Siemer v Judicial Conduct Commissioner [2012] NZHC 2710 (16 October 2012)

Last Updated: 18 December 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-8024 [2012] NZHC 2710

UNDER the Judicature Amendment Act 1972

IN THE MATTER OF an application for Judicial Review under s

16 of the Judicial Conduct Commissioner and Judicial Panel Act 2004

BETWEEN VINCENT ROSS SIEMER Plaintiff

AND JUDICIAL CONDUCT COMMISSIONER First Defendant

AND HELEN DIANA WINKELMANN Second Defendant

Hearing: 1 June 2012

Appearances: F C Deliu for Plaintiff

P J Gunn for First and Second Defendant

Judgment: 16 October 2012

_{JUDGMENT OF PETERS J}

This judgment was delivered by Justice Peters on 16 October 2012 at 4 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

_{Solicitors: Crown Law, Wellington: [e-mail]}

_{Counsel: F C Deliu, Auckland: [e-mail]}

SIEMER V JUDICIAL CONDUCT COMMISSIONER HC AK CIV-2011-404-8024 [16 October 2012]

Introduction

[1] This is an application by the First Defendant, the Judicial Conduct Commissioner (“Commissioner”), for an order striking out the Plaintiff’s (“Mr Siemer”) statement of claim on the grounds that it discloses no reasonably arguable cause of action, is frivolous and vexatious and is otherwise an abuse of the process of the Court.

[2] In these proceedings Mr Siemer seeks review of a decision by the Commissioner to dismiss a complaint or complaints that Mr Siemer had made by letters dated 4 December 2009 and 4 November 2011. In his statement of claim, Mr Siemer refers to these letters as forming one complaint, and I shall do likewise. The complaint concerned actions of the Second Defendant, Winkelmann J.

[3] The Commissioner dismissed the complaint by letters dated 2 December

2011 and 9 February 2012 (“dismissal”). Although in his statement of claim Mr Siemer refers only to the first of these letters as constituting the dismissal, in fact there were two letters and both fall to be considered.

[4] The grounds on which Mr Siemer seeks review are that the Commissioner made an error of law in dismissing the complaint; that the dismissal was in breach of natural justice; that the Commissioner failed to take into account relevant considerations; that the Commissioner took into account irrelevant considerations; and that the dismissal was based upon procedural impropriety.

[5] The Second Defendant has filed an appearance abiding the decision of the Court. Counsel for the Commissioner entered an appearance for the Second Defendant at the hearing of the application.

Principles relevant to application to strike out

[6] The application to strike out is made pursuant to the Court’s inherent

jurisdiction and High Court Rules, r 15.1, which provides:

15.1 Dismissing or staying all or part of a proceeding

(1) The court may strike out all or part of a pleading if it—

(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleadings; or

(b) is likely to cause prejudice or delay; or

(c) is frivolous or vexatious; or

_{(d) is otherwise an abuse of the process of the court.}

...

[7] The principles to be applied in considering an application to strike out a pleading on the basis that it discloses no reasonably arguable cause of action are settled. They were summarised by the Court of Appeal in Attorney-General v Prince

& Gardner1 and by the Supreme Court in Couch v Attorney-General,2 and are as

follows:3

(a) Pleaded facts, whether or not admitted, are assumed to be true. This does not extend to pleaded allegations which are entirely speculative and without foundation.

(b) The cause of action must be clearly untenable. It is inappropriate to strike out a claim summarily if the Court cannot be certain that it cannot succeed.

(c) The jurisdiction is to be exercised sparingly and only in clear cases.

(d) The jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument.

(e) The Court should be particularly slow to strike out a claim in any developing area of the law, especially where the law is confused or

_developing.

1 _{Attorney-General v Prince & Gardner [1998] 1 NZLR 262 (CA) at 267.}

2 _{Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].}

3 McGechan on Procedure (online looseleaf ed, Brookers) at [HR 15.1.02(1)].

[8] With respect to the principle that pleaded facts are assumed to be true on an application to strike out, the Court of Appeal in Attorney-General v McVeagh said:4

... there may be a case where an essential factual allegation is so demonstrably contrary to indisputable fact that the matter ought not to be allowed to proceed further.

