SIEMER v ATTORNEY-GENERAL [2022] NZCA 200

SIEMER v ATTORNEY-GENERAL [2022] NZCA 200 [20 May 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA41/2022[2022] NZCA 200BETWEEN VINCENT ROSS SIEMERApplicantAND ATTORNEY-GENERAL OFNEW ZEALANDRespondentCourt: Gilbert and Katz JJCounsel: Applicant in personS P Jerebine for RespondentJudgment:(On the papers)20 May 2022 at 2 pmJUDGMENT OF THE COURTThe application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Mr Siemer applies for leave to appeal against an interlocutory decision ofWoolford J granting permission under r 19.5 of the High Court Rules 2016 (the Rules)for a proceeding to be commenced by an originating application (the decision).1The proceeding is an application by the Attorney-General for a civil restraint orderagainst Mr Siemer under s 166 of the Senior Courts Act 2016.1 Siemer v Attorney-General HC Auckland CIV-2021-404-1955, 3 November 2021.[2] Proceedings in the High Court are normally commenced by filing a statementof claim. However, consistent with the overall objective of the Rules to secure the just,speedy and inexpensive determination of any proceeding or interlocutory application,2rr 19.2 to 19.4 provide that various proceedings must be commenced by originatingapplication. These include applications made pursuant to various specifiedenactments. Section 166 of the Senior Courts Act is not one of those listed.However, r 19.5 provides that the court may permit any proceeding not mentioned inrr 19.2 to 19.4 to be commenced by originating application if it is in the interests ofjustice to do so. The Judge was plainly satisfied of this in making the decision.[3] Mr Siemer applied to the High Court for leave to appeal against the decision.The Judge declined leave on 17 December 2021.3 He considered the application forleave was without merit, adding:[12] I remain of the view that an originating application is the preferablemeans of issuing proceedings. That is because the statutory test requiringdetermination is straightforward. This proceeding concerns the narrowquestion of whether at least two proceedings are totally without merit and anyresponse is limited to whether or not the proceedings in question were nottotally without merit. The pleadings are straightforward. Discovery is notrequired. Cross-examination is not required, and multiple parties are notinvolved.[4] Mr Siemer contends that the decision to permit the proceeding to becommenced by originating application is unprecedented and contrary towell-established procedures in all previous such litigation. He says the decision wasmade without giving any reasons and no legal authority was relied on. Accordingly, hesays, it is arguable the Judge did not turn his mind to the difference between a pleadingand an application. He complains that proceeding in this unprecedented form providesno notice as to the specific allegations and therefore defeats the interests of justice andthe fundamental importance of notice to any functioning court. He argues thatthe decision creates an unsafe precedent for future cases.[5] Mr Siemer submits that it is in the interests of justice that his appeal be heardprior to the substantive fixture. This is because he is entitled to due process, which he2 High Court Rules 2016, r 1.2.3 Attorney-General v Siemer HC Auckland CIV-2021-404-001955, Minute of Woolford J dated17 December 2021.contends he would otherwise be denied. In those circumstances, he argues that anytrial will be a nullity and any decision will inevitably be overturned on appealnecessitating a second, "proper" trial. This would be wasteful of the parties' andthe courts' resources.[6] Leave to appeal against an interlocutory decision should not be granted unlessthe proposed appeal raises some question of law or fact capable of bona fide andserious argument in a case involving some interest, public or private, of sufficientimportance to outweigh the costs and delay of the appeal and the lack of general orprecedential value.4[7] We are not persuaded that the high threshold to justify the grant of leave toappeal against this interlocutory decision has been reached.[8] First, we do not consider it is seriously arguable that an originating applicationis generally an unsuitable procedure where an order under s 166 of the Senior CourtsAct is sought, nor does there appear to be any reason why it is unsuitable in this case.Because the grounds for making such an order are limited and prescribed by statute,these can conveniently be set out in an originating application with appropriateparticularity. These types of application are readily distinguishable from the normalrun of cases where a statement of claim is necessary to set out the material elementsof each cause of action the plaintiff wishes to pursue.[9] Secondly, the High Court has broad powers to ensure that any originatingapplication is dealt with in a procedurally fair manner, including by insisting thatproper particulars are provided to ensure the respondent (and the Court) has fair noticeof the case he or she is required to meet. In short, we consider the issue Mr Siemerwishes to raise on appeal, namely that the originating application procedure "providesno notice as to the specific allegations" and therefore "defeats the interests of justice",is not capable of bona fide and serious argument.[10] Thirdly, it follows that we do not accept it is seriously arguable thatthe adoption of the originating application procedure will inevitably result in a denial4 Greendrake v District Court of New Zealand [2020] NZCA 122.of due process such that the appeal should be heard before the substantive proceeding.Any unfairness in the procedure ultimately followed can be addressed in the contextof an appeal from the substantive judgment.[11] We do not consider the costs and delay of the proposed appeal can be justified.We are satisfied that the interests of justice require us to decline the application forleave to appeal.Result[12] The application for leave to appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent