Attorney-General v Siemer [2014] NZHC 859 (30 April 2014)

Last Updated: 30 April 2014

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-404-008 [2014] NZHC 859

BETWEEN THE ATTORNEY-GENERAL Applicant

AND VINCENT ROSS SIEMER Respondent

Hearing: 10-12 March 2014

Counsel: A M Powell for the Applicant

A J Ellis & G K Edgeler for the Respondent

Judgment: 30 April 2014

_{JUDGMENT OF RONALD YOUNG AND BROWN JJ}

Solicitors: Crown Law, Wellington

Marshall, Bird & Curtis, Auckland

_{Counsel: T Ellis, Wellington}

ATTORNEY-GENERAL v SIEMER [2014] NZHC 859 [30 April 2014]

Introduction

[1] In this proceeding the Attorney-General seeks orders under s 88B of the

Judicature Act 1908 that:

A. No civil proceeding shall, without leave of this Honourable Court, be instituted by Vincent Ross Siemer himself and/or by his agent in any court; and

B. None of the civil proceedings so far instituted by Vincent Ross Siemer in any court shall be continued by him and/or his agent without such leave.

[2] Section 88B relevantly provides:

88B Restriction on institution of vexatious actions

(1) If, on an application made by the Attorney-General under this section, the High Court is satisfied that any person has persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior Court, and whether against the same person or against different persons, the Court may, after hearing that person or giving him an opportunity of being heard, order that no civil proceeding or no civil proceeding against any particular person or persons shall without the leave of the High Court or a Judge thereof be instituted by him in any Court and that any civil proceeding instituted by him in any Court before the making of the order shall not be continued by him without such leave.

...

Summary of parties’ cases

The Attorney-General’s case

[3] The Attorney-General’s case is that from 2003 through to the present time Mr Siemer has conducted a campaign of litigation almost entirely derived from a dispute that arose in 2000. The dispute is between Mr Siemer and a receiver who was appointed to a company in which Mr Siemer and his wife had made an investment.

[4] The litigation has grown almost exponentially and on a scale not previously seen in New Zealand to include claims against the receiver and his company, other lawyers, the Solicitor-General, the Attorney-General, judges who heard and determined the cases brought by Mr Siemer or by the receiver against Mr Siemer, and the Judicial Conduct Commissioner.

[5] The principal, but not the sole, reason why those proceedings are said to be vexatious is that Mr Siemer has used them to challenge the outcome of previous court cases in which he has been unsuccessful.

[6] The second amended statement of claim refers to 19 distinct legal proceedings instituted by Mr Siemer. In reliance on the principles set out in Brogden v Attorney-General¹ the Attorney-General alleges that those 19 proceedings constitute vexatious proceedings.²

[7] The Attorney-General’s evidence comprised court documents from each of the proceedings which were contended to be vexatious: the pleadings, memoranda, submissions of Mr Siemer and judgments in those proceedings. No witness was called by the applicant.

Mr Siemer’s case

[8] While several of the factual allegations are conveniently admitted in the statement of defence dated 20 May 2013, the contention that the legal proceedings were vexatiously instituted is resisted on several grounds. Mr Siemer first made a number of procedural and standing objections. He says that the applicant’s document-based case is deficient and unfairly presented, and that for constitutional reasons it is inappropriate that the application be brought by the Attorney-General. He also objected to the persons who currently hold the offices of Attorney-General

_{and Solicitor-General bringing this application.}

¹ _{Brogden v Attorney-General [2001] NZCA 208; [2001] NZAR 809 (CA).}

² Twenty proceedings are particularised in the second amended statement of claim but the Attorney-General abandoned the contention that the habeas corpus application (being the seventh proceeding referred to) was a vexatious proceeding.

[9] Proceeding from the footing that the Court of Appeal’s approach in Brogden³ was either obiter or clearly wrong, Mr Siemer contended that none of the relevant proceedings were vexatiously “instituted”. If they were, however, then they were instituted “with reasonable cause”. In particular Mr Siemer contends that it was necessary to exhaust his domestic remedies as a precondition to his pursuit of complaints in international fora and that such exhaustion of domestic remedies constitutes “reasonable cause” in the context of s 88B.

[10] Mr Siemer read to the Court a substantial brief of evidence comprising some

246 paragraphs which addressed the circumstances of each of the allegedly vexatious proceedings and his motivations for bringing them. He was not cross-examined. A short brief of evidence from Mrs Jane Siemer (Mr Siemer’s wife) was received by consent. She did not give evidence in person.

[11] The focus of the evidence was the 19 proceedings in question. We intend to focus our decision on those proceedings. Nevertheless, to fully comprehend the context of the particular proceedings in issue, it is necessary to refer first to previous litigation in which Mr Siemer was involved.

Background litigation

[12] In 2000 Mr and Mrs Siemer entered into a commercial agreement with a company called Waterford Holdings Ltd (“Waterford”), the purpose of which was to facilitate an investment by the Siemers in a business that Waterford was seeking to develop. The agreement would put Paragon Oil Systems Ltd (“Paragon”) in control of the business and allocate shareholdings in that company to the Siemers on the one hand and to the Waterford interests on the other.

[13] The relationship broke down due to oppressive conduct by the Waterford interests and the proceeding Siemer v Paragon Oil Systems Ltd was commenced.⁴ It appeared to the Siemers that Paragon and their significant financial investment in it were imperilled by the actions of the Waterford interests. On the advice of the late

_{Robert Fardell QC the Siemers asked the High Court to appoint a receiver to}

³ _{See below at [52].}

⁴ Siemer v Paragon Oil Systems Ltd (2001) 9 NZCLC 262,693 (HC).

Paragon. On Mr Fardell’s recommendation Mr Michael Stiassny of Ferrier

Hodgson, Auckland, was appointed as receiver.

[14] In one of his two reports to the Court Mr Stiassny recommended that Paragon should cease trading pending the outcome of the proceeding in Siemer v Paragon Oil Systems Ltd. Following the ruling of Hammond J in that proceeding, the shares in Paragon were transferred to the Siemers and the receivership was discharged.

[15] However differences arose between Mr Siemer and Paragon on the one hand and Mr Stiassny and his company on the other concerning the conduct of the receivership. Although an agreement was entered into on 9 August 2001 which ostensibly was a settlement of those differences, during 2002 to 2005 Mr Siemer made a series of complaints to professional organisations to which Mr Stiassny belonged.

[16] Mr Siemer also erected a billboard in Hobson Street, Auckland, directing attention to a website on which Mr Siemer had placed information which he claimed demonstrated misconduct by Mr Stiassny and his company. Mr Stiassny and Ferrier Hodgson took proceedings against Mr Siemer in defamation and alleging a breach of the settlement agreement of 9 August 2001.⁵ An interim injunction was granted by Ellen France J requiring the billboard and website to be taken down and restraining Mr Siemer from any similar conduct pending resolution of the substantive proceedings. Mr Siemer’s appeal to the Court of Appeal against the decision of Ellen France J was dismissed on 13 December 2005.⁶

[17] The Attorney-General’s submissions note that between 2005 and 2013

Stiassny v Siemer has been the subject of 22 judgments of the High Court, five of the Court of Appeal and four of the Supreme Court. However in those proceedings Mr Siemer was the defendant and none of those judgments count against him for the

_{purposes of the current application under s 88B.}

⁵ _{Ferrier Hodgson v Siemer HC Auckland CIV-2005-404-1808 [Stiassny v Siemer].}

⁶ Siemer v Ferrier Hodgson CA87/05, 13 December 2005.