[9] Given the view that I take of this matter, it is unnecessary for me to refer to the circumstances in which a proceeding is considered to be frivolous or vexatious or otherwise an abuse of process.

No reasonably arguable case

[10] The Commissioner submits that the statement of claim discloses no reasonably arguable case. In reaching a decision on whether the Commissioner is correct, I have taken into account the documents to which I have been referred; the relevant provisions of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (“Act”) as they stood in December 2009 when the complaint was

made;5 and the authorities to which the parties have referred me.

[11] This Court has considered the functions and jurisdiction of the Commissioner in other decisions, including Wilson v Attorney-General and Siemer v Judicial Conduct Commissioner.6 Given that, it is unnecessary for me to do more than refer to provisions of the Act which are relevant to the application to strike out, namely ss 8, 15 and 16.

[12] Section 8 is relevant because it goes to the jurisdiction of the Commissioner and, importantly, the matters that fall outside that jurisdiction, as to which see s 8(2) in particular. Section 8 reads as follows:

8 Functions and powers

_{(1) The functions of the Commissioner are —}

4 _{Attorney-General v McVeagh [1995] 1 NZLR 558 (CA) at 566.}

5 _{Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, s 36.}

6 Wilson v Attorney-General [2011] 1 NZLR 399 (HC); and Siemer v Judicial Conduct Commissioner

[2012] NZHC 1481.

(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.

(3) The Commissioner has all the powers necessary for carrying out his or her functions.

[13] Mr Siemer’s letters were a complaint for the purposes of the Act.7 Section 15 of the Act sets out the action required of the Commissioner on receipt of a complaint. The relevant parts of s 15, as they stood at the time, read as follows:

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) the subject matter of the complaint, if substantiated, could warrant consideration of the removal of the Judge from office; or

(b) there are any grounds for dismissing the complaint under section 16(1).

...

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

(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).

7 Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, s 5.

[14] Section 16 required, and still requires, the Commissioner to dismiss a complaint in the circumstances set out in that provision. The parts of s 16 that are relevant in this case are as follows:

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

...

(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

...

(i) he or she has previously considered the subject matter of the complaint, and there are no grounds to justify taking any steps under section 17 or section 18.

[15] Section 17 and 18 concern the referral of a complaint to the Head of Bench or the recommendation that a judicial panel be appointed. Neither provision is relevant in this instance.

Background

[16] I have taken the background to this matter from the bundle of documents that the parties provided to me. The bundle included the judgments referred to below and the correspondence between Mr Siemer and the Commissioner which has given rise to the proceeding.

[17] On 2 June 2009 Winkelmann J heard an application by the Solicitor-General to strike out proceedings that Mr Siemer had commenced against several parties, including the Solicitor-General, the Attorney-General, the Commissioner and the Chief Justice. That application to strike out, although made by the Solicitor-General,

followed a direction by another Judge that the Solicitor-General should act to ensure that the interests of the Attorney-General, the Commissioner and the Chief Justice were protected, in accordance with the Solicitor-General’s obligations.

[18] Winkelmann J reserved her decision on the application, ultimately delivering that decision on 30 November 2009, as to which see [24] below.

[19] In the intervening period, events involving Mr Siemer occurred in a separate matter.

[20] On 8 September 2009 Winkelmann J issued a judgment in the criminal prosecution of the “Urewera” accused. The Judge’s decision in that matter was subject to a suppression order.8

[21] Subsequently it came to the Judge’s attention that the suppression order might have been breached. Mr Siemer had published details of the judgment on his website and at least one other person appeared to be circulating the judgment. On

18 September 2009 the Judge issued a minute advising that she was referring both matters to the Solicitor-General for immediate action, with a request that all possible action be taken to remove the judgment and its content from public circulation.

[22] The Solicitor-General commenced civil proceedings against Mr Siemer and applied for an injunction requiring Mr Siemer to remove the offending material from his website. Winkelmann J granted the application on 9 October 2009.9

Winkelmann J’s judgment records that Mr Siemer had filed a notice of opposition but had not appeared, instead seeking an adjournment.

