	Home \| Databases \| WorldLII \| Search \| Feedback Court of Appeal of New Zealand

Home | Databases | WorldLII | Search | Feedback

Court of Appeal of New Zealand

You are here: NZLII >> Databases >> Court of Appeal of New Zealand >> 2014 >> [2014] NZCA 358

Siemer v Judicial Conduct Commissioner [2014] NZCA 358 (30 July 2014)

Last Updated: 6 August 2014


IN THE COURT OF APPEAL OF NEW ZEALAND
CA 173/2014 [2014] NZCA 358
BETWEEN	VINCENT ROSS SIEMER Appellant
AND	JUDICIAL CONDUCT COMMISSIONER First Respondent
	RODNEY HANSEN Second Respondent
	DAVID HARVEY Third Respondent

Counsel:	Appellant in person D J Goddard QC, L Theron and A J Wicks for First Respondent A M Powell for Second and Third Respondents
Judgment: (On the papers)	30 July 2014 at 10.00 am

JUDGMENT OF WHITE J

The appellant’s application under s 61A(1) of the Judicature Act 1908 for an order that security for costs be dispensed with is declined.
The appellant’s application under s 61A(3) of the Judicature Act and r 7(2) of the Court of Appeal (Civil) Rules 2005 for review of the Deputy Registrar’s decision refusing to dispense with security for costs is dismissed.

The time for the appellant to pay security for costs is extended to 15 August 2014.

No date for the hearing of the appeal is to be allocated unless the security for costs of $5,880 is paid on or before 15 August 2014.

____________________________________________________________________

REASONS

[1] The appellant, Mr Siemer, has appealed against a High Court judgment of Kós J ordering him to pay security for costs of $10,000 each in two proceedings in that Court challenging decisions of the first respondent, the Judicial Conduct Commissioner (the JCC).^[1]
[2] The first High Court challenge relates to a decision of the JCC dismissing Mr Siemer’s complaint against the second respondent, the Hon Justice Hansen (as he was at the time), who decided not to treat Mr Siemer as an accredited news media representative (with the result that he was not entitled to remain in the courtroom during a procedural argument in a criminal trial). Kós J considered that the challenge was prima facie unmeritorious because the JCC did not have jurisdiction to entertain a complaint about an “instruction”, “direction” or “other decision” made by a Judge.^[2]
[3] The second High Court challenge relates to a decision of the JCC to take no further action in relation to a complaint that the third respondent, Judge Harvey, was personally disrespectful and threatened Mr Siemer with contempt in the face of the Court with no justification. Kós J considered that this challenge was also prima facie unmeritorious because the JCC had a broad discretion to take no further action in respect of a complaint and Mr Siemer was unlikely to be able to meet the high standard required to judicially review the formation of an opinion.^[3]
[4] Mr Siemer filed his notice of appeal dated 31 March 2014 against Kós J’s security for costs decision on 1 April 2014. At the same time he applied to the Registrar of this Court for an order dispensing with security for costs.
[5] The JCC opposed Mr Siemer’s application for dispensation with security for costs.
[6] On 14 April 2014 the Deputy Registrar of this Court declined to make an order dispensing with security for costs, set at $5,880.
[7] Mr Siemer then made two applications:

(a) he applied on 17 April 2014 under s 61A(1) of the Judicature Act 1908 (the Act) for an order by a single judge that security be dispensed with; and

(b) he applied on 28 April 2014 under s 61A(3) of the Act and r 7(2) of the Court of Appeal (Civil) Rules 2005 (the Rules) for a review of the Deputy Registrar’s refusal to dispense with security for costs.

[8] The relevant parts of s 61A are:

(1) In any civil appeal or in any civil proceeding before the Court of Appeal, any Judge of that court, sitting in chambers, may make such incidental orders and give such incidental directions as he thinks fit, not being an order or a direction that determines the appeal or disposes of any question or issue that is before the court in the appeal or proceeding.

...

(3) Any Judge of the Court of Appeal may review a decision of the Registrar made within the civil jurisdiction of the court under a power conferred on the Registrar by any rule of court, and may confirm, modify, or revoke that decision as he thinks fit.