[18] It was the Attorney-General’s submission that Stiassny v Siemer appears to have been the catalyst for the subsequent litigation to which the present application is directed. In that regard our attention was drawn to two particular aspects of the litigation. First, Mr Siemer suffered a number of interlocutory defeats including his imprisonment for contempt and his being debarred from defending the proceeding. The Attorney-General suggests that the documents which Mr Siemer has filed in that proceeding show that he attributes his setbacks in the course of that litigation to dishonesty on the part of the Stiassny interests and bias and incompetence on the part of judges and officers of the courts.

[19] The second point of significance is that Mr Siemer continued to maintain his expression of grievance against Mr Stiassny. In his capacity as a shareholder in Vector Limited, a public company of which Mr Stiassny was a director, Mr Siemer sought to attend the annual general meeting on 19 October 2007 but was not permitted to enter. Mr Siemer subsequently issued proceedings against two security guards (who removed him from the building where the meeting was taking place), their employer, the lawyer advising the Vector board (Mr Michael Heron) and his law firm. When ordered to provide security for costs in those proceedings Mr Siemer pursued challenges to that requirement, the pursuit of which the Attorney- General categorised as disproportionate.

[20] Further proceedings followed in the form of prosecutions of Mr Siemer for contempt by the Solicitor-General. The first prosecution was based on evidence that Mr Siemer had continued to publish information on the internet contrary to the injunction issued by Ellen France J. A further contempt proceeding, brought by the Solicitor-General arising from Mr Siemer’s internet publication of extracts of a judgment of the High Court in R v Bailey (the subject of a suppression order), was discontinued when the content of the website was altered to remove the offending

_content. ⁷

⁷ R v Bailey HC Auckland CRI-2007-085-7842, 9 December 2010.

[21] The Solicitor-General then obtained a costs order against Mr Siemer relating to the second contempt proceeding. Subsequently, Mr Siemer commenced various proceedings which are comprised in the alleged 19 vexatious proceedings which form the basis of the current application.

[22] In the Attorney-General’s analysis, all of Mr Siemer’s alleged vexatious litigation can ultimately be traced to two sources: one major and one minor. The major source was Mr Siemer’s profound dissatisfaction with the conduct of Mr Stiassny, and actions taken by Mr Stiassny to restrain Mr Siemer from seeking to make his dissatisfaction public. The minor source was Mr Siemer’s grievance with the Solicitor-General for bringing contempt proceedings against him in relation to the public disclosure of information relevant to the prosecution of the accused

persons in R v Bailey.⁸ In his brief of evidence Mr Siemer stated that he had little

disagreement with that analysis of the Attorney-General.

Points of objection by Mr Siemer

[23] Prior to the Attorney-General introducing his application Mr Ellis addressed some preliminary points and objections.

[24] The first was directed to the form and content of the evidence upon which the

Attorney-General relies, namely the tender (pursuant to s 130 of the Evidence Act

2006) of a substantial number of court documents from the various proceedings to which the Attorney-General refers in support of his application.

Objection to the form of the Attorney-General’s evidence

[25] There were two limbs to this objection. The first limb invoked s 50(1) of the Evidence Act 2006 and relied on dicta of Brewer J in Dorbu v Lawyers and Conveyancers’ Disciplinary Tribunal.⁹ The submission was that the finding of a judge in a civil proceeding that the proceeding was vexatious is not admissible to show that the particular proceeding was in fact vexatious when instituted. The

_{alleged vexatious litigant is entitled to have the court approach the question, whether}

⁸ _{Above n 7.}

⁹ Dorbu v Lawyers and Conveyancers Disciplinary Tribunal HC Auckland CIV-2009-404-7381,

11 May 2011.

a s 88B case is made out, independently and afresh with an open mind based on the evidence called before it.

[26] With that point Mr Powell did not take issue. He accepted that a finding of fact by an earlier court does not bind a later court on that issue. However he took issue with Mr Ellis’ further proposition that, having chosen not to call any witnesses, the Attorney-General could not rely totally on documentary evidence. Mr Powell’s case is that it is open to the Court to come to its own conclusion from the documentary record that the ingredients of s 88B exist in respect of Mr Siemer.

[27] The second limb of the first objection was directed to the sufficiency of the group of documents upon which the Attorney General relied. It was Mr Siemer’s contention that the Attorney-General’s compilation amounted to cherry picking, that he was supposed to be a model litigant but that he had not provided a balanced selection of documents.

[28] Mr Powell did not accept that the obligation of the Crown as a model litigant was engaged in the manner contended by Mr Ellis. He submitted that the Attorney- General is entitled to put before the Court those documents which he considered were relevant and sufficient to demonstrate that an order under s 88B was warranted. Attention was drawn to both the directions for the completion of the bundle and the notice and objection procedure stipulated in the interlocutory judgment of Dobson J

dated 3 July 2013.¹⁰

[29] We agree with the Attorney-General’s analysis.

[30] Section 130 of the Evidence Act 2006 provides as follows:

130 Offering documents in evidence without calling witness

(l) A party may give notice in writing to every other party that the party proposes to offer a document (whether or not a public document), a copy of which is attached to the notice, as evidence in the proceeding without calling a witness to produce the document.

¹⁰ Attorney-General v Siemer [2013] NZHC 1664.

(2) A party who on receiving a notice wishes to object to the authenticity of the document to which the notice refers, or to the fact that it is to be offered in evidence without being produced by a witness, must give a notice of objection in writing to every other party.

(3) If no party objects to a proposal to offer a document as evidence without calling a witness to produce it, or if the Judge dismisses an objection to the proposal on the ground that no useful purpose would be served by requiring the party concerned to call a witness to produce the document, –

(a) the document, if otherwise admissible, may be admitted in evidence; and

(b) it will be presumed, in the absence of evidence to the contrary, that the nature, origin, and contents of the document are as shown on its face.

(4) A party must give notice of a proposal to offer a document without calling a witness to produce it–

(a) in sufficient time before the hearing to provide all the other parties with a fair opportunity to consider the proposal; or

(b) within the time, whether before or after the commencement of the hearing, that the Judge allows and subject to any conditions that the Judge imposes.

(5) A party must give notice of objection to a proposal to offer a document without calling a witness to produce it –

(a) in sufficient time before the hearing to provide all the other parties with a fair opportunity to consider the notice; or

(b) within the time, whether before or after the commencement of the hearing, that the Judge allows and subject to any conditions that the Judge imposes.

(6) The Judge may dispense with the requirement for a party to give notice under subsection (1) or (2) subject to any conditions that the Judge imposes.

(7) This section is subject to sections 131 and 132.

[31] The documents tendered by the Attorney-General as evidence in this case are documents filed in courts in the various proceedings they relate to. The procedure in s 130 enables such documents to be admitted without calling a witness to produce the document. The procedure identified in s 130 has been complied with by the Attorney-General. Notice in writing was given by the Attorney-General of the

intention to offer these documents in evidence, and no objection has been notified by

Mr Siemer.

[32] We are satisfied the documents are otherwise admissible and “may be admitted in evidence” in this case.

[33] This conclusion is subject to s 50 of the Evidence Act 2006 which provides:

50 Civil judgment as evidence in civil or criminal proceedings

(1) Evidence of a judgment or a finding of fact in a civil proceeding is not admissible in a criminal proceeding or another civil proceeding to prove the existence of a fact that was in issue in the proceeding in which the judgment was given.

(2) This section does not affect the operation of–

(a) a judgment in rem; or

(b) the law relating to res judicata or issue estoppel; or

(c) the law relating to an action on, or the enforcement of, a judgment

[34] The Attorney-General’s case relies upon the content of the documents filed in various proceedings brought by Mr Siemer. This includes a number of judgments where there are findings of fact. The Attorney-General’s case, however, does not rely upon any conclusions expressed by the judges in those cases as to the existence of any facts. The Attorney-General does not seek to use any findings of fact in those other proceedings to support these proceedings. For example, in some of those other proceedings judges have said Mr Siemer’s proceedings are vexatious. We ignore such a conclusion. It is for us to reach our independent conclusion. We are satisfied s 50 is not engaged by the case as advanced by the Attorney-General.