[23] Subsequently, the Solicitor-General issued contempt proceedings against

Mr Siemer, alleging that Mr Siemer had failed to comply with the injunction. Ultimately, those proceedings were resolved by agreement, with Mr Siemer

8 That judgment was subsequently released as: R v Bailey HC Auckland CRI-2007-085-7842,

_{7 October 2009.}

9 Solicitor-General v Siemer HC Auckland CIV-2009-404-6243, 9 October 2009.

undertaking that he would take certain steps and the Solicitor-General agreeing to discontinue the proceedings.10

[24] Winkelmann J delivered her judgment on the application to strike out on

30 November 2009 (“strike out judgment”).11 The Judge was satisfied that the claim could not succeed and that the proceedings were an abuse of process as they were an attempt to re-litigate proceedings, and she struck them out accordingly.

Letter of 4 December 2009

[25] The essence of Mr Siemer’s first letter of complaint to the Commissioner was

that:

(a) Winkelmann J had granted the application to strike out without identifying any fatal flaw or any flaw that could not be corrected by better particulars or amendment.

(b) Winkelmann J had a conflict of interest. This conflict was said to arise because the Judge had granted an ex-parte injunction against Mr Siemer in April 2005 and because the Solicitor-General had “commenced prosecution against [Mr Siemer] in a de facto capacity for Winkelmann J” whilst the Judge was deliberating on the application to strike out. In support of this allegation, Mr Siemer referred to the events set out in [21] to [23] above.

(c) Given the existence of a conflict of interest “and almost certain bias”, the Judge was required to recuse herself before delivering the strike out judgment but had failed to do so.

[26] Mr Siemer’s reference to the ex-parte injunction in April 2005 is a reference to an injunction that Winkelmann J had granted in proceedings that Mr Michael Stiassny had brought against Mr Siemer. Winkelmann J’s strike out

judgment records that Mr Siemer had referred to that injunction in the statement of claim that she was considering; that because of that she raised the matter before commencing the hearing of the strike out application and that neither counsel objected to her hearing the application. Accordingly, whatever view Mr Siemer might have expressed later, he did not object to Winkelmann J hearing the application to strike out as of 30 June 2009.

[27] Mr Siemer appealed to the Court of Appeal against the strike out judgment. That appeal was heard in late October 2010. One of the grounds that Mr Siemer raised on appeal was that Winkelmann J had become subject to a conflict of interest after hearing the application to strike out but prior to delivering judgment. The fact that this point was relied on is relevant in the context of the present application.

[28] The Court of Appeal delivered its judgment in February 2011.12 It considered each cause of action and dismissed the appeal, subject to stating that Mr and Mrs Siemer were entitled to pursue a distinct matter arising from a search of their home. Again it is relevant to the Commissioner’s application that the Court of Appeal said they saw “nothing in Mr Siemer’s conflict point”.

[29] Mr Siemer sought recall of the Court of Appeal judgment. The Court of Appeal refused that application on 11 April 2011,13 saying that the application was “effectively an attempt to re-argue” the appeal.

[30] Mr Siemer sought leave to appeal to the Supreme Court. On 20 April 2011 the Supreme Court refused leave to appeal, saying that it refused leave because the decision of the Court of the Appeal was “undoubtedly correct in all its aspects”.14

[31] Mr Siemer then applied to the Supreme Court for recall of the judgment refusing leave and this too was declined on 6 May 2011.15

12 _{Siemer v Stiassny [2011] NZCA 1.}

13 _{Siemer v Stiassny [2011] NZCA 144.}

14 _{Siemer v Stiassny [2011] NZSC 43.}

15 Siemer v Stiassny SC20/2011, 6 May 2011.

[32] Mr Siemer, or counsel on his behalf, made a further application to the Supreme Court on 3 November 2011, seeking that the Supreme Court give fuller reasons for its decisions. On 9 November 2011 the Court declined to take any further step, saying that it had given full and adequate reasons for refusing leave by referring to the reasons the Court of Appeal had given for dismissing the appeal.16

Letter of 4 November 2011

[33] The gist of Mr Siemer’s second letter to the Commissioner was the same as the first. For the sake of completeness, I mention that Mr Siemer took issue with the manner in which the Court of Appeal had described his submission on the alleged conflict. The Court of Appeal referred to the submission as being that the conflict had arisen because Winkelmann J had “varied” an order which she had made in other proceedings involving Mr Siemer and the Solicitor-General.

