Siemer v Judicial Conduct Commissioner [2012] NZHC 1481 (27 June 2012)

Last Updated: 5 July 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-0646 [2012] NZHC 1481

BETWEEN VINCENT ROSS SIEMER Plaintiff

AND JUDICIAL CONDUCT COMMISSIONER First Defendant

AND SIAN SEERPOOHI ELIAS Second Defendant

AND PETER BLANCHARD Third Defendant

AND JOHN MCGRATH Fourth Defendant

AND WILLIAM YOUNG Fifth Defendant

AND ANDREW TIPPING Sixth Defendant

Hearing: 20 June 2012

Appearances: Plaintiff in Person

DJ Goddard QC and NK Caldwell for First Defendant

No appearance for Second to Sixth Defendants (abiding the decision of the Court)

Judgment: 27 June 2012

_{JUDGMENT OF TOOGOOD J}

This judgment was delivered by me on 27 June 2012 at 5:00 pm

Pursuant to Rule 11.5 High Court Rules

_{Registrar/Deputy Registrar}

SIEMER V JUDICIAL CONDUCT COMMISSIONER & ORS HC AK CIV-2012-404-0646 [27 June 2012]

Introduction

[1] In this proceeding, the plaintiff applies for judicial review of three decisions of the first defendant, the Judicial Conduct Commissioner (“the Commissioner”) appointed under the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (“the Act”). The Commissioner has filed an amended statement of defence and has applied, by an amended notice of application dated 3 April 2012, for an order for summary judgment against the plaintiff or, in the alternative, an order striking out the statement of claim. The Commissioner seeks costs.

[2] The Chief Justice and four other Judges of the Supreme Court are named as the second to sixth defendants respectively. The Judges abide the decision of the Court.

[3] The proceeding arises from a judgment of the Supreme Court1 dated

8 November 2011 (“the principal judgment) dismissing an appeal by Mr Siemer against a judgment of the Court of Appeal, and from the refusal of the Supreme Court on two subsequent occasions to recall its principal judgment. At issue in the review proceeding in this Court is the manner in which the Judicial Conduct Commissioner dealt with complaints made to him under the Act, by Mr Siemer, about the conduct of the judges of the Supreme Court in giving the three judgments and issuing a media release related to the principal judgment.

Background to the complaints

[4] The background to the complaints may be stated briefly. The approved ground for Mr Siemer’s appeal to the Supreme Court was:2

... whether leave of the Court of Appeal was required under s 67 of the Judicature Act for the applicant’s appeal against security for costs fixed by order of the High Court or whether appeal was available as of right under s 66 of the Judicature Act.

1 _{Siemer v Heron [2011] NZSC 133 (“the principal judgment”).}

2 Siemer v Heron [2011] NZSC 29.

[5] In the principal judgment, the Supreme Court, by a majority, upheld the argument for Mr Siemer on the approved ground of appeal, determining that s 66 of the Judicature Act 1908 conferred an appeal as of right.

[6] In written and oral submissions to the Supreme Court, however, the respondents had raised another procedural issue which was relevant to the ultimate disposition of the appeal to the Court of Appeal. The issue was whether, before Mr Siemer had actually brought any appeal, his right to do so had ceased because, by operation of s 74(2) of the District Courts Act 1947, the underlying appeal from the District Court to the High Court was deemed to have been abandoned.

[7] The Court concluded unanimously that the respondents were correct that no appeal to the Court of Appeal had been validly instituted. Accordingly, the appeal to the Supreme Court was dismissed on that ground.3 A media release was issued saying that the appeal had been dismissed unanimously. The release explained the basis for the Court’s decision.

[8] Mr Siemer was aggrieved. On 5 December 2011, he applied to the Supreme Court for a recall of the principal judgment. His ground was that, because he had succeeded in establishing that there was a right of appeal under s 66, the Court’s order dismissing the appeal was not an accurate disposition of it.

