matters referred to below.[96] Mrs Siemer has most recently sought to commence proceedings againstAnne Darroch, the Principal Referee, in the Disputes Tribunal. The respondentssubmit that this proceeding was totally meritless. However, it was not accepted for24 Siemer v Stiassny HC Auckland CIV-2008-404-6822, 30 November 2009.25 Siemer v Stiassny [2011] NZCA 1.26 Siemer v Stiassny [2011] NZCA 144.27 Siemer v Stiassny [2011] NZSC 43.28 At [121].29 At [121].30 Siemer v Auckland High Court [2013] NZHC 3540.31 At [38].32 At [46].filing by a District Court Registrar, a decision upheld on review by Judge Sharp. Iconsider it debatable therefore whether this proceeding was "commenced orcontinued" by Mrs Siemer. I do not need to decide the point, as there are at least threeproceedings which do qualify. I accept, in any event, that this attempted proceedingis relevant to my discretion. The claim against Ms Darroch was essentially that thePrincipal Referee did not exercise her powers in a manner consistent with justice orthe Disputes Tribunal Act 1988, when she decided not to disqualify Mr Luke in theHickson proceedings. Such a claim is clearly outside the boundaries of jurisdictionconferred upon the Disputes Tribunal. As the Principal Referee report notes, thePrincipal Referee does not have jurisdiction to remove a Referee from a DisputesTribunal hearing. The attempted proceeding was therefore meritless.[97] As noted earlier, Mrs Siemer has also commenced related proceedings againstthe Law Society and Mr Luke, challenging the Law Society's treatment of hercomplaint regarding Mr Luke.33 Courtney J dismissed that proceeding and orderedcosts against Mrs Siemer when she failed to appear at the hearing despite a warningin a 7 August 2018 Minute of Fitzgerald J that the matter would not be dealt with onthe papers.34[98] In that same proceeding, Mrs Siemer filed a memorandum, to whichFitzgerald J responded in a Minute of 3 May 2018, saying that " Mrs Siemer is notto include inflammatory, scandalous and what she herself accepts to be irrelevantmaterial in her case management memoranda (or other court documents). Were she tocontinue to do so, it would give rise to a concern that the proceedings were beingpursued for a collateral purpose, namely to smear [Mr Luke's] name".[99] Mrs Siemer has also recently brought a Disputes Tribunal claim againstMr Luke personally, for disclosing the contents of the settlement offer made byMrs Siemer, to the Law Society, and for wrongfully accusing her of committingcriminal extortion.3533 Siemer v New Zealand Law Society [2018] NZHC 2400.34 At [3].35 Siemer v Luke DT North Shore CIV-2018-004-319.Conclusion on restraint order[100] I consider the threshold for an order under s 166(1) of the Senior Courts Act2016 has been met. On the basis of the matters I have outlined in the foregoingparagraphs, I am satisfied that Mrs Siemer has brought at least two (in fact three)proceedings which have been totally without merit. Those are the current proceeding,Siemer v Stiassny, and Siemer v Auckland High Court.[101] Those proceedings had no prospect of success whatsoever, and appear to havebeen orchestrated substantially to harass and inconvenience the respective defendants.[102] I also consider that this is a case where the discretion to grant an extended ordershould be exercised in the respondents' favour. I take into account my findings above,both in relation to the three meritless proceedings, and also the other proceedings, orattempted proceedings, to which I have referred.[103] I also take into account the joint campaign of harassment waged by Mr andMrs Siemer against Mr Luke and others, both inside and outside the courts, and myconclusion that Mrs Siemer is fronting litigation to circumvent the vexatious litigantorder made against her husband.[104] I reject Mrs Siemer's submission to the effect that no Court or complaintsservice has made an inquiry into her allegations against the respondents and that theCourt should not therefore grant the s 166 order. The Ministry of Justice did considerher complaints. The Ministry decided to dismiss four, and refer one to thePrincipal Referee. Furthermore, I have in this proceeding considered, and struck outMrs Siemer's causes of action against the Ministry regarding her complaints.[105] While a civil restraint order is not to be imposed lightly, I consider that nolesser measure than an extended order on the terms sought by the respondents is likelyto be effective in preventing ongoing abuse of the Court's processes by Mrs Siemer.Result[106] The application for an order striking out Mrs Siemer's statement of claim inCIV-2018-404-809 is granted.[107] The application for an order dismissing the entire proceeding brought byMrs Siemer in CIV-2018-404-809 is granted.[108] The application for an extended order is granted in the following terms:Jane Dinsdale Siemer is prohibited from commencing or continuing, withoutleave, any proceeding in any Court or Tribunal, concerning or relating toSiemer v Hickson CIV-2017-044-495 and CIV-2017-044-562, including(without limitation) proceedings relating to the conduct of any judicial officerof the Disputes Tribunal, for three years.[109] The respondents are entitled to costs on a 2B basis against Mrs Siemer.------------------------------------------Hinton J