[34] I do not know how the matter was put to the Court of Appeal but regardless it is clear the Court of Appeal was aware that Mr Siemer alleged that a conflict of arisen had arisen prior to delivery of judgment due to the suppression matter.

Dismissal

[35] The Commissioner dismissed the complaint by letters dated 2 December

2011 and 9 February 2012.

[36] The first of these letters was three pages long and was a response to Mr Siemer’s letter of 4 December 2009. The Commissioner said that he had deferred dealing with the complaint until the judicial proceedings arising from the strike out judgment had concluded. The Commissioner may defer dealing with a complaint in those circumstances.17

[37] In response to the matter referred to in [25](a) above the Commissioner stated that Mr Siemer sought to challenge the legality or correctness of the strike out

judgment, those matters being outside his jurisdiction. There can be no dispute that any such challenge does fall outside the Commissioner’s jurisdiction and that the Commissioner must dismiss any such complaint.18

[38] In response to the matters referred to in [25](b) and [25](c) above the Commissioner reviewed each event to which Mr Siemer had referred him. These included the injunction granted in April 2005, the hearing of and judgment on the strike out application in June and November 2009, the events to which I have referred in September and October 2009, the appeal to the Court of Appeal and the seeking of leave in the Supreme Court. The Commissioner said that he saw no basis to suggest any conflict of interest or misconduct on the part of the Judge. The Commissioner also said that Mr Siemer had “ventilated [his] concerns regarding the alleged conflict of interest at every level of the Court system and [had] been unsuccessful at every level”, that he considered Mr Siemer was asking him to consider the legality or correctness of judicial decisions and that he was required to dismiss any such complaint. The Commissioner dismissed the complaint accordingly.

[39] The Commissioner’s letter of 9 February 2012 was a response to Mr Siemer’s letter of 4 November 2011. The Commissioner said that he took the view that the second letter was a restatement of matters in the 4 December 2009 letter. The Commissioner dismissed the complaint in the second letter pursuant to s 16(1)(i) of the Act.

[40] Mr Siemer then commenced these proceedings and the Commissioner made this application to strike out.

Preliminary points

[41] There are two preliminary points that I address at the outset.

[42] First, counsel for Mr Siemer submitted that it was improper for the

_{Commissioner to make this application to strike out. Counsel submitted that in}

18 See, for instance, Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, ss 8(2) and

16(1)(f).

proceedings for review, the appropriate course for a party such as the Commissioner is to abide the decision of the Court. I am satisfied that no issue arises as to the propriety of the Commissioner making this application, for the same reasons that Toogood J gave in Siemer v Judicial Conduct Commissioner.19

[43] Secondly, counsel for Mr Siemer was particularly critical of the fact that the Commissioner had brought this application when he had not filed a statement of defence and was out of time in which to do so.

[44] There is nothing in this point. An application to strike out may be made at any time. It is a matter for the Commissioner if he chooses to make an application prior to filing a statement of defence.

[45] I turn now to consider the submissions that the parties made as to the grounds of the application to strike out.

First ground of review

[46] The first pleaded ground of review is:20

DISMISSAL IS BASED UPON AN ERROR OF LAW

15.0 The dismissal does not meet the statutory requirement of the Act governing the first defendant’s official duties, in that, it violates the first defendant’s clear statutory duty to expose judicial conflict of interest, and not cover up the conflict of interest as he did in the dismissal.

[47] I accept the Commissioner’s submission that this cause of action does not identify any particular error of law. The pleading also misconstrues the Act. The Commissioner’s duties are as set out in the Act, and they are not as pleaded in this paragraph of the statement of claim. I do not consider this ground of review to be reasonably arguable.

Second ground of review

[48] The second pleaded ground of review is that the Commissioner’s actions

constituted a breach of natural justice.

[49] Mr Siemer alleges that, at least in part, the Commissioner dismissed the complaint because he, the Commissioner, considered that Mr Siemer had “ventilated [his] concerns regarding [the] alleged conflict of interest at every level of the Court system”.

[50] In his pleading, Mr Siemer alleges that no court had properly addressed the alleged conflict and, because of that, it was a breach of Mr Siemer’s right to natural justice for the Commissioner to dismiss the complaint on this ground.

