Siemer v Judicial Conduct Commissioner [2013] NZHC 1655 (2 July 2013)

Last Updated: 2 November 2013

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-2419

CIV-2012-485-2546 [2013] NZHC 1655

UNDER the Judicature Amendment Act 1972

IN THE MATTER OF an application for Judicial Review

BETWEEN VINCENT ROSS SIEMER Plaintiff

AND JUDICIAL CONDUCT COMMISSIONER

First Defendant

OTHERS

Second to Sixth Defendants

Hearing: 26 June 2013

Counsel: No appearance for Plaintiff

L Theron for First Defendant

Second to Sixth Defendants abide

Judgment: 2 July 2013

_{JUDGMENT OF WILLIAMS J}

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 4.00pm on the 2^nd July 2013.

[1] In these two proceedings, Mr Siemer seeks judicial review of a decision by the Judicial Conduct Commissioner.

[2] This matter has some history. Much of it is set out in the judgment of

Toogood J in Siemer v Judicial Conduct Commissioner¹ from paragraphs [4] to [14]. The essence is that Mr Siemer was very unhappy at the way the Supreme Court had

¹ _{Siemer v Judicial Conduct Commissioner [2012] NZHC 1481.}

SIEMER v JUDICIAL CONDUCT COMMISSIONER [2013] NZHC 1655 [2 July 2013]

dealt with an appeal he had brought to that court, and he subsequently made two complaints to the Judicial Conduct Commissioner.

[3] The Commissioner found that the complaints raised matters that were outside his jurisdiction and dismissed them. Mr Siemer then sought judicial review and the merits of Mr Siemer’s application were considered by Toogood J in his decision granting summary judgment to the Commissioner.

[4] Mr Siemer appealed against that decision to the Court of Appeal and the Registrar in that court fixed security for costs at $5,880. Mr Siemer then applied to review the Registrar’s decision and this application was dismissed by Wild J.²

Mr Siemer then sought leave to appeal Wild J’s judgment to the Supreme Court.³

Leave was denied. Mr Siemer now brings fresh proceedings by way of judicial review in respect of the same decision of the Commissioner. I refer to these fresh proceedings as proceedings 2419 and 2546 respectively. This distinguishes them from the proceeding that was the subject of Toogood J’s judgment. I refer to this as proceeding 646. Counsel for the Commissioner argues that Mr Siemer simply seeks to re-litigate the issues decided by Toogood J and the proceedings should be struck out accordingly.

[5] Mr Siemer did not appear to contest the Commissioner’s strike-out application, but he filed a memorandum. His response to the substantive challenge levelled by the Commissioner was in these terms:

The plaintiff has provided solid grounds for two straightforward and simply pleaded Judicial Reviews. These grounds are evidentially supported and this evidence is not only uncontested – it is incontrovertible. It includes a clear case of the first defendant admitting he did not conduct a preliminary examination of the plaintiff’s complaint when the legislation requires him to do so in every case. The first defendant claimed in his dismissal of this complaint, “I have reached the view that I am not entitled to embark upon (a preliminary examination).”

In short, the first defendant, in exercising his statutory authority to dismiss a complaint, has claimed a statute which requires him to conduct a preliminary examination of every complaint has conversely barred from conducting a

² _{Siemer v Judicial Conduct Commissioner CA422/2012, 5 September 2012.}

³ Siemer v Judicial Conduct Commissioner [2012] NZSC 92, Chambers and Glazebrook JJ

dismissed leave.

preliminary examination in respect to the plaintiff’s complaint. (emphasis in

original)

[6] The single ground relied upon in the statement of claim in proceeding 2419 is set out in paragraph 11 as follows:

The first defendant engaged in procedural impropriety by dismissing the complaints without first conducting a preliminary examination as he must do under s 15 of the Act.

[7] This then is the ground challenging specifically the Commissioner’s approach to his duty to complete a preliminary examination. The same ground is contained in paragraphs 17 and 28 of the statement of claim in proceeding 646. The preliminary investigation issue was the subject of extensive discussion by Toogood J in his judgment. His Honour took the following view:⁴

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).