[9] On the same day, Mr Siemer filed the first group of complaints with the Commissioner, alleging judicial misconduct by the Supreme Court Judges in issuing what he claimed was “a factually false and legally misleading judgment and press release.”

[10] On 9 December 2011, the Supreme Court issued a judgment (“the first recall judgment”) dismissing the application to recall the principal judgment.4 The Court held that it had had all the relevant factual material before it and had heard argument

_{on the s 74(2) point before deciding that the appeal should be dismissed. The Court}

3 _{The principal judgment at [35]-[41], [59].}

4 Siemer v Heron [2011] NZSC 151.

directed that costs in respect of the substantive appeal and the recall application should lie where they fell.

[11] On 9 December 2011, Mr Siemer also lodged the second group of complaints with the Commissioner. He alleged that the Supreme Court Judges had admitted that they had engaged in retroactive judicial actions without proper notice, and that the Court’s determination of the procedural issue regarding s 74(2) of the District Courts Act amounted to a fundamental breach of the rule of law as well as of human rights protections under the New Zealand Bill of Rights Act 1990. He said that the essence of his complaint was that the Court’s dismissal of the appeal, on the basis of a procedural issue that was identified subsequent to its decision to grant leave to appeal, amounted to judicial misconduct.

[12] On 14 December 2011, Mr Siemer filed an application for recall of the first recall judgment which was, effectively, a second application for recall of the principal judgment. He alleged that the recall judgment contained an admission of a fundamental failure of due process in the substantive appeal, in that the appeal had been dismissed on an unapproved ground, which was not a live issue before the Court, and was contrary to how the Court of Appeal had dealt with the appeal against the security for costs order in the High Court.

[13] When the second application for recall was filed in the Supreme Court, four Judges of the Court signed a handwritten Minute (“the second recall judgment”) on the cover of the application, in the following terms:

There is no merit in this application. Application dismissed.

“Elias CJ”, “Peter Blanchard J”, “APC Tipping J”, “JJ McGrath J”.

[14] On 20 December 2012, Mr Siemer lodged further complaints of judicial misconduct in relation to the second recall judgment, alleging that the issuing of a judgment in the manner described “did not meet the minimum legal standard and amounted to a breach of law”. The complaint alleged that the Court was required to issue a public judgment, with reasons.

[15] It is convenient at this point to describe the relevant elements of the scheme of the Act, with specific reference to the purpose of the Act, the functions and powers of the Commissioner, and the procedure the Commissioner is required to follow in respect of any complaint.

[16] The purpose of the Act is described in s 4 in the following terms:

4 Purpose

The purpose of this Act is to enhance public confidence in, and to protect the impartiality and integrity of, the judicial system by—

(a) providing a robust investigation process to enable informed decisions to be made about the removal of Judges from office:

(b) establishing an office for the receipt and assessment of complaints about the conduct of Judges:

(c) providing a fair process that recognises and protects the requirements of judicial independence and natural justice.

[17] It is to be emphasised that the “fair process” provided by the Act is one which

“protects the requirements of judicial independence”.5

[18] It is noteworthy that there is no requirement in the Act that the Commissioner be a lawyer or a retired judge.

[19] The relevant functions and powers of the Commissioner are set out in s 8 as follows:

8 Functions and powers of Commissioner

(1) The functions of the Commissioner are—

(a) to receive complaints about Judges and to deal with the complaints in the manner required by this Act:

(b) to conduct preliminary examinations of complaints:

(c) in appropriate cases, to recommend that a Judicial Conduct Panel be appointed to inquire into any matter or matters concerning the conduct of a Judge.

...

(2) It is not a function of the Commissioner to challenge or call into question the legality or correctness of any instruction, direction, order, judgment, or other decision given or made by a Judge in relation to any legal proceedings.

...