[51] I accept that Mr Siemer considers that his submission, to the effect that Winkelmann J was subject to a conflict of interest, warranted a fuller response from the Court of Appeal than it received.

[52] Despite that, I do not consider it reasonably arguable that the Commissioner breached Mr Siemer’s rights to natural justice in taking into account that Mr Siemer had put the point in issue and the Court of Appeal and the Supreme Court had addressed it. In seeking to pursue the complaint Mr Siemer was mounting a challenge to the Court of Appeal’s decision on the point, a matter outside the Commissioner’s jurisdiction.

Third ground of review

[53] The third ground of review is an alleged failure to take into account relevant considerations.

[54] In his statement of claim Mr Siemer pleads that the Commissioner failed to directly or properly address the (alleged) conflict of interest that the Judge had in referring the breach of suppression to the Solicitor-General and in then delivering the strike out judgment, granting the Solicitor-General’s application.

[55] Counsel for the Commissioner submits that it is apparent from the letter of

2 December 2011 that the Commissioner took into account the matters on which

Mr Siemer relied.

[56] I accept that submission. In his letter of 2 December 2011 the Commissioner discussed each event between June and November 2009 to which Mr Siemer had referred. I do not consider it reasonably arguable that the Commissioner did not take these matters into account.

Fourth ground of review

[57] The fourth ground of review is that the Commissioner’s decision was based

upon irrelevant considerations.

[58] In his statement of claim Mr Siemer alleges that in dismissing the complaint the Commissioner took into account two irrelevancies. The first was that the Commissioner saw no evidence of bias or misconduct in the Judge having referred the breach of the suppression orders to the Solicitor-General. Mr Siemer alleges that this lack of evidence was irrelevant because the issue raised by the complaint was the conflict of interest and apparent bias that flowed from the alleged conflict.

[59] The second irrelevant matter is said to be the Solicitor-General’s reference to s 16(1)(f) of the Act, that is the provision which requires the Commissioner to dismiss a complaint that is about a judicial decision subject to a right of appeal. Mr Siemer alleges that this was irrelevant because Winkelmann J’s alleged conflict of interest was not a “judicial decision”.

[60] I do not consider it reasonably arguable that a lack of evidence as to bias or misconduct was irrelevant, even if not determinative. Regardless, from the letter of

2 December 2011 it is apparent that the Commissioner understood the complaint to be one of the existence of a “conflict of interest and apparent bias”.21 The Commissioner described the complaint in this way in the opening paragraph and in [11(e)] of his letter of 2 December 2011.

[61] As to the second factor, Mr Siemer was seeking to pursue a complaint as to a conflict of interest that he had already put in issue before the Court of Appeal, whose judgment he in turn had sought to appeal to the Supreme Court. In those circumstances I do not consider it reasonably arguable that s 16(1)(f) was irrelevant. It was mandatory.

Fifth ground of review

[62] The fifth ground of review is pleaded as follows:22

23.0 THE FIRST DEFENDANT’S DISMISSAL IS BASED UPON

PROCEDURAL IMPROPRIETY

23.1 The dismissal cannot be legally reconciled with the approach of the first defendant in respect of a 2009 investigation and

2010 decision into a conflict of interest by former Justice Bill Wilson, which resulted in a recommendation to the Attorney-General to convene a judicial conduct panel.

[63] I accept counsel for the Commissioner’s submission that this cause of action is not reasonably arguable. That is because the Commissioner must consider each complaint and take one of the steps referred to in s 15(5) of the Act. What the Commissioner has or has not done in respect of another complaint is irrelevant.

Frivolous, vexatious or otherwise an abuse

[64] Counsel for the Commissioner submitted that the current proceeding was clearly intended to achieve an outcome inconsistent with the Court of Appeal’s decision. As such, it constituted a collateral attack and an abuse of process.

[65] It is not necessary for me to determine this aspect of the application, given that I have reached the view that none of the causes of action is reasonably arguable,

Result

[66] For the reasons given, I do not consider that the statement of claim discloses any reasonably arguable cause of action. The nature of the deficiencies in the pleading are such that they cannot be cured by amendment. Accordingly, I make an order in terms of paragraph 1.1 of the Commissioner’s application to strike out dated

14 February 2012.

[67] The parties may file submissions on the matter of costs if they wish.

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

M Peters J