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.

[8] The statement of claim in proceeding 2546 has a different basis. It relates to the correct interpretation of s 8(2) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004. That subsection excludes from the purview of the Commissioner, any attack on the legality or correctness of any judicial decision. It does so in these terms:

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 proceeding.

⁴ Siemer v Judicial Conduct Commissioner [2012] NZHC 1481 at [49]- [50].

[9] Paragraph 10 of the statement of claim in 2546 provides simply:

The powers interpreted by the first defendant are different from what Parliament intended by the Act – as well as what the Supreme Court has since seemingly confirmed.

[10] And at paragraph 14:

The first defendant’s interpretation at s 8(2) makes a mockery of his statutory oversight role to facilitate judicial accountability to laws which expressly constrain their conduct, given the self-evident evidence the remaining defendants’ ability to dismiss the plaintiff’s appeal – as they did – solely relied on their violation of New Zealand law.

[11] This matter is addressed in the statement of claim in 646 (leading to the

Toogood J judgment) in this way:

Parliament did not intend the first defendant to use 8(2) (sic) of the Acts to avoid investigation of complaints which detailed misconduct in judicial decisions which:

14.1 perverted the course of justice, or

14.2 were without jurisdiction, or

14.3 were patently false in fact and where the judicial officers refused, despite opportunity, to correct the misrepresentation of fact.

[12] Toogood J addressed this ground as raised in the 646 proceeding in the following way:⁵

In order to be satisfied that there was sufficient substance to the complaints to warrant [appointing a judicial conduct panel], the Commissioner would necessarily have to challenge or call into question the legality or correctness of the principal judgment.

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.

[13] It is clear therefore that the individual grounds advanced in the proceedings

2419 and 2546 were all advanced initially in proceeding 646 and addressed squarely by Toogood J in his dismissal of that claim. To allow this same dispute to begin

_{afresh in a second round of proceedings would be to permit an abuse of process. In}

⁵ Siemer v Judicial Conduct Commissioner, above n 4, at [45]-[46]. Note also the discussion at

[31]-[32].

short, in these proceedings Mr Siemer is trying to do again what he was told he could not do by Winkelmann J in Siemer v Stiassny,⁶ and the Court of Appeal on appeal from that decision.⁷ That is to re-litigate a matter that has already been the subject of judicial consideration and judgment.

[14] Finally, in the context of the strike-out application, Mr Siemer complained about the continued involvement of Mr Goddard QC. He said:

Specifically Mr Goddard is actively engaged in a material deception of evidence in these judicial reviews because he is party to knowledge of the first defendant has materially changed his approach to now conduct preliminary investigations in every complaint – something which was expressly denied to the plaintiff. (sic)

[15] That matter too has been the subject of judicial determination. On 30 March

2013 Dobson J dismissed Mr Siemer’s application to disqualify Mr Goddard and to refer Mr Goddard and the Commissioner to the Law Society. The Goddard issue too, it seems, is now being re-litigated by Mr Siemer.

[16] That leaves the question of an appropriate level of costs. Solicitors for the Commissioner warned Mr Siemer by letter of 20 November 2012 that any attempt to re-litigate the Toogood J judgment through the issue of fresh proceedings was likely to be struck out as an abuse of process. The letter warned that solicitor/client costs would be sought by the Commissioner if, despite this warning, Mr Siemer pressed ahead. Mr Siemer did not heed this warning. It is in order therefore, indeed it is necessary, to award indemnity costs accordingly. This is the approach the Court of

Appeal took in Siemer v Stiassny.⁸ It is plainly the correct approach for me in this

case.

[17] The proceedings in 2419 and 2546 are struck out accordingly and Mr Siemer is ordered to pay costs calculated on an indemnity basis together with the usual

_{disbursements.}

_{Williams J}

⁶ _{Siemer v Stiassny HC Auckland CIV-2008-404-6822, 30 November 2009.}

⁷ _{Siemer v Stiassny [2011] NZCA 1.}

⁸ Siemer v Stiassny [2011] NZCA 466 at [8].