SIEMER v REGISTRAR OF THE SUPREME COURT [2019] NZHC 2345

SIEMER v REGISTRAR OF THE SUPREME COURT [2019] NZHC 2345 [17 September 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2019-485-541[2019] NZHC 2345UNDER the Judicial Review Procedure Act 2016 ands 27(2) of the New Zealand Bill of RightsAct 1990IN THE MATTER of a Judicial ReviewBETWEEN JANE SIEMERApplicantAND REGISTRAR OF THE SUPREME COURTRespondentJudgment: 17 September 2019JUDGMENT OF COOKE J[1] By notice of proceeding and statement of claim dated 23 April 2019 theapplicant, Mrs Jane Siemer seeks to bring judicial review proceedings in relation to adecision of the Registrar of the Supreme Court.[2] These proceedings have been referred to me by the Registrar under r 5.35A ofthe High Court Rules 2016. I am not sure why it has taken some time for theproceedings to be so referred. It seems to me that any such referral should take placemore promptly.Jurisdiction[3] Rule 5.35A provides:5.35A Registrar may refer plainly abusive proceeding to Judge beforeservice(1) This rule applies if a Registrar believes that, on the face of a proceedingtendered for filing, the proceeding is plainly an abuse of the process ofthe court.(2) The Registrar must accept the proceeding for filing if it meets theformal requirements for documents set out in rules 5.3 to 5.16.(3) However, the Registrar may,—(a) as soon as practicable after accepting the proceeding for filing,refer it to a Judge for consideration under rule 5.35B; and(b) until a Judge has considered the proceeding under that rule,decline to sign and release the notice of proceeding and attachedmemorandum for the plaintiff or the applicant (as appropriate) toserve the proceeding.[4] Rule 5.35B also provides:5.35B Judge's powers to make orders and give directions before service(1) This rule applies if a Judge to whom a Registrar refers a proceedingunder rule 5.35A is satisfied that the proceeding is plainly an abuse ofthe process of the court.(2) The Judge may, on his or her own initiative, make an order or givedirections to ensure that the proceeding is disposed of or, as the casemay be, proceeds in a way that complies with these rules, including(without limitation) an order under rule 15.1 that—(a) the proceeding be struck out:(b) the proceeding be stayed until further order:(c) documents for service be kept by the court and not be served untilthe stay is lifted:(d) no application to lift the stay be heard until the person who filedthe proceeding files further documents as specified in the order(for example, an amended statement of claim or particulars ofclaim).(3) Rule 7.43(3) does not apply. However, if a Judge makes an order on theJudge's own initiative without giving the person who filed theproceeding an opportunity to be heard, the order must contain astatement of that person's right to appeal against the decision.(4) A copy of a Judge's decision to strike out a proceeding must, ifpracticable, also be served on the person named as a party or, if morethan 1 person is named, those persons named as parties to theproceeding.(5) See rule 2.1(3)(b) concerning the exclusion of the jurisdiction andpowers of a Judge under this rule from the jurisdiction and powers ofan Associate Judge.[5] As a consequence of s 8(2) of the Judicial Review Procedure Act 2016 both ofthese rules apply to a judicial review proceeding. The right to bring judicial review isa fundamental right, recognised by s 27(2) of the New Zealand Bill of Rights Act 1990.But the right to bring a judicial review proceeding is to do so "in accordance withlaw".[6] The power to strike out a proposed proceeding as an abuse under these rules isto be exercised sparingly. The following questions are to be asked when these rulesare applied:1(a) whether it would be manifestly unfair to the respondents that they berequired to respond; and(b) whether right thinking people would regard this Court as exercisingvery poor control of its processes for it to follow the applicant'sdocument to be treated as a proper document.