[9] In other litigation involving Mr Siemer, the Supreme Court has held that:

(a) A single judge of this Court may have jurisdiction to dispense with security for costs under s 61A(1) where there has been no application to the Registrar for an order dispensing with security for costs, but is most unlikely to assume or exercise it.^[4] This Court is entitled to require appellants to follow the procedures in the Rules and make an application to the Registrar (or Deputy Registrar) under r 35(7) if they seek dispensation with security.

(b) Where an application has been made to the Registrar to dispense with security the only avenue for review of that decision is under s 61A(3) and r 7(2).^[5]

[10] In the present case, where there is an application for review of the Registrar’s decision refusing to dispense with security for costs under s 61A(3) and r 7(2), Mr Siemer has put forward no reasons to justify my not following the previous decisions of the Supreme Court.
[11] Accordingly, I decline his application for an order under s 61A(1) of the Act that security for costs be dispensed with.
[12] Turning then to Mr Siemer’s application for a review of the Registrar’s decision, the starting point now is the decision of the Supreme Court in Reekie v Attorney-General where it was held that the power to dispense with security for costs should be used to preserve access to this Court by impecunious litigants in cases which a solvent litigant would reasonably wish to prosecute.^[6]
[13] In light of the decision in Reekie I issued a minute on 12 June 2014 summarising relevant aspects of that decision and directing that, if Mr Siemer wished to pursue his application, he was to provide the following information to the Court and counsel for the JCC by Friday 20 June 2014:

(a) full disclosure of his financial circumstances and the sources of funding relied on by him to support his general lifestyle;

(b) full disclosure of the financial circumstances of any related family trust that, or relative who, may be able to provide funding;

(c) information as to what, if any, security he can provide; and

(d) any submissions in support of the proposition that a solvent appellant would reasonably wish to prosecute the appeals against the two High Court orders for security for costs.

[14] Mr Siemer responded by filing a memorandum dated 16 June 2014, but did not provide any of the information or submissions that he was directed to provide.
[15] Accordingly, for the following reasons, Mr Siemer’s application under s 61A(3) and r 7(2) for a review of the Registrar’s decision refusing to dispense with security for costs is dismissed.
[16] First, in the absence of any evidence from Mr Siemer about his financial circumstances or the financial circumstances of any related family trust or relative, Mr Siemer has failed to establish his impecuniosity. I note that this conclusion is consistent with previous decisions.^[7] Contrary to Mr Siemer’s suggestion, the fact that the Deputy Registrar may have waived fees for the appeal is not conclusive evidence of impecuniosity.^[8]
[17] Second, I am satisfied that a solvent appellant would not reasonably wish to prosecute the appeal against Kós J’s two orders for security for costs. As counsel for the JCC submit, Mr Siemer’s appeal in this case is simply hopeless. It involves a challenge to the exercise of a discretion by the High Court Judge who correctly balanced Mr Siemer’s interests in access to justice against the JCC’s interests in being protected from unjustified litigation and correctly concluded that the prima facie unmeritorious claims against the JCC, coupled with oppression by reason of Mr Siemer’s failure to pay costs in unsuccessful litigation in the past, meant that security for costs should be ordered.^[9]
[18] Although I gave him an opportunity to do so, Mr Siemer has provided no submissions explaining why a reasonable and solvent litigant would prosecute the appeal.
[19] Third, I am satisfied that Mr Siemer’s appeal is vexatious. As the Supreme Court held in Reekie,^[10] protecting respondents from vexatious appeals is a legitimate purpose of the security for costs regime. As counsel for the JCC submit, Mr Siemer’s appeal fulfils all of the criteria identified by the Supreme Court as indicating vexatiousness: the unreasonable and tendentious conduct of litigation; extreme claims made against other people involved in the case; and a history of unsuccessful proceedings and unmet costs orders.
[20] Mr Siemer’s conduct of the litigation has been unreasonable and tendentious. For example, he has failed to provide the information or make the submissions requested in my minute of 12 June 2014.
[21] Mr Siemer has made extreme claims against others involved in the case. For example:

(a) His notice of appeal of 31 March 2014 describes the judgment under appeal as “a transparent action by a Crown Judge to obstruct court access and instil instability into the proceedings”.^[11]

(b) His submissions to the High Court of 25 March 2014 describe, at para 2, the JCC’s application for security for costs as a “transparent attempt to coerce [the] Court into punishing the plaintiff for bringing the judicial review”.^[12]

(c) His notice of opposition to the application for security for costs in the High Court dated 9 July 2013 at para 9 describes the JCC’s application for security for costs as “an abuse of the Court’s processes by officers of the Court”.

