SIEMER v ATTORNEY-GENERAL OF NEW ZEALAND [2022] NZHC 2643

SIEMER v ATTORNEY-GENERAL OF NEW ZEALAND [2022] NZHC 2643 [14 October 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-2797[2022] NZHC 2643UNDER s 11 of the Senior Courts (Access to CourtDocuments) Rules 2017, the Judicial ReviewProcedure Act 2016 and s 27(2) of the NewZealand Bill of Rights Act 1990, and therights of review in the circumstances of thesepleadings as defined by Taito v R [2002]UKPC 1.IN THE MATTER of judicial review and declaratory reliefagainst an administrative refusal to complywith a statutory request for a public courtdocumentBETWEEN VINCENT ROSS SIEMERApplicantAND ATTORNEY-GENERAL OF NEWZEALANDRespondentHearing: 15 June 2022 (with additional material on 13 October 2022)Appearances: Applicant in personA M Powell and R M McMenamin for the RespondentJudgment: 14 October 2022JUDGMENT OF GAULT JThis judgment was delivered by me on 14 October 2022 at 4:00 pmpursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy Registrar[1] Mr Siemer applies for judicial review of a decision of a Judge of this Courtrefusing him access to documents on a Court file in another matter.[2] One of the primary issues raised by the application is whether this Court'sjudicial review jurisdiction extends to decisions of Judges of this Court.Background[3] On 7 October 2019, Mr Siemer applied to access documents on the Court filefor an application by Mr Rafiq for leave to commence a proceeding. Mr Rafiq'sapplication for leave had been declined by Venning J in a judgment dated 29 May2019.1[4] Mr Siemer's application was determined by Downs J in a Minute dated24 October 2019.2 After recording that there were only three documents on the Courtfile, the Judge granted Mr Siemer access to the judgment of Venning J but declinedaccess to the other two documents – Mr Rafiq's proposed proceeding and hisapplication for leave. The Judge's reasons for declining access to those two documentswere:Venning J concluded that the proposed proceeding was frivolous andvexatious. Dissemination of related paperwork is contrary to public interest.As Venning J observed, the "proposed statement of claim is abusive and anonsense".[5] Mr Siemer sought leave from Downs J to appeal his decision to the Court ofAppeal. On 18 December 2019, Downs J declined leave to appeal.3[6] On the same day, Mr Siemer commenced this judicial review proceeding.41 Rafiq v Whata J [2019] NZHC 1193. Leave was required as Mr Rafiq was subject to an orderunder s 88B of the Judicature Act 1908.2 Re Rafiq, CIV-2019-404-000934.3 Siemer v Auckland High Court [2019] NZHC 3393, [2019] 25 PRNZ 561.4 The application for judicial review was heard by me following the Court of Appeal's decision inSiemer v Attorney-General [2022] NZCA 26.Discussion[7] Applications for access to documents on a Court file are governed by theSenior Courts (Access to Court Documents) Rules 2017 (the Rules). Mr Siemer madethe request using the standard form provided. As indicated, he was declined access totwo documents, but in his application for judicial review he seeks access to only onedocument, Mr Rafiq's proposed proceeding (proposed statement of claim).[8] Mr Siemer's primary submission was that the Court determining his requestwas acting in an administrative capacity, not making a judicial decision, and istherefore susceptible to judicial review. He also submitted that the decision wasunlawful for interrelated reasons:(a) the public interest in the document, given the direction in Venning J'sjudgment that the proposed statement of claim be referred to the policeand Venning J's memorandum to court managers dated 7 June 2019notifying them of the effect of his judgment in relation to ordersrestricting commencement or continuation of civil proceedings; and(b) the principles of open justice, the freedom to seek, receive and impartinformation, and the rule of law.[9] Mr Siemer also raised concerns about the regime for access to courtdocuments. He sought a broader review so that Judges are not burdened with requestsand recourse is not confined to an appeal where security for costs is required.Mr Siemer seeks judicial review in the absence of an informal review or appealprocess such as one involving timely decisions by a Registrar with review by a Judge.[10] Mr Rafiq's proposed statement of claim was not included in the Agreed Recordof Decision provided to me for the hearing. At the hearing, the parties agreed thatI did not need to see it in order to address the primary issues of jurisdiction andunlawfulness, and that if I decided to consider the access request afresh I could do sowithout receiving further submissions – that is, I could decide the application afreshon the basis of the original request (necessarily looking at the document).[11] I deal first with the jurisdiction issue.[12] Mr Siemer submitted that administrative functions carried out by a Judge aresusceptible to judicial review. He submitted that Downs J was acting in anadministrative capacity when declining access to the proposed statement of claim, atleast in part because the judicial function is limited to the quelling of justiciablecontroversies and Mr Siemer was not "before the Court" when Downs J declined hisapplication.