VINCENT ROSS SIEMER [2021] NZSC 12

VINCENT ROSS SIEMER [2021] NZSC 12 [1 MARCH 2021]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 116/2020[2021] NZSC 12RE VINCENT ROSS SIEMERApplicantCourt: William Young, O'Regan and Ellen France JJCounsel: Applicant in personJudgment: 1 March 2021JUDGMENT OF THE COURTA The application to appoint an amicus curiae is declined.B The application for leave to appeal is dismissed.____________________________________________________________________REASONSThe application[1] The applicant seeks leave to appeal from a Court of Appeal decision strikingout what purported to be an appeal against a minute of 28 February 2020 of Palmer J.The Court concluded that the minute did not relevantly contain a "judgment, decreeor order" and was thus not amenable to appeal.1The background[2] On 4 March 2016, the Court of Appeal made a general order under s 88B ofthe Judicature Act 1908 restricting the applicant from commencing proceedings in the1 Re Siemer [2020] NZCA 393 (Miller, Brown and Gilbert JJ) [CA judgment].High Court without the leave of the High Court.2 Wishing to issue judicial reviewproceedings, the applicant applied for leave. This application was dealt with byPalmer J. In a judgment delivered on 25 November 2019, that Judge held that theorder against the applicant had expired in March 2019 by reason of the time limitswhich apply to orders made under the Senior Courts Act 2016 pursuant to the regimewhich replaced the vexatious litigant provisions of the Judicature Act 1908.3 TheJudge, however, indicated that he was "minded to make" an order under s 169(3) ofthe Senior Courts Act against the applicant restricting his ability to issue proceedings.4He gave reasons why he was so minded.5 He invited submissions from the applicantand the Attorney-General and, in the meantime, directed that if the anticipated judicialreview proceeding was filed, it would be stayed pending resolution of the s 169 issue.6[3] As it turned out, the Attorney-General did not file submissions in relation tos 169 and the applicant chose not to pursue the judicial review which was the subjectmatter of his original application. The upshot was that in a minute of 28 February2020, Palmer J, under the heading "Decision", recorded:I have concluded there is an insufficient basis on which I would be justified inmaking orders under s 166 of the Senior Courts Act 2016. I do not consider itwould be fair to Mr Siemer to put this process on hold for an indeterminateperiod. That is particularly given that Mr Siemer has said he intends to amendthe appeal proceeding so as to avoid the issue of whether he is a vexatiouslitigant.The reference to "amend the appeal proceeding" warrants brief explanation. There isa conflicting decision of the High Court as to whether the applicant's status as declaredvexatious litigant and consequential restrictions on issuing proceedings still subsist.In respect of this judgment, the applicant had sought leave to appeal to the Court ofAppeal. The applicant had also indicated a wish to appeal against the 25 November2019 judgment of Palmer J in respect of the invocation of the s 166 procedure. Incontext it appears that the reference to "amend the appeal proceeding" is a referenceto the anticipated appeal against the 25 November 2019 judgment.2 Siemer v Attorney-General [2016] NZCA 43.3 Siemer v New Zealand Law Society [2019] NZHC 3075.4 At [3] and [32].5 At [30]–[32].6 At [33].[4] As it happened, the only appeal filed by the applicant was in respect of theminute of 28 February 2020, albeit that amongst the relief sought by the applicant wasthe setting aside of the stay provided for contingently in the 25 November 2019judgment.[5] In the judgment now under challenge, the Court of Appeal concluded thatneither the judgment of 25 November 2019 nor the minute of 28 February 2020determined any issue in a way which was adverse to the applicant.7 It followed thatthere was no "judgment, decree, or order" of the High Court that was adverse to theapplicant and sufficient to found jurisdiction for an appeal to the Court of Appeal unders 56 of the Senior Courts Act.[6] The applicant's attempt to challenge the Court of Appeal judgment has alreadyresulted in one decision in this Court, the judgment of O'Regan J in Re Siemer, whichdismissed the applicant's challenges to the refusal of the Deputy Registrar to waivethe filing fee in respect this application.8Analysis[7] The only aspect of what happened in the High Court which could sensibly beseen as a determination adverse to the applicant was the stay of the then anticipatedjudicial review proceedings. As it turned out, the applicant decided not to pursue thoseproceedings and, in any event, that stay plainly lapsed on 28 February 2020. An appealin respect of a stay of a claim that was not to be pursued and had in any event lapsedis simply not a viable candidate for either an extension of time to appeal or for a grantof leave to appeal to the Court of Appeal under s 56(3) of the Senior Courts Act.[8] Apart from the reference to a stay, there was, in the judgment, a finding infavour of the applicant (that the Court of Appeal order against him had lapsed), astatement of what the Judge was "minded" to do (that is, make an order against theapplicant), the reasons which motivated the Judge to say that and an invitation to theAttorney-General and the applicant to make submissions. In the minute, there is a7 CA judgment, above n 1, at [26].8 Re Siemer [2020] NZSC 136.decision not to take the matter any further. None of this provides a jurisdictional basisfor an appeal. In none of this is there a determination adverse to the applicant.Decision[9] The applicant sought the appointment of an amicus curiae. On the basis of theconclusions we have reached, there is no occasion for such an appointment. Theapplication for leave to appeal is dismissed.