[22] Mr Siemer has a history of unsuccessful proceedings and unmet cost orders. Previous cost awards in favour of the JCC amounting to $25,633.17 have gone unpaid.^[13] Mr Siemer has filed eight judicial review proceedings against the JCC. Five have been struck out and the sixth was dismissed by summary judgment. The only remaining proceedings are the present proceedings, which the High Court has found to be prima facie unmeritorious.
[23] On 30 April 2014 the High Court made orders that Mr Siemer not institute or continue proceedings without leave against, among other parties, the JCC.^[14] Although the Court made it clear that these orders do not directly restrict Mr Siemer’s appeal rights,^[15] the orders are the result of Mr Siemer’s history of vexatious conduct towards the JCC and others.
[24] Finally, I am satisfied that it would be unjust to require the JCC to defend the High Court judgment without the protection of security.^[16] Mr Siemer is a litigant in person and has obtained a fee waiver. All costs of the litigation therefore fall on the other parties.^[17] While access to justice is an important consideration, so too is the principle that a respondent, including a public body which has a budget which represents public money,^[18] should not have to face the risk of a hopeless appeal without provision for security. This appeal is one that “when viewed in light of the costs that others must incur, is disproportionate to the occasion”.^[19]
[25] In view of the fact that as a result of the present applications the previous deadline for the payment of security for costs by Mr Siemer has passed, he should be granted an extension of time under r 5(2) of the Rules to do so. I fix 15 August 2014 as the new and final date for payment.
[26] In terms of r 37(2) of the Rules, no hearing date for the appeal should be allocated until the security for costs is paid.

[27] If Mr Siemer fails to pay the security for costs by 15 August 2014, the JCC may apply under r 37(1) for the appeal to be struck out.^[20]

Solicitors:
Gault Mitchell Law, Wellington for First Respondent
Crown Law Office, Wellington for Second and Third Respondents

^[1] Siemer v Judicial Conduct Commissioner [2014] NZHC 596.

^[2] At [12].

^[3] At [14].

^[4] Siemer v Official Assignee [2014] NZSC 42 at [5]; Siemer v Stiassny [2013] NZSC 115 at [9], n 4 [Siemer leave decisions]; and Siemer v Stiassny [2013] NZSC 110 [Siemer review decision] at [10], n 4.

^[5] Siemer leave decisions, above n 4, at [9] and Siemer review decision, above n 4, at [10] and [10], n 4.

^[6] Reekie v Attorney-General [2014] NZSC 63 at [35].

^[7] Siemer v Fardell [2011] NZSC 30 at [5]; Siemer v Judicial Conduct Commissioner CA422/12, 5 September 2012; Siemer v Fardell HC Auckland CIV-2003-404-5782, 21 June 2010 at [24]; Siemer v Fardell [2010] NZCA 586; and Siemer v Chief Justice Elias [2011] NZCA 183 at [11].

^[8] Reekie v Attorney-General, above n 6, at [42].

^[9] Siemer v Judicial Conduct Commissioner, above n 1, at [18].

^[10] Reekie v Attorney-General, above n 6, at [39].

^[11] Notice of appeal dated 31 March 2014, ground c.

^[12] There are separate, but similar submissions for each of the two High Court challenges (proceedings 985 and 1369).

^[13] Recorded in Siemer v Judicial Conduct Commissioner, above n 1, at [15].

^[14] Attorney-General v Siemer [2014] NZHC 859 at [204(a)(vii)].

^[15] At [208].

^[16] Reekie v Attorney-General, above n 6, at [40].

^[17] Ibid.

^[18] See Siemer v Judicial Conduct Commissioner [2012] NZSC 92 at [3] and [3], nn 3 and 4.

^[19] Reekie v Attorney-General, above n 6, at [40].

^[20] Moodie v Strachan [2014] NZCA 260 at [6]–[7] and [11]–[14].

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2014/358.html