SIEMER v REGISTRAR OF THE SUPREME COURT [2022] NZHC 1724

SIEMER v REGISTRAR OF THE SUPREME COURT [2022] NZHC 1724 [19 July 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2021-485-177[2022] NZHC 1724UNDER 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 SIEMERDefendantHearing: 13 June 2022Appearances: Mr Siemer in personM J McKillop and R M McMenamin for Crown partiesMinute: 19 July 2022JUDGMENT OF COOKE J(Leave to appeal and stay)[1] By application dated 2 June 2022 the Attorney-General seeks leave to appealan interlocutory decision in these proceedings. By application dated 28 June 2022 theAttorney-General also applies for the proceedings to be stayed pending the outcomeof the intended appeal. The Attorney-General seeks to appeal a decision by Duffy Jconsolidating proceedings brought by the Attorney-General seeking a civil restraintorder against Mr Siemer under s 166 of the Senior Courts Act 2016 (CIV-2021-404-1955) with proceedings in this Registry in which the Registrar of the Supreme Courthad made a similar interlocutory application for a s 166 order (CIV-2021-485-177).1Duffy J also transferred the Auckland proceedings to the Wellington Registry as partof the consolidation. Finally, the Court ruled that a number of the earlier decisions ofcourts and tribunals in proceedings brought by, or involving Mr Siemer wereinadmissible under the Evidence Act 2006.[2] The Attorney-General's application for leave to appeal was called before meon 10 June, and after hearing from counsel for the Attorney-General and Mr Siemer Idirected the Attorney-General to file a formal application to formalise his oralapplication for a stay. I also gave both parties an opportunity to file further writtensubmissions following which I would issue a decision on the applications.2Preliminary procedural points[3] Mr Siemer has raised some preliminary procedural points. He has not filedfurther written submissions but he has, by application dated 11 July, sought that Irecuse myself from determining the applications. As I understand it this applicationis advanced on the basis that it is procedurally irregular for me to determine theapplications for leave to appeal and for a stay, and secondly because I madeobservations about the applications that have predetermined the outcome in my minutefollowing the hearing.[4] I do not accept either argument. It is customary for the Judge who has heardand determined a matter to consider any application for leave to appeal the judgmentto the Court of Appeal. But in this case Duffy J transferred the proceedings to theWellington Registry and consolidated it with an existing Wellington proceeding. Forthis reason the applications have been called before a Wellington Judge. Whilst itmight be possible to transfer the applications back to Duffy J for determination, themore appropriate course is for the matter to be determined in the normal way. There1 Attorney-General v Siemer [2022] NZHC 917.2 Mr Siemer also filed an application that I recall my minute of 14 June which I declined by minuteof 30 June 2022.is no procedural rule requiring the hearing Judge to be the Judge that determines anapplication for leave, and it can be more expeditious for the Judge before whom theapplication is called to determine it. That is particularly so here given that theapplication for leave to appeal is a straightforward one for the reasons outlined below.[5] Neither am I disqualified from determining the applications because I indicatedat the hearing, and then in the minute following the hearing, preliminary views.Providing those views during the course of argument, or in a minute for the purposesof any further written submissions, provides the participants with the ability to addressthe points raised. That is simply part of the determination of applications, not thepredetermination of them.[6] Neither do I accept that there are any other legitimate procedural criticisms ofthe way the applications have been dealt with. Indeed, if anything, my direction thatthe Attorney-General formally file an application for a stay rather than simplyadvancing that application orally was to ensure matters were procedurally regularised.Leave to appeal[7] Pursuant to s 56 of the Senior Courts Act 2016 leave to appeal is required toappeal against any interlocutory order of the High Court. The application is opposedby Mr Siemer. The requirement for leave operates as a "filtering mechanism to ensurethat unmeritorious appeals of interlocutory orders, or appeals of interlocutory ordersof no great significance to either the parties or more generally do not unnecessarilydelay the proceedings in which the orders were made".3 The applicant must show anarguable error that warrants appeal, with the ultimate question being whether theinterests of justice are served by the grant of leave.[8] For two related reasons I accept that leave to appeal should be granted in thepresent case.[9] First, the decision of the High Court that previous decisions by the courts andtribunals are inadmissible in what are, in substance, vexatious litigant applications will3 Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].have considerable practical significance not only in this proceeding, but moregenerally in relation to applications under s 166. It will be very much more difficultto obtain such orders if the applicant is not able to rely on previous decisions toestablish the person subject to the application has been conducting proceedings whichare totally without merit. It has been routine for Courts dealing with these applicationsto rely on the decisions in the relevant litigation. For example when the Court ofAppeal confirmed the previous orders against Mr Siemer under s 88B of the JudicatureAct 1908, it found it unnecessary to traverse the detail of Mr Siemer's proceedings asit was " sufficient to note the High Court accepted 15 of the 19 proceedings werevexatious because they had been instituted for the collateral purpose of re-litigationissues that had already been finally resolved".4 And as Duffy J herself said in thedecision the Attorney-General seeks to appeal, " it is hard