[7] It also seems to me that the normal concepts taken into account by the Courtwhen assessing whether a proceeding is an abuse of process inform the answers to thequestions referred to above.Background here[8] Mr and Mrs Siemer are well-known to the Courts. By a judgment dated19 December 2018 Hinton J has made an order under ss 166(1) and (2)(b) of the SeniorCourts Act 2016 preventing Mrs Siemer bringing or continuing proceedings in thefollowing terms:2Jane 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, including1 Mathieson v Fildes [2017] NZHC 2258 at [4]–[7]; and Mathieson v Slevin [2018] NZHC 1032 at[6].2 Siemer v Attorney-General [2018] NZHC 3406.(without limitation) proceedings relating to the conduct of any judicial officerof the Disputes Tribunal, for three years.[9] A vexatious litigant order under the Judicature Act 1908 has been made againstMr Siemer requiring him to obtain leave in the High Court or inferior court beforecommencing any proceedings.3[10] The current proceedings involve a decision of the Registrar of the SupremeCourt to refuse to waive the filing fee in respect of an application for leave to appealto that Court. The application for leave was in relation to a decision of Miller J todecline to review the decision of the Deputy Registrar of the Court of Appeal not towaive the payment of a filing fee.4 The underlying intended appeal is betweenMrs Siemer, the District Court at North Shore, and the Disputes Tribunal at NorthShore. It relates to a decision of Fitzgerald J that Mrs Siemer breached an order of theHigh Court that she not further disclose a transcript of a hearing in the DisputesTribunal.5 It would appear that the underlying litigation may be related to that whichis subject of the order made by Hinton J.[11] The Registrar of the Supreme Court declined to waive the filing fee in thatCourt. In accordance with s 160(4)(a) of the Senior Courts Act 2016 Mrs Siemer thensought that the decision of the Registrar be reviewed. The review was conducted byEllen France J who by judgment dated 28 February 2019 upheld the Registrar'sdecision. She held:6[8] Having considered the submissions and other material filed in theCourt by the applicant, I agree with the Registrar's assessment. There is nochallenge to the principles applied by Miller J in dismissing the applicationfor review in the Court of Appeal. No general question arises. Whether theunderlying appeal to the Court of Appeal is properly characterised as criminalrather than civil may give rise to a matter of public interest. However, in thepresent circumstances, where the matter is minor and there was no penalty, nomatter of genuine public interest is raised. Finally, nothing turns on the choiceof language adopted by the Registrar when, on the face of the document, theissues raised have been addressed.3 At [17].4 Siemer v District Court North Shore [2018] NZCA 558.5 At [2].6 Siemer v District Court at North Shore [2019] NZSC 19.[12] Mrs Siemer then sought that the decision of the single Judge in Chambers bereferred to the Supreme Court itself under s 82(4) of the Senior Courts Act 2016. TheRegistrar of the Supreme Court did not accept that application for filing. He said inan email dated 9 April 2019:Mrs Siemer, s82 Senior Courts Act 2016 does not provide any statutory basisto review the 4 April 2019 Minute of France J. Please refer to Guy v The Bankof New Zealand [2013] NZSC 127 and Greer v Smith [2015] NZSC 196. Assuch the application for review will not be processed. Also note that nodecision is being made under the rules in advising you of this position and assuch there is no review that can be made of this communication to you in termsof s82.[13] These proceedings were then filed on 23 April 2019. The proceedingschallenged the decision of the Registrar contending that involves a misinterpretationof s 82, that the respondent's actions are different than what Parliament intended, thatit involved a breach of natural justice, and that it was ultra vires. Mrs Siemer seeksthe following orders:i a judgment granting the judicial review application;ii declaratory relief (to be particularized); and/oriii such other relief as deemed fit by this Honourable Court.Analysis[14] It seems to me that this is an appropriate case for the Court to strike out theproposed proceedings as an abuse of process under r 5.35B. This is so for a series ofinter-related reasons.