SIEMER v ATTORNEY-GENERAL [2022] NZCA 26

SIEMER v ATTORNEY-GENERAL [2022] NZCA 26 [25 February 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA628/2020[2022] NZCA 26BETWEEN VINCENT ROSS SIEMERAppellantAND ATTORNEY-GENERAL OFNEW ZEALANDRespondentHearing: 20 October 2021Court: Gilbert, Courtney and Goddard JJCounsel: Appellant in personA M Powell for RespondentJudgment: 25 February 2022 at 2 pmJUDGMENT OF THE COURTA The appeal is allowed.B The matter is remitted to the High Court for hearing before another judge.C We make no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] This is an appeal against a judgment of van Bohemen J striking outan application by Mr Siemer for judicial review of a decision of Downs J declining hisapplication for access to a court document.11 Siemer v Attorney-General [2020] NZHC 2581 [Strike-out judgment].BackgroundApplication for access to court document[2] On 7 October 2019, Mr Siemer applied under the Senior Courts (Access toCourt Documents) Rules 2017 (the rules) for access to a document filed inthe High Court by another litigant, Razdan Rafiq. The application was declined byDowns J for the brief reasons set out in his minute dated 24 October 2019.Application for judicial review[3] Mr Siemer applied for judicial review of Downs J's decision. Palmer J, whocase managed the judicial review proceeding, recorded in a minute dated14 February 2020 that the application "proceeds on the basis that administrativedecisions of the High Court, usually exercised by a Registrar, are susceptible tojudicial review". This jurisdictional question was one of the primary issues raised bythe application.[4] In accordance with a subsequent direction given by Palmer J, the parties fileda joint memorandum on 3 August 2020 proposing directions to enable the matter to beheard. These included a timetable for the exchange of written submissions and arequest that the matter be set down for a two-hour hearing. Palmer J made directionsaccordingly on 4 August 2020 and a two-hour fixture was subsequently allocated for1 October 2020.[5] The parties duly exchanged submissions in accordance with the agreedtimetable and attended court on the scheduled hearing date. However, when the matterwas called, van Bohemen J advised the parties that he had concluded he had nojurisdiction to review Downs J's decision and had therefore decided to strike outthe proceeding under r 15.1 of the High Court Rules 2016 without hearing fromthe parties. The Judge handed the parties a draft judgment explaining his reasons fortaking this course. Despite his protests at the time, Mr Siemer was not permitted to beheard.[6] Later that day, the Judge delivered his formal judgment, which contained twoamendments to the draft. The first was the addition of two paragraphs inthe introductory section and the second was a modification to the wording of a laterparagraph, most notably the insertion of the word "judicial" before the words"decisions of another High Court Judge". As amended, the introductory section readsas follows (the additional paragraphs are [4] and [5]):[1] Vincent Siemer applies to review a decision by Downs J denyingMr Siemer access to a document on the Court file in another proceeding.[2] As set out below, I have no jurisdiction to review the decision ofDowns J.[3] Accordingly, I strike out the application in accordance with r 15.1 ofthe High Court Rules 2016.[4] Because the hearing of Mr Siemer's application was set down fortoday, I considered it appropriate to advise Mr Siemer in person at the hearingrather than make my decision on the papers and vacate the hearing.However, because the jurisdictional point is plain, I did not consider itappropriate to hear Mr Siemer on the point.[5] At the hearing, I handed Mr Siemer a draft of this decision, whichI have since amended and finalised.[7] The second amendment, which we have italicised, appears in what became [16]of the final judgment:Jurisdiction to review decision of another High Court Judge[16] It is well established that a High Court Judge does not havejurisdiction to review the judicial decisions of another High Court Judge.[8] Mr Siemer applied to have the judgment recalled, but this application wasdeclined by van Bohemen J in a judgment delivered on 20 October 2020.2AppealBreach of natural justice[9] Mr Siemer appeals against the Strike-out judgment on the ground that, inpre-determining the matter and denying him a hearing, the Judge breached his right to2 Siemer v Attorney-General [2020] NZHC 2756.natural justice assured by s 27 of the New Zealand Bill of Rights Act 1990. Mr Powell,for the respondent, responsibly concedes this.[10] It is axiomatic that parties are entitled to a fair hearing before an impartialtribunal. The basic requirements of natural justice must be observed in all cases, eventhose that may appear to be hopeless. Justice must not only be done, it must be seento be done.3 As Kirby J said in Antoun v R:4No case is judged hopeless in our courts before a party has had a reasonableopportunity, by evidence and argument, to advance its case and contentions tothe independent judge.[11] Palmer J directed, in accordance with a joint memorandum filed by the parties,that the proceeding be set down for a two-hour hearing following the exchange ofwritten submissions to determine all issues, which would include whether Downs J'sdecision was susceptible to judicial review. This due process ought not to have beendeparted from without first consulting the parties. Van Bohemen J should not havedenied the parties the substantive hearing they were entitled to expect nor struck outthe proceeding of his own motion without affording the parties any opportunity to beheard on that unsignalled course. We also note that the Judge did not refer tothe parties' submissions in his judgment. Mr Siemer makes the fair point thatthe amendment to the draft judgment by the addition of the word "judicial" indicatesthat the Judge may not have fully appreciated (until then) the distinction Mr Siemerwas seeking to draw between decisions of a purely administrative character and otherjudicial decisions. Whether or not there is any merit in Mr Siemer's claim, his rightto natural justice was clearly breached in this process.Remedy[12] This fundamental breach of natural justice would normally require us to allowthe appeal and remit the matter to the High Court for a hearing before another judge.An exception might be where both parties prefer this Court to determine the matter.However, Mr Siemer confirmed at the hearing that he wishes to have the matter3 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2010] 1 NZLR 35 (SC) at[38] and [61].4 Antoun v R [2006] HCA 2, (2006) 224 ALR 51 at [48]; and Jones v National Coal Board [1957]2 QB 55 (CA), [1957] 2 All ER 155 at 161.remitted to the High Court for hearing before another judge. Mr Powell accepts thatthis is the appropriate course in the light of our conclusion on the first issue.Costs[13] As a self-represented litigant, Mr Siemer is not entitled to costs. He did notseek any award of costs or disbursements.Result[14] The appeal is allowed.[15] The matter is remitted to the High Court for hearing before another judge.[16] We make no order for costs.Solicitors:Crown Law Office, Wellington for Respondent