Siemer v Harvey [2012] NZHC 1434 (22 June 2012)

Last Updated: 13 July 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-7890 [2012] NZHC 1434

BETWEEN VINCENT ROSS SIEMER Plaintiff

AND DAVID HARVEY First Defendant

AND ATTORNEY GENERAL OF NEW ZEALAND

Second Defendant

Hearing: 20 June 2012

Appearances: Plaintiff in Person

MD Downs for First and Second Defendants

Judgment: 22 June 2012

JUDGMENT OF TOOGOOD J

[REVIEW OF COSTS DECISION OF DOOGUE AJ ON DISCONTINUANCE

_{OF PROCEEDING]}

This judgment was delivered by me on 22 June 2012 at 11:00 am

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

V Siemer, 27 Clansman Tce, Gulf Harbour: [e-mail]

MD Downs, Crown Law, Wellington: [e-mail]

SIEMER V HARVEY & ANOR HC AK CIV-2010-404-7890 [22 June 2012]

[1] The plaintiff has applied under s 26P(1) of the Judicature Act 1908 for a review of a costs order made against him by an Associate Judge.1

[2] On 25 November 2012, Mr Siemer filed a statement of claim in this Court seeking general damages of $25,000 and exemplary damages of $10,000 against the first defendant, a District Court Judge. The Attorney-General was sued “as the figurative Crown legal representative of New Zealand, for alleged legal abuses by the first defendant.”

[3] It is sufficient for present purposes to record that the claim against Judge Harvey and the Attorney-General related to a decision of the Judge to dismiss an application by Mr Siemer, in connection with proceedings issued by him in the District Court at Auckland, to vary or set aside an order requiring payment of

$20,000 by way of security for costs.

[4] The essence of the damages claim was an allegation that the Judge had breached the principles of natural justice in contravention of Mr Siemer’s rights under s 27 of the New Zealand Bill of Rights Act 1990, and that claims for general and exemplary damages were available as a result. In his case management memorandum filed in advance of a telephone conference to be held on

22 March 2011 by Christiansen AJ, Mr Siemer described the claim for damages as

one “in statute, affirmed by recent precedent.”

[5] Mr Siemer’s reference to “recent precedent” was a reference to the judgment of the Court of Appeal in Chapman v Attorney-General.2 An appeal from that decision was then before the Supreme Court for determination, the argument having been heard in December 2010 and judgment being awaited.

[6] In their statement of defence dated 31 January 2011, the first and second defendants pleaded the following affirmative defences:

(a) the allegations against Judge Harvey were barred by virtue of the immunity of District Court Judges from suit;

(b) to the extent that the plaintiff made allegations of vicarious liability against the Attorney-General, the first defendant was exercising responsibilities of a judicial nature and accordingly the allegations were barred by virtue of s 6(5) of the Crown Proceedings Act 1950;

(c) the proceeding was an abuse of process because the plaintiff had exercised his right to appeal to the High Court against Judge Harvey’s decision of 22 September 2010, the decision which he sought to review in the present proceeding, and that a fixture for the hearing of that appeal had been allocated for 19 May 2011; and

(d) that even if there had been breaches of the New Zealand Bill of Rights Act 1990, general and exemplary damages were not available in law and alternatively, such damages would not be available because the plaintiff had a proper and adequate remedy by way of the appeal to the High Court.

[7] The question of law which had been approved for consideration of the Supreme Court in the Chapman appeal was “whether Bill of Rights damages can be ordered against the Attorney-General on behalf of the Crown for breach of fair trial rights by judicial conduct in respect of which the judicial officer is immune from liability”.3 It was agreed between the parties, and concurred in by Christiansen AJ, that further steps in relation to this proceeding should be deferred pending the outcome of the appeal to the Supreme Court in Chapman.

[8] That judgment was delivered on 16 September 2011.4 By a majority, the Supreme Court determined that the High Court did not have jurisdiction to hear and determine a claim for public law compensation for alleged breaches by the judiciary of ss 25 and 27 of the New Zealand Bill of Rights Act.

[9] Responsibly, Mr Siemer filed a memorandum in this proceeding, ahead of a telephone conference scheduled to take place with Christiansen AJ on

25 October 2011, seeking to “withdraw the proceeding, by consent, without prejudice” and to have the Court refer the claim and his supporting affidavit to the Office of the Judicial Conduct Commissioner. This latter request was based apparently on a reference in the majority judgment of the Supreme Court in Chapman to the availability of complaints about judicial misconduct being referred to the Commissioner under the Judicial Conduct Commissioner and Judicial Conduct

Panel Act 2004.5

[10] It was submitted by counsel for the defendants, in response, that if the plaintiff wished to discontinue this proceeding he was required to file a notice of discontinuance in accordance with r 15.19 of the High Court Rules. Counsel signalled that the defendants would seek costs in that event under r 15.23.

[11] Rule 15.23 provides:

15.23 Costs

Unless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.