[20] Section 8(2) is the provision which underpins the three decisions of the Commissioner which Mr Siemer seeks to have reviewed by this Court. In providing expressly that it is not a function of the Commissioner to challenge or call into question the legality or correctness of any judicial decision, the statutory scheme supports judicial independence.6

[21] As Mr Goddard QC submitted, the Commissioner and any Judicial Conduct Panel constituted under the provisions of the Act play no role in New Zealand’s judicial hierarchy and the system of appeals and reviews provided by legislation. Ultimately, it is Parliament’s responsibility to determine whether a judge should be removed from office. Mr Goddard emphasised in his submissions that it would be entirely inconsistent with our judicial system and the hierarchy of courts, appeals and reviews for the Commissioner or Parliament to be empowered to exercise their statutory functions by questioning or challenging judicial decisions relating to any legal proceedings.

[22] In terms of the procedure to be followed, the Commissioner is obliged, on receipt of a complaint, to notify the Judge.7

[23] What happens to a complaint next is at the heart of Mr Siemer’s complaints and is, essentially the ground upon which he seeks to review the Commissioner’s actions regarding each of his complaints.

15 Commissioner must conduct preliminary examination

(1) The Commissioner must conduct a preliminary examination of each complaint and form an opinion as to whether—

(a) there are any grounds for exercising his or her power under section 15A to take no further action in respect of the complaint; or

(b) there are any grounds for dismissing the complaint under section 16; or

(c) the subject matter of the complaint, if substantiated, could warrant referral of the complaint to the Head of Bench under section 17; or

(d) the subject matter of the complaint, if substantiated, could warrant consideration of the removal of the Judge from office by way of a recommendation under section 18.

(2) In the course of the preliminary examination, the Commissioner

may seek the Judge's response to the complaint.

(3) In conducting a preliminary examination, the Commissioner must act in accordance with the principles of natural justice.

(4) For the purpose of a preliminary examination, the Commissioner

may—

(a) make any inquiries into the complaint that he or she thinks appropriate:

(b) obtain any court documents (including, for example, the transcript of a hearing) that are relevant to an inquiry under paragraph (a):

(c) consult the Head of Bench.

(5) Having completed the preliminary examination and formed the opinion required by subsection (1), the Commissioner must take 1 of the following steps:

(aa) exercise his or her power to take no further action in respect of the complaint (section 15A); or

(a) dismiss the complaint (section 16); or

(b) refer the complaint to the Head of Bench (section 17); or

(c) recommend that the Attorney-General appoint a Judicial Conduct Panel to inquire into any matter or matters concerning the conduct of a Judge (section 18).

[25] It is evident from s 15, and from ss 15A, 16, 17 and 18, that the principal role of the Commissioner is to make a decision about how any complaint of judicial misconduct should be dealt with.8 The Commissioner has no disciplinary powers. The statutory scheme is that the Commissioner may decide that any complaint which might be considered justified is to be dealt with by the relevant Head of Bench or, where the decision is that an inquiry is necessary or justified, and the conduct may warrant consideration of removal from office, recommend the appointment of a Judicial Conduct Panel.

[26] It is in that sense, therefore, that s 15 refers to the Commissioner being required to undertake a preliminary examination of the complaint. The use of the word “examination” is instructive; it imports something less than a full inquiry or investigation. It is noteworthy, in that respect, that while the Commissioner may seek the Judge’s response to the complaint,9 and may make inquiries into the

complaint,10 or may obtain Court documents for that purpose,11 or consult the Head

of Bench,12 none of those steps is mandatory. But it is also clear from the availability of those procedural powers that the examination is not an event but a process. It is for the Commissioner to determine at what point in the process of conducting the preliminary examination he or she is sufficiently informed to decide what should be done.