[35] As to Mr Siemer’s submission that it was wrong for the Attorney-General to rely exclusively on documentary evidence, we are satisfied that the fact that the Crown did not call any witnesses to give evidence in this case is not relevant to our function. The Attorney-General’s case relies upon the documents produced as evidence pursuant to s 130 of the Evidence Act 2006. Section 130 is specifically designed to permit evidence in a case without calling a person to produce the

documents. The Attorney-General therefore has produced admissible evidence on which his case will be judged. We therefore reject this challenge.

[36] The Attorney-General acknowledged that he has not produced all the documents in each of the 19 cases relevant to the s 88B application. The Attorney- General said that he had produced those documents from each case which he considered to be relevant. Prior to trial counsel for the Attorney-General invited Mr Siemer, through his counsel, to include in the documents produced as evidence any other documents that Mr Siemer considered relevant relating to these proceedings. As we understand it, no such documents were tendered.

[37] The Attorney-General is entitled to present to the Court the evidence he considers best establishes his case. If, in doing so, the evidence misleads the Court in some way, then there are likely to be consequences for the Attorney-General. If there are other relevant documents that the respondent considers detract from the Attorney-General’s case, the respondent is free to present those documents as evidence for the Court. But the “model litigant” concept does not require the Attorney-General to file evidence which the respondent considers helps his case.

[38] In this case the Attorney-General responsibly agreed to include in the common bundle any further documents identified by Mr Siemer as relevant. The Attorney-General had no other obligations in this context. We reject Mr Siemer’s submission on this issue.

The constitutional argument

[39] Mr Ellis’ second objection was that for constitutional reasons it was wrong for the Attorney-General to bring this proceeding. Following reference to a report of the Select Committee of the House of Commons addressing the case for abolition of the office of Lord Chancellor, Mr Ellis submitted that the Attorney-General is the link between the judiciary and executive government and that he both recommends the appointment and promotion of judges and has an important role in defending the judiciary from unfair public criticism. Citing R v Te Kahu Mr Ellis submitted that it is not far-fetched that the role of recommending appointments of judges and defending the judiciary would seem, in the eyes of a well-informed independent

observer, to mean that judges might favour cases brought by the Attorney-General, thus compromising the independence of the judiciary. ¹¹

[40] The contention was that there is plainly no need for the case to be “prosecuted” by the Attorney-General, and that the Solicitor-General could do so instead. Mr Ellis submitted that in this case it would be more appropriate for a Deputy Solictor-General to make the application, given that the present Solicitor- General is the defendant in one of the claims that the Attorney-General seeks to prevent Mr Siemer from pursuing.

[41] It was apparent that this particular contention¹² would apply to all s 88B applications. The simple answer to that contention is that Parliament has legislated that s 88B applications are to be brought by the Attorney-General and it is for Parliament, not for this Court, to entertain any submission that a different approach should be preferred. The Attorney-General could delegate these proceedings to be brought by the Solicitor-General, who could in turn delegate them to a Deputy. However, whether such delegation occurs is entirely for these office holders to determine.

Objections specific to the current Attorney-General and Solicitor-General

[42] In addition to the preliminary point directed to the Office of the Attorney- General, Mr Siemer raised specific objections to the persons currently holding the senior and junior law officers’ roles arising from the particular circumstances of the case.

[43] With reference to the Attorney-General there were two bases for objection. The first concerned Petition 2005/0142 of Penelope Bright and others requesting that Parliament conduct an inquiry into the committal for imprisonment of Mr Siemer for contempt of court. That petition was referred to the Justice and Electoral Committee who concluded that they were unable to consider the petition because standing

_{orders forbid committees to consider matters before the courts. The present}

¹¹ _{R v Te Kahu [2006] 1 NZLR 459 (CA).}

¹² A separate complaint specific to the present Attorney-General is addressed below.

Attorney-General, Mr Finlayson QC, was an opposition member of the Justice and

Electoral Committee at that date.

[44] The second issue arose from a report in the National Business Review (NBR) dated 31 August 2012 of comments made by the Attorney-General about the criticism by Dr Anthony Molloy QC of New Zealand’s justice system.

[45] It was Mr Siemer’s submission that the present application should have been

brought by the Deputy Solicitor-General:

...given the Attorney’s prior involvement on the Select Committee ... and his failure to understand what a vexatious litigant is as evidenced in his spat with Dr Molloy QC.

[46] With reference to the Solicitor-General it was Mr Siemer’s submission that, because the current holder of the office of Solicitor-General, Mr Heron QC, has been a defendant in proceedings brought by Mr Siemer, the Solicitor-General would be disqualified from bringing this application in place of the Attorney-General and hence the application should have been made by a Deputy Solicitor-General.

[47] First, with respect to the Attorney-General’s involvement as an opposition member of the Justice and Electoral Committee, Mr Finlayson would have had no more than one vote on the Committee. The Committee understandably ruled that it could not consider the petition while the substance of the petition was before the courts. This does not establish any form of personal bias toward Mr Siemer on behalf of the Attorney-General.

[48] Secondly, as far as the NBR article is concerned, there is nothing in what Mr Finlayson said which could have disqualified him from bringing these proceedings. The NBR article reports Mr Finlayson (referring to comments made by Dr Molloy) as saying that Dr Molloy’s comments “are the sort of rubbish one would expect of a vexatious lay litigant”. None of Mr Finlayson’s comments refer to Mr Siemer, nor could they be considered to show any unfair or inappropriate bias towards Mr Siemer.

[49] Finally, in his submissions Mr Ellis stressed that the concern about the Attorney-General was “his failure to understand what a vexatious litigant is as evidenced in his spat with Dr Molloy”. We do not see it matters whether the Attorney-General does or does not understand what a vexatious litigant is. It is the Attorney-General who makes the application and the Attorney-General who must prove it. It is the judges who decide whether it is proved. No doubt there are many occasions on which litigants submit to a judge that the other litigant does not properly understand either their case or what proof of it entails. This does not mean that the litigant is disqualified from bringing the case. We reject this ground of challenge.

The law

[50] The right of access to the courts is of fundamental constitutional importance.¹³ Indeed in two respects – the ability to challenge by judicial review decisions of tribunals or public bodies and to bring proceedings against the Crown – it is a right guaranteed by s 27 of the New Zealand Bill of Rights Act 1990 (“the NZBORA”).

[51] Consequently the jurisdiction to deprive an alleged vexatious litigant of that right is properly regarded as an “exceptional” step.¹⁴ The justification for doing so was explained by Staughton LJ in Attorney-General v Jones:¹⁵

The power to restrain someone from commencing or continuing legal proceedings is no doubt a drastic restriction of his civil rights, and is still a restriction if it is subject to the grant of leave by a High Court Judge. But there must come a time when it is right to exercise that power, for at least two reasons. First, the opponents who are harassed by the worry and expense of vexatious litigation are entitled to protection; second, the resources of the judicial system are barely sufficient to afford justice without unreasonable delay to those who have genuine grievances, and should not be squandered on those who do not.

¹³ _{Brogden v Attorney-General, above n 1, at [20].}

¹⁴ _{Harley v McDonald [2001] UKPC 18, [2002] 1 NZLR 1 at [67] per Lord Hope.}

¹⁵ Attorney-General v Jones [1990] 1 WLR 859 (CA) at 865; quoted with approval by Doogue and

Henry JJ in Attorney-General v Hill (1993) 7 PRNZ 20 (HC).