[12] In Kroma Colour Prints v Tridonicatco NZ Limited, the Court of Appeal held “that the presumption in favour of awarding costs to a defendant against whom a proceeding had been discontinued may be displaced if there were just and equitable circumstances not to apply it.” 6

[13] The onus is on the plaintiff to satisfy the Court that because of the particular circumstances, the normal presumption of costs in favour of the defendant should not apply.7 It is appropriate to determine whether the plaintiff acted reasonably in commencing the proceeding and whether a particular defendant acted reasonably in

_{defending it.}8 _{However, the presumption is not displaced merely because the}

5 _{At [194]-[195], per McGrath and William Young JJ.}

6 _{Kroma Colour Prints v Tridonicatco NZ Limited [2008] NZCA 150, (2008) 18 PRNZ 973 at [12].}

7 Paul v Raklander HC Auckland CIV-2006-404-3811, 20 June 2008.

plaintiff acted reasonably in bringing and discontinuing the proceeding. While those are relevant factors more is needed to show that a costs award in a defendant’s favour would not be just or equitable.9

[14] Mr Siemer filed a costs memorandum arguing that the proceeding was issued pursuant to his statutory right to claim damages under the New Zealand Bill of Rights Act 1990. But, he said, the decision of the Supreme Court in Chapman, delivered after the filing of the proceeding, “declared by judicial fiat that the statutory remedies for breach of legal rights by judicial officers are no longer enforceable.”

[15] Mr Siemer referred to an observation by the United Nations Human Rights

Committee as follows:10

... the imposition of fees on the parties to proceedings that would de facto prevent their access to justice might give rise to issues under article 14, paragraph 1. In particular, a rigid duty under law to award costs to a winning party without consideration of the implications thereof or without providing legal aid may have a deterrent effect on the ability of persons to pursue the vindication of their rights under the Covenant in proceedings available to them.

Mr Siemer argued that it would be patently unjust for the Crown to be rewarded financially with a costs order by virtue of a retrospective ruling.

[16] In considering the defendants’ application for costs, Doogue AJ accepted a submission on behalf of the defendants that the Supreme Court decision in Chapman “simply reinforces the position that Mr Siemer’s claim lacked merit from the outset.”11

[17] Before me, Mr Siemer repeated the submissions which he had made in his costs memorandum. He emphasised particularly that it would be wrong in principle

_{for the Crown to seek to benefit financially by a costs order in its favour in}

9 Vector Gas Limited v Todd Petroleum Mining Company Limited HC Wellington CIV-2004-485-

_{1753, 7 December 2010 at [18].}

10 While Mr Siemer attributed this observation to UNHRC Communication No. 779/1997, Äärelä and

Näkkäläjärvi v Finland, it seems that the actual source is: UNHRC General Comment No. 32, Article

_{14: Right to equality before courts and tribunals and to a fair trial CCPR/C/GC/32 (2007).}

11 Siemer v Harvey HC Auckland CIV-2010-404-7890, Minute of Doogue AJ, 2 February2012 at [15].

circumstances where a citizen has exercised a legitimate right to sue and then been thwarted by a Court judgment removing the previously existing right to damages.

[18] Mr Siemer acted commendably in discontinuing his proceeding not long after the release of the Supreme Court’s judgment. He acknowledged that, although he claimed an unassailable right in law to issue the proceeding against Judge Harvey and the Attorney-General, whether he succeeded in obtaining damages for any breach would be a matter for trial. That was a proper position for him to take.

[19] Applying the principles summarised at [12] and [13], a court might look favourably at a proposition that, if the judgment of the Supreme Court in Chapman changed the law so that Mr Siemer was thereafter deprived of a right to claim damages which had existed at the time the proceeding was issued, it would be unjust and inequitable to make an award of costs, or of scale costs, against him. Whether the proceeding was misconceived from the outset needs to be considered.

[20] The judgment of the Court of Appeal in Chapman supported the proposition that a damages claim lay in respect of a Bill of Rights breach by a judicial officer. I put aside for the moment whether it was ever appropriate to name the District Court Judge as a party, in light of his judicial immunity. I also put to one side whether the claim against the Attorney-General was properly characterised as one of vicarious liability; the Attorney-General was undoubtedly the correct defendant in view of the Court of Appeal’s judgment.

[21] The difficulty for Mr Siemer, however, is that, applying the law after the Court of Appeal’s judgment in Chapman, a claim for Bill of Rights damages did not lie in circumstances where he had extant rights of appeal against the District Court decision which he said amounted to the breach of his right to natural justice.12

[22] Mr Siemer argued that his rights of appeal to this Court had been rendered nugatory by having been stayed on the basis of an unsatisfied order for security for costs. Payment of security, so as be able to pursue his appeal, was a matter for

_{Mr Siemer; the right to appeal remained.}

12 Chapman v Attorney-General referred to in n 2, at [106].

[23] I am satisfied that, given Mr Siemer’s available appeal rights, this proceeding was misconceived from the outset. The Supreme Court’s judgment in Chapman did not deprive Mr Siemer retrospectively of any pre-existing right to sue; he did not have one. In the circumstances, the fact that Mr Siemer discontinued after the Supreme Court judgment does not make it unjust or inequitable for costs to be awarded.

[24] The alternative basis upon which Mr Siemer suggested that an award of costs would be inequitable was that it was wrong for costs to be awarded in favour of the Crown in a way which would dissuade litigants from exercising their rights to sue the State.

[25] Even if I was to have regard to the observations of the UN Human Rights Committee quoted at [15], r 15.23 does not impose “a rigid duty under the law to award costs to a winning party without consideration of the implications thereof”. While a presumption in favour of costs exists under the rule, it is rebuttable in the interests of equity and justice. When the Crown is sued, there is no good reason why it should be in a position which is any different from that of a private litigant when it comes to costs. I see no reason, merely because the Crown was the defendant in this proceeding, to come to any different view to that of the Associate Judge.

[26] The costs claimed were calculated in accordance with the High Court Rules. The order for payment of $7,708.00 costs and $104.21 disbursements is confirmed.

......................................................

Toogood J