[27] The statutory scheme plainly contemplates the possibility that the determination the Commissioner must make under s 15(5), as to which of the steps available under ss 15A, 16, 17 and 18 the Commissioner will take, is one which may be made without seeking a response from the Judge or seeking further information

from the complainant. Since complaints to the Commissioner must be in writing,13 it

follows from the statutory scheme as just described that it is open to the

_{Commissioner, if he or she considers it appropriate to do so, to “conduct a}

8 _{Wilson at [42].}

9 _{Section 15(2).}

10 _{Section 15(4)(a).}

11 _{Section 15(4)(b).}

12 _{Section 15(4)9c).}

13 Section 13(1)(a).

preliminary examination” simply by considering the written complaint and any accompanying material provided by the complainant.

[28] The present proceedings concern the Commissioner’s decision to dismiss the complaints under s 16.

[29] Section 16 relevantly provides:

16. Commissioner must dismiss complaints that fail to meet required threshold
    

(1) The Commissioner must dismiss the complaint if he or she is of the opinion that—

(a) the complaint is not within the Commissioner's jurisdiction; or

(b) the complaint has no bearing on judicial functions or judicial duties; or

(c) the requirements of sections 12 and 13 have not been met; or

(d) the complaint is frivolous, vexatious, or not in good faith; or

(e) the subject matter of the complaint is trivial; or

(f) the complaint is about a judicial decision, or other judicial function, that is or was subject to a right of appeal or right to apply for judicial review; or

(g) the person who is the subject of the complaint is no longer a Judge; or

(h) the subject matter of the complaint was considered before the commencement of this section by the Head of Bench or the Judicial Complaints Lay Observer; or

(i) he or she has considered or previously considered the subject matter of the complaint, and that subject matter could not, if substantiated, warrant either referral to the Head of Bench under section 17 or consideration of the removal of the Judge from office by way of a recommendation under section

18.

...

(2) If the Commissioner dismisses a complaint under this section, he or she must give the complainant and the Judge who is the subject of the complaint written notification stating—

(a) that the complaint has been dismissed; and

(b) the grounds on which that decision was made.

[30] It is inevitable that, in reaching a decision to refer a complaint to the Head of Bench, or to recommend the appointment of a Panel, the Commissioner will have formed an opinion that the complaint is of sufficient substance to warrant the course to be taken.14

[31] So far as s 16(1)(a) is concerned, therefore, a complaint will not be within the Commissioner’s jurisdiction if making a decision to refer the complaint to the Head of Bench under s 17 or to recommend under s 18 that the Attorney-General appoint a Judicial Conduct Panel would involve challenging or calling into question “the legality or correctness of any instruction, direction, order, judgment or other decision

given or made by a Judge in relation to any legal proceedings.”15

[32] It is clear from s 16(1) that the Commissioner has no power to continue a preliminary examination if he or she forms the opinion that the complaint meets any one of the criteria for mandatory dismissal set out in paragraphs (a)-(i). So, as a matter of practice, the preliminary examination of the complaint should begin with a consideration of those criteria. Logically, if the Commissioner is not of the opinion that s 16(1) applies, the next consideration would be whether the Commissioner should exercise the discretion under s 15A to take no further action in respect of the

complaint because that course would be unjustified.16

Application for summary judgment - principles

[33] The first defendant applies for summary judgment, under r 12.2(2) of the

High Court Rules. Alternatively, the first defendant seeks an order striking out the statement of defence under r 15.1(1).

14 _{Wilson at [43]-[45].}

15 _{Section 8(2).}

16 Section 15A(1).

[34] In proceedings to strike out a pleading under r 15.1(1), the Court’s consideration is focused on the pleading and it is not concerned with any arguable underlying factual allegations. An application for summary judgment, in contrast, is supported by affidavit evidence, but in cases such as the present it is similar to a strike out application in that the onus is upon the defendant to show that the plaintiff’s claim cannot succeed.

[35] Rule 12.2(2) reads as follows:

12.2 Judgment when there is no defence or when no cause of action can succeed

...

(2) The court may give judgment against a plaintiff if the defendant satisfies the court that none of the causes of action in the plaintiff's statement of claim can succeed.