[52] The relevant principles to be applied were discussed in Brogden v Attorney- General.¹⁶ While various of those principles have been cited in subsequent decisions¹⁷ and reiterated by the Court of Appeal in Heenan v Attorney-General¹⁸ it is convenient in the present case to set out key passages from Brogden in full:

[21] Section 88A is concerned with a person who has “instituted” vexatious proceedings. Obviously, therefore, the jurisdiction to make an order under the section exists only when multiple proceedings have been commenced by the respondent. What constitutes institution of such proceedings “persistently” will not depend merely on the number of them but, just as importantly, on their character, their lack of any reasonable ground and the way in which they have been conducted. A litigant may be said to be persisting in litigating though the number of separate proceedings he or she brings is quite small if those proceedings clearly represent an attempt to re-litigate an issue already conclusively determined against that person, particularly if this is accompanied by extravagant or scandalous allegations which the litigant has no prospect of substantiating or justifying. The Court may also take into account the development of a pattern of behaviour involving a failure to accept an inability in law to further challenge decisions in respect of which the appeal process has been exhausted, or attacking a range of defendants drawn into the widening circle of litigation solely because of an association with a defendant against whom a prior proceeding has failed. The fact that one or more proceedings have been struck out does not inevitably lead to the conclusion that the litigation has been vexatious. But this may be a strong indication. We agree with the following comment of the Full Court in Attorney-General v Collier [2001] NZAR 137 (HC) at 149:

Although in many cases it may not be possible to decide whether litigation is wholly without merit until it is determined, a successful strike-out application by the defendant, at least where not based upon technical points (such as Limitation Act defences or error in the form of proceedings not known to the plaintiff) may be reliable evidence in the circumstances of vexatiousness.

[22] What is required is an appropriate assessment of the whole course of the respondent’s conduct of the litigation in question, including the manner in which and apparent purpose for which each proceeding has been conducted, including resort to the appeal process where that has been done without any realistic prospect of success. We note the adoption by the High Court in this case of the observation made in Attorney-General v Hill (1993) 7 PRNZ 20 at 22 that the concern is not with whether the proceeding was instituted vexatiously but whether it is properly described as a vexatious proceeding. Of course, if the litigant is found to have had an improper purpose in commencing proceedings, a finding that the litigation was vexatious is more likely. The test is, however, whether, overall, the various proceedings have been conducted by the litigant in a manner which properly attracts that epithet.

¹⁶ _{Above n 1.}

¹⁷ _{Attorney-General v Slavich [2013] NZHC 627.}

¹⁸ Heenan v Attorney-General [2011] NZCA 9, [2011] NZAR 200 (CA).

[53] The Attorney-General’s application was based squarely on the principles stated in Brogden. For Mr Siemer it was contended that, given the fundamental importance of access to the courts, s 88B cannot be read in the manner proposed by the Attorney-General. In particular Mr Ellis argued against the “broader assessment” contemplated in Brogden, submitting that Brogden was either obiter or clearly wrong. In his submission on its plain meaning the assessment under s 88B is limited to:

(a) the institution of vexatious proceedings and not the conduct in a vexatious manner of proceedings which were not vexatiously instituted;

(b) those proceedings in the High Court or District Court satisfying the condition in (a) but not appeals to the Court of Appeal or to the Supreme Court.

“Instituted” vexatious legal proceedings

[54] It was implicit in the Attorney-General’s inclusion of proceeding 5782 (the first in time of the alleged vexatious proceedings) as an alleged vexatious proceeding that a proceeding could be vexatious notwithstanding that at the date of commencement it had no vexatious character.

[55] It was for this reason that the Attorney-General did not contend that proceeding 5782 was vexatious at the point of commencement, which was some

18 months prior to the Stiassny v Siemer litigation. Rather, the Attorney-General pointed to a significant change in character in the proceeding at the beginning of

2005, with subsequent steps taken in that litigation serving to confirm its transformation into a vexatious proceeding. The Attorney-General contends that the documents filed in that proceeding showed a developing sense of conviction on Mr Siemer’s behalf that there had been deliberate foul play in relation to documents that might support his claim and a failure by the courts to respond appropriately to it.

[56] Noting that Mr Brogden had represented himself and pursued his appeal without the assistance of amicus curiae, Mr Ellis pointed out that Brogden was argued without consideration of the judgment of Wheeler J in Crown Solicitor for the State of Western Australia v Michael.¹⁹

[57] It was his submission that Michael made clear the high standard that needs to be reached before a proceeding can be said to have been instituted vexatiously, draws a distinction between cases that are extremely unlikely to succeed and those that are “utterly hopeless”, and distinguishes between vexatiously continuing a proceeding as distinct from vexatiously commencing one. The Court found that “instituted” in the Western Australian legislation meant the commencement rather than the continuation of the litigation.

[58] As Mr Ellis’ submissions stated:

A proper reading of Brogden so as to interpret section 88B of the Judicature Act as covering properly instituted proceedings vexatiously pursued is a step that cannot be found in the legislation, and unduly trespasses on the rights of the legislature, of which the applicant is a member. [The Attorney- General’s] remedy in seeking to expand the scope of section 88B of the Judicature Act arises in his other role, which provokes a conflict of interest.

[59] Mr Ellis drew attention to the fact that the relevant New South Wales legislation had been amended to allow for orders against vexatious litigants in respect of the conduct of litigation, so as to address the issue confronted in the Western Australian context.

[60] We note that Canadian case law discloses a similar history. Section 1(1) of the Vexatious Proceedings Act RSO 1970 c 481 contained a provision similar to s 88B which was addressed to persons who “habitually and persistently and without any reasonable ground instituted vexatious proceedings”. That section was

_{considered by the Ontario Court of Appeal in Foy v Foy (No 2).}²⁰

¹⁹ Crown Solicitor for the State of Western Australia v Michael WASC CIV 2079 of 1994, 30 July

_1998.

²⁰ Foy v Foy (No 2) (1979) 102 DLR (3d) 342 (ONCA).

[61] Subsequently s 150(1) of the Courts of Justice Act SO 1984 c 11 was introduced which provided for the making of orders prohibiting the institution of proceedings without leave where the court was satisfied that a person had persistently and without reasonable grounds:

(a) Instituted vexatious proceedings in any court; or

(b) Conducted a proceeding in any court in a vexatious manner.

[62] It was that later provision which was considered by the Ontario Court of Appeal in Mascan Corp v French²¹ and relied upon in Attorney-General v Hill for the proposition that vexatious conduct should be assessed holistically.²²

[63] We are satisfied that the observations by the Court of Appeal in Brogden were not obiter. They involve a resolution of the appropriate legal framework against which the facts are to be judged. We consider we are bound by their approach and propose to adopt their approach in this judgment. In doing so however we will take into account only those proceedings which we consider were commenced vexatiously.

The status of appeals

[64] Mr Ellis submitted that appeals to the Court of Appeal or the Supreme Court do not constitute proceedings for the purposes of s 88B. He drew attention to an article by Michael Taggart and Jenny Klosser in which they said:²³

A more difficult issue is whether or not vexatious appeals count as the institution of legal proceedings. Courts around the common law world have vacilitated on this issue. Something can be said on both sides, and judicial opinion is divided. In Wiseman, the judges took their lead from tentative dicta in the English Court of Appeal case of Re Vernazza, and held that the lodging of appeals does institute proceedings. This approach has support in Australian and some English case law, notwithstanding some misgivings in other English cases. Some courts have simply sat on the fence. As we will see later, the enactment of the New Zealand Bill of Rights Act 1990 has

²¹ _{Mascan Corp v French (1988) 49 DLR (4th) 434 (ONCA).}

²² _{Attorney-General v Hill, above n 15.}

²³ Michael Taggart and Jenny Klosser “Controlling Persistently Vexatious Litigants” in Matthew Groves (ed) Law and Government in Australia (Federation Press, Sydney, 2005) 272 at 284 (footnotes omitted).

suggested to some judges that a narrow interpretation of “institute proceedings” to mean the bringing of original actions might now be more appropriate. The issue remains unresolved, but has been addressed by legislative reform in some other jurisdictions.