to see how the Attorney-General's application can proceed without reliance on the reasons for judgment toprove the legal proceedings brought by Mr Siemer, what their basis was, the merits ofthose proceedings and their respective outcomes".5[10] The second point is that I accept that the Attorney-General has a stronglyarguable case on appeal. Duffy J first relied on s 50 of the Evidence Act as a reasonwhy the decisions were inadmissible. But this section only prevents previousdecisions being admissible "to prove the existence of a fact that was in issue in theproceeding in which the judgment was given".6 Here the previous decisions wouldnot be provided as evidence of the facts found in those decisions, but as evidence ofthe conclusions reached by the relevant courts or tribunals. The related finding thatthe decisions would be inadmissible as opinion and documentary hearsay evidencemay also not be consistent with the view that formal decisions of courts or tribunalsare matter of public record that can be received by the Court, including through otherprovisions in the Evidence Act such as s 128(2).7 The reasoning of the court or tribunalis more than opinion or documentary hearsay. It is at least arguable that the decisionsare formal conclusions of judicial authorities, and that the existence of suchconclusions are able to be taken into account as a matter of public record.4 Siemer v Attorney-General [2016] NZCA 43, [2016] NZAR 411 at [14].5 Attorney-General v Siemer, above n 1, at [67].6 Evidence Act 2006, s 50(1).7 See, for example, National Standards Committee (No 1) v Deliu [2012] NZHC 3378 at [28].[11] In any event at this stage all the applicant needs to establish is that there is anarguable error of law and/or that the proposed appeal is of general public importancethat warrants further delay that is likely to arise by the grant of leave. That is satisfiedin the present case. The decision plainly now warrants consideration by the Court ofAppeal as the decision will make applications under s 166, including those in thepresent proceedings, very difficult to advance.[12] Accordingly I grant leave to appeal in the terms sought.Stay pending appeal[13] The Attorney-General also seeks a stay of the High Court proceedings pendingthe proposed appeal. At the hearing I directed that a formal application be filed in thisrespect. Although a formal notice of opposition has not been filed Mr Siemer opposedthe stay at the hearing and I proceed on the basis that the stay is opposed.[14] The formal application filed by the Attorney-General appears to rely on r 20.10of the High Court Rules 2016. That is not the applicable rule. Part 20 deals withappeals to the High Court to the High Court not appeals from the High Court. Therelevant rule is r 12 of the Court of Appeal (Civil) Rules 2005. This allows the Courtappealed from to order a stay of the proceedings in which the relevant decision wasgiven. The general approach requires the Court to balance the competing rights of theparty who has obtained a judgment against the need to preserve the appellant's positionin the event of the appeal succeeding.8 That general approach needs to be applied inlight of the fact that the appeal here is against an interlocutory decision only.[15] I accept the Attorney-General's first point that the decision in relation toadmissibility has serious, and potentially fatal implications for the substantiveapplications in this proceeding. If the Crown bodies are not able to rely on the previousdecisions of courts and tribunals it may become impossible for them to succeed with8 Duncan v Osborne Buildings Ltd (1992) 6 PRNZ 85 (CA) at [87]; Keung v GRB Investment Ltd[2010] NZCA 396 at [11]; Bilgola Enterprises Ltd v Dymocks Franchise Systems (NSW) Pty Ltd(1999) 13 PRNZ 48 (HC) at [9]; Yan v Mainzeal Property Construction Ltd (In rec and liq) [2014]NZCA 86, (2014) 22 PRNZ 296 at [25].the applications. For that reason it is necessary that the appeal be determined beforeany further steps are taken in relation to the s 166 applications.[16] Secondly, as the Attorney-General says, in the meantime Mr Siemer remainsfree to conduct proceedings in the normal way. So the delay in the determination ofthe s 166 applications is not prejudicial to him.[17] The only matter of concern is that the s 166 application in the Wellingtonproceeding was an interlocutory application only, and there is an underlying judicialreview claim that would be stayed. Normally it is appropriate to ensure that judicialreview proceedings are determined promptly. But here it has been determined thatthat judicial review proceeding be consolidated with the Attorney-General's s 166application. Moreover the underlying judicial review proceeding is not one thatappears to have urgency about it. It is a judicial review challenge to a decision of theRegistrar of the Supreme Court not to release a document from the Supreme Courtfile. I have previously noted that this challenge appears to be more one of principlethan practical impact.9[18] I also note that Mr Siemer appears to be advancing the same claim, or a verysimilar claim, in related proceedings. The Court of Appeal has recently overturned adecision of the High Court under r 5.35B of the High Court Rules striking out claimsagainst the Registrar of the Supreme Court, including the claim in relation to accessto a document on the Court file. The Court of Appeal held that any strike out of thatclaim was more appropriately dealt with under r 15.1.10 So Mr Siemer is likely ableto pursue these issues in other proceedings.[19] For these reasons a stay is appropriate. It is accordingly granted pendingdetermination of the appeal in the terms sought.9 Siemer v Registrar of the Supreme Court HC Wellington CIV-2021-485-177, Minute 1 June 2021at [4].10 Siemer v Complete Construction Ltd [2022] NZCA 262 at [40]–[50].Outcome[20] I accordingly grant leave to appeal and a stay in the terms of the applicationssought.[21] If there is any issue in relation to costs I will receive memoranda.Cooke JSolicitors:Crown Law, Wellington for the Registrar of the Supreme Court and Attorney-General