[36] The following principles are applicable to the first defendant’s application in this case:

(a) Summary judgment will be refused where there there are material disputes of fact which cannot be resolved on an examination of the affidavit evidence.17

(b) Summary judgment will not be appropriate where it is possible for the plaintiff to amend the claim so as to remedy the defects relied upon by the defendant; it should be used only where the defendant has a clear answer to the plaintiff’s claim which cannot be contradicted.18

Is summary judgment available in this case?

[37] I am satisfied that, given that the Commissioner’s decisions which are under scrutiny in this proceeding were made on the basis of the written complaint and

17 Ferrymead Tavern Limited v Christchurch Press Limited (1999) 13 PRNZ 616 (CA), Attorney- General v Jones [2003] UKPC 48; (2003) 16 PRNZ 715 (PC).

18 Westpac Banking Corp v MN Kembla NZ Limited [2001] 2 NZLR 298 (CA), Attorney-General v

Jones.

supporting documents filed by the plaintiff, the issues which arise can be determined now. There could be no additional relevant evidence given at trial on the issue of whether the Commissioner properly concluded that the complaints were not within his jurisdiction.

[38] Mr Siemer argued that it was clear on the face of the statement of defence that the first defendant disputed allegations of fact made by the plaintiff and that summary judgment should not be entered in such circumstances. An analysis of the pleadings indicates, however, that the defendants’ denials are not about what occurred but how the facts should be characterised. In those circumstances, I do not consider that there is a factual dispute between the parties on any material issue which precludes consideration of whether it is appropriate to enter judgment at this point.

[39] I am also satisfied that the first defendant’s arguments go beyond merely indicating deficiencies in the way in which the plaintiff’s case has been pleaded. If the Commissioner was clearly right to determine that he had no jurisdiction to reach an opinion as to the appropriate disposition of the complaints other than by dismissal, the plaintiff’s application for judicial review cannot possibly succeed and it would be appropriate to enter judgment for the defendants.

[40] I turn, then, to consider the substance of the plaintiff’s complaints and whether the Commissioner’s determination that the complaints should be dismissed was correct.

The first complaints

[41] The Commissioner dealt with all of Mr Siemer’s complaints on

7 February 2012, grouping each of them according to the judgment from which the complaints against each Judge arose. It is convenient to consider in that manner, in respect of the groups of complaints related to the three judgments, how each was approached by the Commissioner.

[42] In respect of the first complaints arising from the principal judgment, the Commissioner described the background Court proceeding and summarised the effect of the judgment. The Commissioner then described Mr Siemer’s complaints of 5 December 2011 in the following terms:

The Complaint

10. In his letter of 5 December, the Complainant asserts that the Court’s judgment dismissing his appeal provides the basis for a complaint of judicial misconduct. He also asserts that the Court’s publication of a press release outlining the result of the judgment amounts to judicial misconduct.

11. The Complainant’s allegations of misconduct are based on his assertion that his appeal was successful in light of the fact he “prevailed on the only approved ground of appeal”. The alleged conduct of which he complains is “the public issuance of a factually false and legally misleading judgment and press release”.

12. On the basis of these assertions the Complainant alleges that the Supreme Court judges have misled the public. The Complainant suggests in his letter of 5 December that it would defy logic that this alleged misleading of the public could have been inadvertent. Accordingly, the Complainant infers that the judges have deliberately engaged in deceptive conduct through the delivery of the Court’s judgment and accompanying press release.

[43] The essence of Mr Siemer’s complaints about the principal judgment and the media release is that, in issuing a judgment dismissing the appeal, the members of the Supreme Court wilfully misled the public about the outcome of his appeal. I put aside the possibility that, on further investigation, the Commissioner might have determined that the complaints related to the media release were outside his jurisdiction on the basis that the release was issued by the Registrar of the Court and not the Judges. For present purposes, it is sufficient to address the matter solely on the basis of s 8(2) of the Act.

[44] The first proposition on which the complaints of misconduct are based is that the Supreme Court was wrong to hold that Mr Siemer’s appeal from the Court of Appeal judgment should be dismissed in circumstances where the only approved ground of appeal was one upon which his argument succeeded.

[45] Given the position of the Chief Justice as Head of Bench of the Supreme

Court, the only reasonable possibility, if further action in respect of the complaints

was justified, would be for the Commissioner to recommend under s 18 that a Judicial Conduct Panel be appointed.19 In order to be satisfied that there was sufficient substance to the complaints to warrant taking that course, the Commissioner would necessarily have to challenge or call into question the legality or correctness of the principal judgment.

[46] In those circumstances, the Commissioner’s opinion that the complaints were not within his jurisdiction was undoubtedly correct. Because of the mandatory obligation on the Commissioner to dismiss the complaint in such circumstances, dismissal was inevitable.

[47] But the plaintiff’s criticisms of the Commissioner’s decision are also founded on a point which is more nuanced. In discussing his decision, the Commissioner said:

14. The Complaint that the Supreme Court justices engaged in judicial misconduct through their order of dismissal of the Complainant’s appeal and the publication of the accompanying press release is premised upon an assumption that the Court’s judgment was incorrect, ie that the Complainant’s appeal was not in fact – and could not be – dismissed.

15. In order to undertake a preliminary examination of the Complaint alleging judicial misconduct on the part of the five Supreme Court judges, I would therefore be required to call into question the correctness of the Court’s judgment in Siemer v Heron. This is on the basis that, as noted above, the Complaint is based on the assumption that the Court’s judgment was incorrect and that the Complainant’s appeal was not in fact dismissed. In light of the requirements of s 8(2) of the Act, I have reached the view that I am not entitled to embark upon such an examination.

[48] In expressing himself as he did in paragraph 14 of his decision, the Commissioner was undoubtedly correct. The difficulty arises with his apparent view, expressed in paragraph 15, that the absence of jurisdiction prevented him from undertaking the preliminary investigation which he was required by s 15(1) to

_conduct.

19 Mr Siemer recognised as much in his third complaint.

[49] There is force in Mr Siemer’s argument that the Commissioner may have mis-stated the legal position, but I do not think the way in which the Commissioner expressed himself in paragraph 15 indicates that he failed, in fact, to conduct the preliminary examination. As I have explained at [26] above, the preliminary examination required of the Commissioner is a process which may involve merely the examination of the written complaint and supporting documents. Undoubtedly, that is what occurred in this case in respect of the first complaints; it was the examination of the material submitted by the plaintiff which led to the formation of the Commissioner’s opinion that the complaints fell outside his jurisdiction. That consideration fulfilled the statutory duty to conduct a preliminary examination under s 15(1).

[50] While the way in which the Commissioner expressed himself may indicate a mis-apprehension, I am satisfied that there was no error in his decision which is susceptible to judicial review.

[51] Similar reasoning applies to that part of the decision on the first complaint which relates to the media release. Even if issuing the release was an act of the Judges, the challenge to it was a challenge to the legality or correctness of the principal judgment. The Commissioner was right to conclude that that aspect of the complaints also was not within his jurisdiction.

The second complaints

[52] The second complaints, dated 9 December 2011, alleged that the Judges of the Supreme Court had admitted that they had engaged in retroactive judicial action without proper notice, and that the Court’s determination of the procedural issue regarding s 74(2) of the District Courts Act amounted to a fundamental breach of the rule of law as well as of human rights protections under the New Zealand Bill of Rights Act.

[53] The Commissioner determined in his decision that the Court’s decision based on s 74(2) was integral to the Court’s decision to dismiss the complainant’s appeal, as explained by the Court in the first recall judgment. The Commissioner concluded

that the conduct about which the complaint was made “formed an essential part of

the Court’s decision-making process.” The Commissioner said:

10. In light of the inherent link between the Court’s determination of the s 74(2) issue and the dismissal of the Complainant’s appeal, I am of the opinion that a preliminary examination of the Complaint would involve calling into question the Court’s decision to dismiss the appeal. Accordingly, I have reached the view that, pursuant to s 8(2) of the Act, consideration of the Complaint falls outside the scope of my prescribed jurisdiction.

[54] To the extent that the Commissioner’s conclusions demonstrate a misapprehension of whether he had, in fact, embarked on a preliminary examination, I do not think that misapprehension is material, for the reasons given in relation to the first complaints.

[55] Taking the examination further, to consider whether it was appropriate to recommend the appointment of a Judicial Conduct Panel, would necessarily have involved challenging or calling into question the legality or correctness of the Court’s decision. The Commissioner was right to determine that the complaint was outside his jurisdiction. There is no arguable ground for a review of that decision.

The third complaint

[56] The third complaint related not to the substance of the second recall judgment but to the way in which it was promulgated. It was alleged by Mr Siemer that the succinct handwritten notation on the cover of the application for recall, stating that there was no merit in the application and that it was dismissed, breached the Court’s obligations to issue public judgments accompanied by reasons.

[57] The Commissioner concluded that a preliminary examination of the complaint, pursuant to the prescribed functions of his office under s 8(1) of the Act, would involve an exploration of the legality of the Court’s order. He concluded that consideration of the complaint would fall outside his jurisdiction.

[58] Again, any misapprehension on the part of the Commissioner that he had not embarked on a preliminary examination is immaterial. His decision that considering

the complaint any further would necessarily involve calling into question the legality of the Court’s order dismissing the second recall application was undoubtedly correct.

[59] In respect of the third complaint, therefore, there was no reviewable error on the part of the Commissioner.

Decision

[60] I am satisfied that none of the causes of action in the plaintiff’s statement of claim can succeed against any of the defendants. There will be judgment for the defendants accordingly, dismissing the applications and refusing the relief sought.

Costs

[61] The first defendant sought costs in the event that the application for summary judgment succeeded. Mr Goddard signalled in his written submissions that the Commissioner sought costs on a 2B basis for the proceeding, including the cost for two counsel and the cost of counsel travelling from Wellington for the hearing. The matter of costs was only touched on at the hearing, however, and was not fully argued by Mr Siemer. Mr Goddard did indicate, fairly, that he thought the claim for two counsel should not be pursued but he maintained the application for travelling expenses.

[62] The concession not to seek the costs of two counsel was appropriate, notwithstanding Mr Goddard’s acknowledgement of the significant contribution Ms Caldwell had made to the preparation of the written submissions. My preliminary view is that the first defendant was entitled to engage Wellington-based counsel.

[63] I reserve leave to the first defendant to file a memorandum of submissions as to costs, which should be filed and served by 17 July 2012. The plaintiff’s submissions in reply, if any, must be filed and served by 14 August 2012.

[64] To the extent that it may be relevant to the issue of costs, I record that Mr Siemer submitted in the course of his written submissions and oral argument, that it was inappropriate for the Commissioner not only to take an active role in defending the plaintiff’s proceeding but also to seek to strike it out. Mr Siemer relied upon observations of McCarthy P in NZ Engineering Industrial Union of

Workers v Court of Arbitration,20 in which the President noted that “when judicial

bodies or judicial officers are ... [joined as parties to a proceeding] they take no part in the argument and abide the judgment of the court”. The Judge pointed “to the well established principle that judicial bodies should strive not to enter into the fray in a way which might appear to favour the interests of one of the parties.”

[65] I explained to Mr Siemer that the Commissioner would not properly be described as a judicial officer and that, in any event, the principles referred to by McCarthy P did not apply where a person exercising a statutory power of decision was a defendant in an application for judicial review.

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

Toogood J

Solicitors:

C Matsis, Gault Mitchell Law, Wellington: [e-mail]

Copy:

D Goddard QC, Wellington: [e-mail]

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

20 NZ Engineering Industrial Union of Workers v Court of Arbitration [1976] 2 NZLR 283 at 284.