[65] Mr Powell noted several recent cases in which the courts have concluded that it was not necessary to express any final view on this issue. He argued that it was also unnecessary for this Court to determine the unresolved issue of whether appeals are to be considered separate “legal proceedings” for the purposes of s 88B. The Attorney-General submitted that the manner in which appeals have been brought is relevant to the evaluation of whether the proceedings, from which they were derived, were vexatious. This is particularly so where a respondent has issued a proceeding that amounts to a collateral attack on the outcome of an appeal.

[66] He drew attention to the observation in Attorney-General v Reid:²⁴

[54] Having regard to Hansen, we consider that it is inappropriate to treat Mr Reid's appeals as 'legal proceedings' that he has 'instituted'. We are nevertheless able to take them into account in our overall assessment and will do so.

[67] We adopt the same approach concerning appeals. We will take them into account in the way identified at [22] in Brogden.

“Without reasonable ground”

[68] The Attorney-General submitted that whether a person has persistently instituted vexatious legal proceedings “without any reasonable ground” does not depend on whether the causes of action were arguable. A proceeding may contain the germ of a legitimate grievance or may disclose a cause of action or a ground for institution yet still be vexatious.²⁵ A minute examination of whether there was or was not a reasonable ground within each particular action is not required. Rather, the Court must consider the number of actions brought, their general character and

_{their result.}²⁶

²⁴ _{Attorney-General v Reid [2012] NZHC 2119, [2012] 3 NZLR 630.}

²⁵ _{Attorney-General v Heenan [2009] NZHC 1070; [2009] NZAR 763 (HC) at [22].}

²⁶ Re Chaffers (1897) 45 WR 365 (QB) cited in Attorney-General v Hill, above n 15.

[69] He also drew attention to the observations of the New Zealand Law

Commission on the matter:²⁷

[16.65] It is not clear that the requirement that proceedings must be instituted “without any reasonable ground” adds anything to the term “vexatious”, as the concept of being without any reasonable ground seems to be inherent in the latter term. Otherwise, it would be possible for a litigant to persistently institute vexatious legal proceedings with reasonable grounds. Our provisional view is that, if a provision akin to s 88B is retained, the requirement that the proceeding be instituted “without any reasonable ground” should be removed.

[70] The point was made that the Attorney-General’s application must be determined under the law as it presently stands and that reasonable grounds for instituting a proceeding preclude the exercise of the jurisdiction under s 88B.

[71] We agree that the use of the phrase “without reasonable ground” adds nothing to the requirements of s 88B. “Vexatious” is defined in the Shorter Oxford Dictionary as “instituted without sufficient grounds for winning purely to cause trouble or annoyance to the defendant”. Instituting a proceeding without grounds for winning will inevitably mean the proceedings have been instituted without reasonable grounds.

Facts relied upon by Attorney-General

[72] Nineteen proceedings²⁸ are pleaded in the second amended statement of claim as amounting to vexatious proceedings for the purposes of s 88B, seventeen in the High Court and two in the Auckland District Court. We summarise below the various proceedings in chronological sequence.

[73] We also record a summary of Mr Siemer’s comments and response on each of the proceedings. His general stance is that he is not a lawyer and consequently he made errors in some earlier proceedings. He contends that the nature of legal proceedings generally is that (in his words) a couple of poor judicial decisions often result in a convoluted and complex case. He states that he fell victim to that

_{situation and in early proceedings he named defendants and pleaded causes of action}

²⁷ _{Law Commission Review of the Judicature Act 1908 (NZLC IP29, 2012).}

²⁸ Excluding the habeas corpus proceeding: see n 2 above.

which he would not have attempted to do in the last several years. However it is his contention that in each of the proceedings on which the Attorney-General relies he had a good faith belief that his claim was capable of being properly resolved in his favour in either the domestic courts or internationally. He asserts that none of them was vexatiously filed.

[74] After each summary we give our conclusion as to whether the particular proceeding was vexatiously commenced.

V Siemer and J Siemer v K Fardell as Executrix of the estate of J Fardell, Stiassny and Ferrier Hodgson (non-parties): CIV-2003-404-5782 (“proceeding 5782”)

[75] In 2003 the Siemers and Paragon commenced proceedings alleging Mr Fardell had negligently advised them about the appointment of a receiver to Paragon, and that he had breached his fiduciary duty by failing to disclose his personal and business interests with Mr Stiassny.

[76] It is not alleged that either the statement or claim or the initial interlocutory processes were vexatious. The statement of claim was described in the Attorney- General’s submissions as a balanced and orderly series of factual allegations following a logical progression towards the assertion of causes of action against Mr Fardell who was the only named defendant.

[77] However the Attorney-General submits that a significant change in the character of the proceedings was evident from the beginning of 2005. The Attorney- General contrasted the applications made up until the end of 2004 with the memorandum filed on 10 January 2005, entitled “Memorandum Detailing Perjury, Fraud and Obstruction of Justice by the Defendant and his Solicitors”. The memorandum contains several serious allegations of dishonesty and suggested that the integrity of the judicial system itself was under threat.

[78] From that point Mr Siemer’s focus appeared to shift to both the Associate Judge and the Judge responsible for the carriage of the proceeding. In subsequent documents filed in the proceeding and in complaints to the Chief High Court Judge,

allegations were made by Mr Siemer of unequal treatment of parties, judicial ineptitude and bias.

[79] Further abusive memoranda followed with Mr Siemer claiming the Judge had attempted to aid and abet a criminal fraud by his decisions. When a leave application challenging one of the High Court decisions came before the Court of Appeal, Mr Siemer repeatedly made inappropriate comments about the presiding Judge.

[80] In the meantime Mr Fardell had died. Mr Siemer was declared bankrupt. The Official Assignee disclaimed the proceedings on Mr Siemer’s behalf. They were continued by Mrs Siemer. Mrs Siemer was ordered to pay $100,000 as security for costs. No payment or security was given and the proceedings were eventually struck out. By that stage a number of costs orders had been made against Mr and Mrs Siemer which remained unpaid.

[81] In evidence Mr Siemer stated that he could not comprehend how the Attorney-General could allege that proceeding 5782 was filed vexatiously. His evidence was that his applications for interrogatories and discovery were successful and that Mr Fardell refused to file a statement of defence until he was on the verge of being struck out. Various pre-trial matters were determined in Mr Siemer’s favour and the only reason why the case came to an end in his view was because a very substantial order for costs as security was made which could not be met. Mr Ellis made the further point that this claim had survived a strike out application and that offers for settlement by the defendant were twice made but rejected.

[82] After early 2005 Mr Siemer’s approach to this litigation changed. If an interlocutory application was unsuccessful or a defendant’s application was successful, Mr Siemer often challenged the impartiality of the Associate Judge or the Judge of the High Court. The proceedings involved a series of interlocutory skirmishes many instituted by Mr Siemer about the adequacy of discovery, answers to interlocutories and appeals on interlocutory matters. Three trial dates were given and adjourned primarily because of Mr Siemer’s dissatisfaction with compliance with interlocutory orders. Overall the impression created is that Mr Siemer did not

want the merits of the claim heard but was prepared to continuously litigate matters peripheral to the main claim. We accept, however, that this proceeding was not vexatiously instituted. Mr Siemer was entitled to sue Mr Fardell.