[13] It is convenient to address the nature of the decision declining access beforereferring to the jurisdiction principles. I do not accept that Downs J's decision was inan administrative capacity in the sense submitted. The Rules regulate access to courtdocuments (albeit not affecting this Court's inherent powers). The Rules providegeneral rights of the public to access certain documents – but not the proposedstatement of claim – under r 8,5 and the rights of parties to access documents underr 9. Otherwise, r 11(2) provides that persons may ask for access to documents. Partiesto the relevant proceeding are generally to be notified.6 Rule 11(7) provides:A Judge may—(a) grant a request for access under this rule in whole or in part—(i) without conditions; or(ii) subject to any conditions that the Judge thinks appropriate; or(b) refuse the request; or(c) refer the request to a Registrar for determination by that Registrar.[14] Judge means a Judge of the court, in this case the High Court.7[15] Rule 12 prescribes the matters a Judge must consider when determining anapplication for access:5 Subject to specific qualifications under rr 6 and 7.6 Rules 11(3) and (4).7 The Court of Appeal has recently confirmed that in this context Judge does not extend to anAssociate Judge: Boult v Crux Publishing Ltd [2022] NZCA 473.In determining a request for access under rule 11, the Judge must consider thenature of, and the reasons given for, the request and take into account each ofthe following matters that is relevant to the request or any objection to therequest:(a) the orderly and fair administration of justice:(b) the right of a defendant in a criminal proceeding to a fair trial:(c) the right to bring and defend civil proceedings without the disclosureof any more information about the private lives of individuals, ormatters that are commercially sensitive, than is necessary to satisfythe principle of open justice:(d) the protection of other confidentiality and privacy interests (includingthose of children and other vulnerable members of the community)and any privilege held by, or available to, any person:(e) the principle of open justice (including the encouragement of fair andaccurate reporting of, and comment on, court hearings and decisions):(f) the freedom to seek, receive, and impart information:(g) whether a document to which the request relates is subject to anyrestriction under rule 7:(h) any other matter that the Judge thinks appropriate.[16] Some of these prescribed considerations reflect rights confirmed in theNew Zealand Bill of Rights Act 1990 (NZBORA) such as the right in s 14 to freedomof expression, including the freedom to seek, receive, and impart information andopinions of any kind in any form.[17] Rule 13 then sets out the approach the Judge must take when balancing the r 12factors, depending on whether the request is before, during or after the substantivehearing.[18] Thus, the Rules specifically provide for requests to be determined by a Judgeaccording to prescribed criteria.8 Such determinations by Judges are often made onthe papers by way of Minute, but the applicant is "before the Court" and such adetermination by a Judge does not affect its nature. Nor does it matter that applicants8 If a Judge refers a request to a Registrar for determination by that Registrar, the same prescribedrules apply to the Registrar: r 16. Reference to a Registrar did not happen in this case.are not usually susceptible to costs.9 Determinations by a Judge under r 11(7) are notadministrative in the sense Mr Siemer submitted. They are orders of the Court.Indeed, when Mr Siemer sought leave to appeal Downs J's decision, the Judgeconsidered that Mr Siemer would not have required leave to appeal under s 56 of theSenior Courts Act 2016.10[19] In any event, this Court does not assert jurisdiction to hear judicial reviewproceedings in relation to decisions made by its own Judges and Associate Judges.That is clear from the following appellate decisions. In Auckland District Court vAttorney-General, the Court of Appeal said:11The supervisory jurisdiction of the High Court has been secured since the 17thcentury. It is based on the fundamental premise that statutory (and someprerogative powers) can be validly exercised only within their true limits. It isthe task of the High Court to determine those limits and it does so by theprocess of judicial review. But the High Court cannot review its owndecisions; it must determine its own jurisdiction and, if it is responsible forany irregularity, the defect must be corrected by the Court itself or on appeal[20] In Bulmer v Attorney-General, the Court of Appeal said:12Nor is it necessary to consider the Crown's further submission to the effectthat an order for prohibition cannot be made against a High Court Judge andonly lies against inferior courts, tribunals and public bodies. If authority wereneeded for that proposition, however, it is not necessary to look beyondRe Racal Communications Ltd [1981] AC 374, per Lord Diplock at 384, perLord Salmon at 386, and per Lord Scarman at 392.