[15] First, in each of the High Court, Court of Appeal and Supreme Court there areprescribed rules which regulate the power to waive filing fees. In each case the rulesare characterised by a decision being made by a Registrar, with a right to have thatdecision reviewed by a Judge of the Court. Those rules provide a self-containedsystem for dealing with the waiver of filing fees. There is no room within the schemeof the rules for decisions made by Registrars, or by Judges to be subsequentlychallenged by way of judicial review. There is no right to judicially review a decisionmade by a High Court Judge, and neither would there be a right to challenge a decisionof a Registrar that can be reviewed under statutory provisions by a High Court Judge.Equally there is no right of judicial review of a decision of a Court of Appeal Judge,or a Supreme Court Judge. Whilst the right to bring judicial review proceedings is setout in the Judicial Review Procedure Act 2016 and the Bill of Rights Act 1990, thesejurisdictional limits on the right to challenge such decisions by way of judicial revieware well established.7 This kind of limitation is reflected in s 27(2) of the New ZealandBill of Rights Act 1990 which only gives a right to bring judicial review proceedings"in accordance with law".[16] Secondly, the proposed judicial review proceedings contest the decision of theRegistrar of the Supreme Court is unlawful, or ultra vires because earlier decisions ofthe Supreme Court itself are wrong. They include the decisions of the Court in Greerv Smith8 and Guy v Bank of New Zealand.9 Mrs Siemer says that the decisionsmisinterpret what is now s 82 of the Senior Courts Act 2016. It is also alleged that thedecisions in those cases were reached in breach of natural justice because the partiesto that litigation were not heard in relation to those arguments. But the decisions inGuy v Bank of New Zealand and Greer v Smith are decisions of the Supreme Courtwhich are binding on this Court. For that reason, the current proceedings have noprospect of success. It also seems to me that the decisions of the Supreme Court areobviously correct. In Guy v Bank of New Zealand the Court held:[3] Mr Guy has now applied for other Judges of the Supreme Court toreview Arnold J's decision under s 28(3) of the Supreme Court Act 2003. Thatprovision empowers Judges of the Court, who have jurisdiction to hear anddetermine a proceeding to confirm, modify or revoke a decision made by asingle Judge under s 28(2).[4] Arnold J's decision was not, however, made under that provision. Itwas made under s 40, which is a specific provision in the Act dealing withreview of the Registrar's decisions concerning fees. Section 40 gives a personaggrieved by a decision of the Registrar refusing to waive a filing fee a rightto have the decision reviewed by a Judge of the Court. There is no further rightof review against the Judge's decision.[17] That reasoning applies in just the same way to the re-enacted provisions in theSenior Courts Act 2016. The decision of the Judge here was made under s 160(4)(a),7 See Reckie v Legal Services Agency [2010] NZAR 617 (HC) at [31]; Nichols v Registrar of theCourt of Appeal [1998] 2 NZLR 385 (CA).8 Greer v Smith [2015] NZSC 196; (2015) 22 PRNZ 785.9 Guy v Bank of New Zealand [2013] NZSC 127.not s 82. So the Registrar was right to say that Mrs Siemer could not ask the SupremeCourt itself to consider the decision of Ellen France J under s 82(4).[18] Finally, the proposed judicial review challenge is characterised by circularity.The proposed proceeding is a judicial review challenge to the refusal of the Registrarof the Supreme Court to refer a decision of a Registrar and a Judge not to waive afiling fee to the Supreme Court itself. The filing fee is in relation to an application toleave to appeal a decision by the Registrar and a Judge of the Court of Appeal whichare also decisions not to waive the payment of a filing fee. Mrs Siemer now contendsthat the Registrar was wrong not to refer the matter to the Supreme Court to argueagain an issue that does not relate to a substantive appeal, but a peripheral proceduralrequirement.[19] For the above reasons the proceedings seem to me to be abusive, and I amsatisfied the requirements for striking out a proposed proceeding under rule 5.35Bidentified above are met. Accordingly they are struck out under r 5.35B.[20] As is required by the rule I record that Mrs Siemer has a right of appeal againstthis decision.Cooke J