Paragon Services Ltd and Siemer v Ferrier Hodgson & Co Ltd: CIV-2006-404-593

(“proceeding 593”)

[83] On 26-27 July 2005 and 19-20 December 2005 Potter J heard an application in Stiassny v Siemer to have Mr Siemer committed for contempt for breaches of the interim injunction issued by Ellen France J. In a judgment dated 16 March 2006

Mr Siemer was held to be in contempt and was ordered to pay a fine of $15,000.

[84] On 10 February 2006 proceeding 593 was issued by Mr Siemer and Paragon. It alleged a cause of action against Mr Stiassny and his company for perjury in connection with an affidavit filed by Mr Stiassny in support of the application for the interim injunction. The relief sought included general and exemplary damages.

[85] The defendants applied to strike out the proceeding. Mr Siemer filed a number of memoranda relating to the application which included allegations that the solicitors for the defendants “appeared to be actively involved in the fraud committed in the High Court”. A further memorandum was abusive of the Associate Judge suggesting that Mr Siemer had communicated “at a level over Your Honour’s head”. Further memoranda followed from Mr Siemer where he referred in disparaging terms to previous decisions of the Judge and Associate Judge.

[86] In a judgment of Associate Judge Doogue dated 9 August 2006, the statement of claim was struck out for failure to show a cause of action, there being no recognisable claim at law against a witness who gives evidence to a court.

[87] Mr Siemer recognised that including perjury as a civil cause of action was misconceived. He made the point that in the intervening eight years, during which he has gained more experience in legal matters, he has not filed another claim for perjury. While he recognised that the form of the claim was deficient he contended that its factual basis remained valid and that it was not filed vexatiously. Mr Ellis made the further point that when the claim was struck out on the grounds that

Mr Stiassny had witness immunity, Mr Siemer did not challenge that outcome. In short, he neither initiated nor ran the proceeding vexatiously.

[88] This proceeding was instituted as a way of reflecting Mr Siemer’s dissatisfaction with the decisions made arising from his breach of the injunction issued by Ellen France J.

[89] The proceeding was a collateral attack on the judgment of Ellen France J and Mr Siemer’s subsequent unsuccessful appeal to the Court of Appeal. Until Mr Siemer finally acknowledged he had no prospect of success in these proceedings his approach was abusive. However, we accept that when Mr Siemer understood his cause of action could not succeed he accepted the proceeding should be struck out. We give the benefit of doubt in that proceeding to Mr Siemer. We accept the proceeding was not vexatiously instituted.

Siemer v Illingworth: CIV-2007-404-3557(“proceeding 3557”)

[90] In December 2005, while the hearing before Potter J was adjourned part- heard, Mr Siemer instructed Mr G Illingworth QC to examine the documents in the proceeding, advise him and take over the conduct of the defence from his then counsel. Mr Siemer was disappointed in the advice Mr Illingworth provided and, when the contempt application was resumed, Mr Siemer elected to represent himself.

[91] In proceeding 3557 filed in June 2007 Mr Siemer alleged that Mr Illingworth had given him negligent advice, had rendered an excessive account and had disclosed privileged communications.

[92] Mr Illingworth successfully applied for summary judgment. Mr Siemer’s review of the decision of Associate Judge Robinson of 21 December 2007 was dismissed by Harrison J in a judgment dated 1 April 2008.

[93] Mr Siemer pointed out that in Mr Illingworth’s affidavit, which he notes was omitted from the Attorney-General’s bundle of documents, Mr Illingworth had admitted to breaching professional privilege and had sought to mitigate the damage by retrieving the privileged communications provided. Given Mr Illingworth’s

admissions and what Mr Siemer described as the sacrosanct nature of legal professional privilege in the English legal system, Mr Siemer was unable to see how that proceeding could ever be said to have been instituted vexatiously. Mr Ellis made the point that, again, Mr Siemer did not pursue the matter further when the proceeding was struck out.

[94] It is plain enough that part of Mr Siemer’s conduct in this litigation was abusive. After these proceedings were struck out by the Associate Judge, Mr Siemer applied to the High Court to review the decision (although there was no jurisdiction to do so). In his application Mr Siemer suggested that the Associate Judge was protecting a “lawyer who outranks him in the New Zealand Court system”. During the course of his strike out judgment, the Associate Judge expressed concern about those who may be advising Mr Siemer to pursue these proceedings. Mr Siemer responded in an abusive way to the Associate Judge and the defendant. However we agree with Mr Ellis that this proceeding was not instituted vexatiously.

Siemer v Stiassny, Ferrier Hodgson & Co Ltd and Attorney-General: CIV-2008-404-

104 (“proceeding 104”)

[95] Proceeding 104, which was commenced on 9 January 2008, purported to raise three causes of action: conspiracy to defeat the course of justice; systematic deprivation of Mr Siemer’s legal rights; and a conspiracy between Mr Stiassny and Ferrier Hodgson to bring a false claim against Mr Siemer.

[96] It included allegations of breaches of the NZBORA by judges who had dealt with various stages of Stiassny v Siemer to that point and other proceedings filed by Mr Siemer. A variety of forms of relief were sought including general, aggravated and exemplary damages.

[97] In previous proceedings, the defendants were either Mr Stiassny and his company or Mr Siemer’s previous legal advisors. Although in those previous proceedings Mr Siemer had expressed or inferred allegations of incompetence or collusion on the part of judicial officers, proceeding 104 was the first occasion in which he joined the Crown as a defendant in respect of the judiciary and the Solicitor-General.

[98] As the claim consisted of scandalous allegations, many of which sought to question previous judgments, Harrison J struck out the proceedings as an abuse of process.

[99] It was submitted for Mr Siemer that this proceeding sought to address:

... the false premise for the gag injunction Mr Stiassny obtained against [Mr Siemer] and the shifting sands of due process where the High Court upheld the injunction on one ground and the Court of Appeal upheld it on a ground the High Court had refused to accept, in circumstances where that ground had not been cross-appealed.

[100] Mr Ellis argued that the proceeding was not vexatious but that Mr Siemer had exercised poor judgment in attacking the Judge, who had personally attacked him, and that Mr Siemer’s indiscretion was short-lived. Mr Siemer made the further point (relevant to a number of the proceedings) that this NZBORA claim was filed prior to release of the Supreme Court’s decision in Attorney-General v Chapman.²⁹

[101] We are satisfied that the institution of this proceeding was vexatious. The statement of claim contains abusive comments about a number of Judges who had previously given rulings in other cases which are adverse to Mr Siemer. The claim was accompanied by an affidavit sworn by Mr Siemer which contained similar accusations. All defendants applied to strike out the proceeding. Before the application came for hearing Mr Siemer filed an amended statement of claim which joined the Solicitor-General, the Judicial Conduct Commissioner and the Chief Justice. It added causes of action alleging malfeasance in public office and malicious prosecution.

[102] We agree with the assessment of Harrison J in his strike out judgment when he said:³⁰

[6] Mr Siemer’s documents are in essence a lengthy and discursive litany of personal attacks on the integrity, fitness for office and competence of a number of Judges of this Court, the Court of Appeal and Supreme Court who have previously delivered or participated in the delivery of judgments adverse to him.

²⁹ _{Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462.}

³⁰ Siemer v Stiassny HC Auckland CIV-2008-404-0104, 20 March 2008.

[103] As the Judge said, the proceeding was clearly designed to relitigate the defamation proceedings which had been resolved. It was a collateral attack on other proceedings attempting to relitigate that which had finished.