[21] Section 27(2) of NZBORA does not assist Mr Siemer. That subsectionprovides: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 review ofthat determination.9 I note that a Judge may require the person asking for access to file an interlocutory or originatingapplication: r 14.10 Siemer v Auckland High Court [2019] NZHC 3393 at [4]. Downs J declined leave for the separatereason that Mr Siemer was, at the time, subject to a prohibition on the commencement orcontinuation of civil proceedings.11 Auckland District Court v Attorney-General [1993] 2 NZLR 129 (CA) at 133.12 Bulmer v Attorney-General (1998) 12 PRNZ 316 (CA) at 318. See also Hawkins v Attorney-General (1999) 14 PRNZ 5 (HC) at [13] and Lister v (Deputy) Registrar High Court ofNew Zealand [2015] NZHC 1246 at [3].[22] However, as Tipping J said in Nicholls v Registrar of the Court of Appeal, s 27cannot have been intended, by a side wind, to undermine the fundamental premise ofjudicial review: that it lies to tribunals and authorities and Courts lower in status thanthe High Court.13 Although the Privy Council referred to s 27(1) in R v Taito,14 leadingRanderson J in Young v Police to acknowledge that "tribunal" for the purpose ofs 27(1) includes superior Courts,15 he agreed with Tipping J in Nicholls that s 27(2) isnot intended to enable judicial review of decisions of the superior Courts.16[23] I also do not consider that the exceptional "nullity" cases involving a breach ofnatural justice indicate an enlargement of the Court's approach to judicial review ofdecisions of the superior Courts. Brogden v Arnold is such an exceptional case.17In that case, on an application for leave to appeal to the Court of Appeal after theHigh Court had dismissed an appeal against a stay of private prosecutions in theDistrict Court, Heath J considered he had jurisdiction to set aside the High Court ordersbecause there had been a fundamental failure to hear parties such that the orders werecharacterised as "nullities".18[24] Subject to this very narrow "nullity" exception, I accept Mr Powell'ssubmission for the Attorney-General that the only way decisions of Judges andAssociate Judges of this Court can be challenged is by exercising a right of appeal orby seeking a recall of the decision by the Judge who made it, where applicable.19[25] For these reasons, I conclude that this Court has no jurisdiction to hear judicialreview proceedings in relation to the Court's decision to decline Mr Siemer access toMr Rafiq's proposed statement of claim.13 Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385 (CA) at 435. See also Young vPolice [2007] 2 NZLR 382 (HC) at [30]-[38].14 R v Taito [2003] 3 NZLR 577 (PC) at 588. The case involved criminal appeals, not judicial review.15 Young v Police [2007] 2 NZLR 382 (HC) at [31].16 At [35].17 Brogden v Arnold [2003] NZAR 80. Also in the criminal context, see R v Nakhla (No 2) [1974]1 NZLR 453 (CA) at 455-456, and Butterfield v R [1997] 3 NZLR 760 (HC).18 At [12]. See also Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2013]NZHC 2361, which concerned an alleged breach of natural justice on the grounds of presumptivebias. Appeals had been exhausted and the High Court refused to allow an exception to the finalityprinciple – that once a court has delivered a final judgment it has no authority to correct, alter orsupplement that judgment.19 Recall is only available within the three categories in Horowhenua County v Nash (No 2) [1968]NZLR 632 (SC) at 633, applied by in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd[2009] NZSC 122, [2010] 1 NZLR 76 at [2] and Uhrle v R [2020] NZSC 62 at [22] and [29].[26] In the circumstances, it is unnecessary to address whether the decision wasunlawful, and I consider it would be inappropriate to do so. A further reason for notdoing so has arisen since the hearing and only recently come to my attention. TheCourt of Appeal has delivered judgment on an appeal against Downs J's decision(referred to at [5] above) refusing leave to appeal the earlier declinature of the requestfor access to court documents.20 The Court of Appeal has set aside that decision onthe basis that the s 88B order against Mr Siemer expired on 4 March 2019 and so hedid not require leave to appeal the decision refusing him access to the Rafiqdocuments. In doing so, the Court indicated that whether the earlier decision(declining the request) was supportable is a question for an appeal against the earlierdecision.21 Even if there were jurisdiction to judicially review a decision of this Court,the prospect of an appeal against the earlier decision would be a further reason for thisCourt not to address the lawfulness of the earlier decision by way of judicial review.Result[27] The application for judicial review is dismissed.[28] If costs cannot be agreed, I will receive memoranda not exceeding three pageswithin 20 working days and determine costs on the papers.________________________________Gault JParties / Solicitors / Counsel:The ApplicantMr A M Powell and Ms R M McMenamin, Crown Law, Wellington20 Siemer v Attorney-General [2022] NZCA 262.21 At [37]-[39]. I issued a Minute on 12 October 2022 seeking clarification as to whether any suchappeal was pending and received responses on 13 October 2022.