Siemer v Heron, Russell McVeagh, Force 1 Security, Tanaki and Sami: CIV-2008-

004-479 (“proceeding 479”)

[104] Proceeding 479 was commenced in the District Court at Auckland in March

2008. The proceeding related to the events in October 2007 when Mr Siemer had sought to attend the annual general meeting of Vector Ltd in his capacity as a shareholder of that company. The statement of claim pleaded a cause of action in assault against Mr Heron, Russell McVeagh (a law firm), two security guards and their employer and a cause of action for misfeasance by an officer of the court against Mr Heron and Russell McVeagh. General and exemplary damages were sought.

[105] Mr Heron and Russell McVeagh sought an order that Mr Siemer provide security for costs, contending that Mr Siemer would be unable to pay costs if ordered to do so. An order for security for costs in the sum of $20,000 made by Judge Joyce on 11 November 2008 was the subject of a notice of appeal dated 2 December 2008 by Mr Siemer to the High Court.

[106] In the High Court Venning J ordered Mr Siemer to deposit security for costs in respect of the appeal in the sum of $800, that figure being calculated in accordance with the prescribed formula in the High Court Rules. When Mr Siemer’s application in the High Court for leave to appeal against the $800 security sum to the Court of Appeal was refused, Mr Siemer applied for a recall of the High Court judgment and then applied to the Court of Appeal for leave to appeal. When the Court of Appeal declined leave Mr Siemer sought to recall the judgment of the Court of Appeal before applying successfully for leave to appeal to the Supreme Court.

[107] Prior to the Supreme Court hearing Mr Siemer applied unsuccessfully for the recusal of William Young and Blanchard JJ. He then sought to have amended under the slip rule the decision declining that recusal in order to correct what he alleged were factual errors in the decision.

[108] The Supreme Court granted leave to appeal on the jurisdictional question whether there was a right of appeal (without leave) under s 66 of the Judicature Act

1908 against the High Court’s decision on security for costs on the appeal. The Supreme Court held that there was an appeal as of right but that it did not avail Mr Siemer because his appeal had not been filed in time.³¹

[109] On 5 December 2011 Mr Siemer applied to recall the Supreme Court’s judgment. That application having been dismissed, on 12 December 2011 he then sought to recall the decision refusing to recall the primary judgment. That application was also dismissed.

[110] Mr Siemer made the point that the evidence of the assault was uncontested and that the reason why the matter had not proceeded to a hearing was as a consequence of the first award of security for costs made by Judge Joyce. In that respect Mr Ellis made the point that the Attorney-General’s submissions (in the context of proceeding 7890) recognised that the figure for security was a substantial one and that, given its effect on Mr Siemer’s ability to pursue the claim, escalating the dispute through available rights of appeal was legitimate. The Attorney-General had also acknowledged that an important point of procedural law was resolved by the Supreme Court along the way. It was Mr Siemer’s contention that the proceeding could hardly be considered vexatious when a lack of financial means was the only impediment to the pursuit of a factually sound claim.

[111] While the reference to the Attorney-General’s acknowledgement was correct it should also be noted that it was the Attorney-General’s submission (in the context of proceeding 7890) that to have launched successive challenges against the smaller orders for security for costs made on Mr Siemer’s appeal, all of which failed, was vexatious and that the civil proceeding filed had the added vexatious characteristic of collaterally attacking earlier judgments of the Court.

[112] We accept this proceeding was not instituted vexatiously. It was not any form of collateral challenge to other proceedings. There was no application to strike out

_{the claim.}

³¹ Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309.

V Siemer and J Siemer v Stiassny, Ferrier Hodgson & Co Ltd, Attorney-General, Solicitor-General, Judicial Conduct Commissioner and the Chief Justice: CIV-2008-

404-6822 (“proceeding 6822”)

[113] Although an order debarring Mr Siemer from defending the Stiassny v Siemer proceeding was made on 13 July 2007, the formal proof hearing did not take place until 8 October 2008. In a decision of that date Cooper J granted a permanent injunction and fixed damages.

[114] The statement of claim in proceeding 6822 had some similarity to the claim in proceeding 104. However it was longer (comprising 201 paragraphs) and the group of defendants was extended to include the Judicial Conduct Commissioner. It also included causes of action for conspiracy to injure by unlawful means and, in relation only to the Solicitor-General, malicious prosecution.

[115] The statement of claim was referred to Priestley J who issued a minute dated

16 October 2008 in which he noted that the statement of claim was unsatisfactory and required re-pleading. He made directions including that the proceeding be served only on the Solicitor-General. The Siemers objected to those directions and filed an appeal against them in the Court of Appeal.

[116] Before that appeal was determined, the Solicitor-General filed an application to strike out the statement of claim as an abuse of the process of the Court. An order striking out the statement of claim was made by Winkelmann J on 30 November

2008 on the grounds that the claim could not succeed and that the proceeding was an abuse of process because it attempted to relitigate existing proceedings. Her Honour observed that much of the pleading simply took the form of rambling invective.

[117] An appeal by the Siemers against the striking out order was dismissed by the Court of Appeal in a judgment dated 3 February 2011.³² The Court concluded that the allegations in the statement of claim were unsustainable save for the Siemers’ claim arising out of the alleged breach of their rights in the course of the search of their home which, the Court said, they were at liberty to pursue in either the District

_{Court or the High Court.}

³² Siemer v Stiassny [2011] NZCA 1.

[118] The Siemers’ application to the Court of Appeal to recall that judgment was dismissed on 11 April 2011.³³ An application for leave to appeal to the Supreme Court was declined on 20 April 2011.³⁴

[119] Mr Siemer explained that in filing the claim he was seeking to make a comprehensive case that brought together the violations of due process he had experienced through the without notice injunction, without notice hearings and due process breaches that had occurred throughout the defamation proceedings brought against him. He considered that the action was necessary because he had been unable to persuade the courts to address the evidence he had been presenting to the effect that there was no lawful basis for the injunction granted against him.

[120] Recognising that the statement of claim was a cumbersome document and not in a form that he would draft today, he contended that his allegations were nonetheless pleaded with sufficient detail and supported by uncontested evidence. He was unable to see even in 2014 why the claim could not have been remedied by amendment and needed to be struck out. As Mr Ellis put it in submissions, Mr Siemer (never having been heard) was merely trying to replead his claim in a manner which would allow him to be heard.

[121] This proceeding was vexatiously instituted and continued. It was an attempt to relitigate that which had been finally litigated. Much of the claim was abusive toward Judges and others involved in Mr Siemer’s litigation. Mr Siemer’s claim that he had to bring the proceeding in this form because he had been unable to persuade the Courts to address his concerns elsewhere ignores the fundamental point that Mr Siemer’s remedies in these other cases had been exhausted. Mr Siemer’s approach is that when his remedies in one case are exhausted and he remains dissatisfied, he brings another set of proceedings essentially raising the same points

_{together with abusive observations about the judges and others in the first case.}

³³ _{Siemer v Stiassny [2011] NZCA 144.}

³⁴ Siemer v Stiassny [2011] NZSC 43.

Siemer v Attorney-General and the Chief Justice: CIV-2009-004-1534 (“proceeding

1534”)

[122] The second District Court proceeding relied upon was issued by Mr Siemer on 24 June 2009 against the Attorney-General and the Chief Justice.

[123] The statement of claim sought to revisit the decisions of Judge Joyce and Venning J requiring Mr Siemer to lodge security for costs. It was alleged that “the Court order of the exorbitant discretionary financial barrier” breached his rights of natural justice guaranteed by s 27 of the NZBORA. Damages in the sum of $20,800 were sought together with exemplary damages.

[124] The respondents filed a protest to jurisdiction on the basis that the claim was a collateral attack on a decision of the High Court. The protest was upheld and the proceeding was dismissed in a judgment of Judge D M Wilson QC dated

19 November 2009.

[125] Mr Siemer explained that he considered that the Court had systematically breached his guarantee to natural justice in the Heron assault matter by deliberately imposing a prohibitive discretionary security for costs order many times higher than court scale. He regarded it as impossible to consider such a claim to be vexatious. Mr Ellis observed that the claim was only four pages long and dealt exclusively with the issue of whether a $20,000 security for costs order against a known bankrupt was an unlawful prevention to court access guaranteed by s 27 of the NZBORA. In his submission the quest was perfectly reasonable and he noted that the District Court’s decision was not the subject of further challenge.

[126] This proceeding was issued to challenge other court proceedings where Mr Siemer had exhausted his remedies. It was, therefore, a collateral challenge attempting to relitigate that which had already been finally determined. Although the proceeding was not lengthy and was struck out within months of issue, we consider it was vexatious given its collateral nature.

Siemer v Chief Justice and Attorney-General: CIV-2009-404-8435 (“proceeding

8435”)

[127] Proceeding 8435 was commenced on 16 December 2009 impugning the conduct of judges who had dealt with the proceeding Stiassny v Siemer. Unlike earlier proceedings, the focus of which had been the Stiassny v Siemer litigation, in proceeding 8435 neither Mr Stiassny nor his company were named as parties.

[128] Instead, the sole targets of the new proceeding were the judges who had made orders in the earlier litigation. The assertion was made that the conduct of the judges named was such an elementary contravention of the NZBORA guarantees deemed essential in a “lawful and egalitarian” society that they warranted condemnation in the strongest terms by the Court. General and exemplary damages were sought.

[129] In an omnibus judgment dated 22 August 2011 that also dealt with four other proceedings brought by Mr Siemer,³⁵ Woodhouse J struck out proceeding 8435 as constituting an abuse of process of the Court by dint of being a collateral attack on earlier decisions. His Honour remarked:

[78] The pleadings in the five claims amply illustrate the nature of one type of abuse of process. The pleadings make clear, often by express statement, that Mr Siemer simply does not accept the decisions against him. He asserts in respect of numerous decision of the Courts that he is demonstrably right and the Courts were demonstrably wrong. The essence of Mr Siemer’s reasoning as to why the Courts were wrong is simply his assertion that he is right.

[130] A notice of appeal was filed by Mr Siemer on 5 September 2011 and security for costs was set at $5,560. Mr Siemer’s request that security be waived was declined by the Acting Registrar of the Court of Appeal. Mr Siemer’s review of that declinature was dismissed by Arnold J on 6 March 2012.³⁶ Mr Siemer’s attempted

_{appeal to the Supreme Court was rejected in a Minute dated 20 March 2012.}³⁷

³⁵ _{Proceedings 8438, 84, 7025 and 7026.}

³⁶ _{Siemer v Solicitor-General of New Zealand [2012] NZCA 68.}

³⁷ Siemer v Solicitor-General of New Zealand [2012] NZSC 37.

[131] It was said for Mr Siemer that proceeding 8435 was prompted by the addendum in the judgment of Judge Wilson QC (in proceeding 1534 above) to the effect that his decision might not necessarily leave Mr Siemer without a remedy, a matter on which the Judge expressed no view.

[132] In his evidence Mr Siemer said that it is clear that any right must have a remedy in order to really be a right and that determining the proper means for enforcing that right against the judiciary, where direct appeal rights are effectively negated, is long due to be a test case. Far from being vexatious, he considered that the filing of proceeding 8435 was in response to what he regarded as vexatious actions by Cooper J and subsequent delay by the Court of Appeal in the processing of his appeal.

[133] We are satisfied this proceeding was also vexatiously instituted. The proceeding was for a collateral purpose, to challenge other previously resolved litigation. The Judge in the High Court noted this was an attempt by Mr Siemer to again relitigate cases where his remedies had been exhausted. We have come to the same conclusion. Unlike the previous case Mr Siemer did not accept the ruling of Woodhouse J striking out his claim. He pursued appeals to the Court of Appeal and the Supreme Court challenging security for costs orders.

Siemer v Solicitor-General: CIV-2009-404-8438 (“proceeding 8438”)

[134] The statement of claim in proceeding 8438 commenced on 17 December

2009 contained causes of action alleging that the Solicitor-General’s prosecution of Mr Siemer for contempt constituted harassment, malicious prosecution and a breach of Mr Siemer’s right to freedom of expression. The relief sought included general and exemplary/aggravated damages.

[135] The contempt proceeding, the subject of that claim, had been resolved in the Solicitor-General’s favour. An application was filed to strike out proceeding 8438 on the ground, among others, that the claim was a collateral attack on decisions of the High Court and Court of Appeal. The proceeding was struck out by Woodhouse J in his judgment of 22 August 2011.

[136] Mr Siemer’s view was that the issues raised in this proceeding were important issues relating to freedom of expression, his claim being that the Solicitor- General, acting in an official capacity, had unlawfully attempted to silence valid criticism of the Government. Mr Siemer considered that harassment is a perfectly logical cause of action and that he was trying to get it recognised as a tort in New Zealand. He considered that this was a test case and merely an attempt to create new law, being in no way vexatious.

[137] We are satisfied this proceeding was vexatiously instituted. Mr Siemer was entitled to raise (and indeed did raise) the complaints identified in the proceeding in his defence of the contempt proceedings. His attempt to raise them again in this litigation illustrates the collateral nature of his attack.

Siemer v Solicitor-General: CIV-2010-404-84 (“proceeding 84”)

[138] Proceeding 84 issued on 11 January 2010 again raised the contention that the Solicitor-General’s prosecution of Mr Siemer for contempt in respect of Stiassny v Siemer constituted a breach of Mr Siemer’s right to freedom of expression. This proceeding was also struck out in the judgment of Woodhouse J referred to above.

[139] Mr Siemer explained that proceeding 84 had been filed after proceeding 8438 was struck out with no reason having been given as to why it could not have succeeded even if the pleadings were amended. The failure to provide an opportunity to replead the claim was the reason why fresh proceedings had had to be commenced. The claim was in a simplified form abandoning the harassment and malicious prosecution claims and retaining only the claim for an alleged breach of s 14 of the NZBORA. In Mr Siemer’s view repleading a struck out claim in that manner could not be considered vexatious but rather was responsible.

[140] We are satisfied this proceeding was instituted vexatiously. The proceeding was effectively a partial repeat of proceeding 8438 which in turn was a collateral attack on the contempt proceedings.

Siemer v Legal Complaints Review Officer and Collins: CIV-2010-404-986

(“proceeding 986”)

[141] Mr Siemer had also pursued his dissatisfaction with the Solicitor-General’s contempt prosecution by way of a complaint of professional misconduct against the Solicitor-General to the Law Society. That complaint having been dismissed and a review by the Legal Complaints Officer (“LCRO”) having been unsuccessful, Mr Siemer sought judicial review of the LCRO’s decision by proceeding 986, commenced on 22 January 2010.

[142] The Solicitor-General was joined as a party to this proceeding and filed an application to strike it out. In a judgment dated 25 February 2011 Allan J dismissed the judicial review proceeding holding that it was a collateral challenge to the judgment of the Court in the contempt proceedings brought by the Solicitor-General against Mr Siemer.

[143] At [47] his Honour said:

At the heart of Mr Siemer’s argument lies the proposition that Dr Collins had no proper grounds for bringing the contempt application at all. That proposition is completely inconsistent with a finding of the Court which held, in effect, that he did. Indeed, the Court expressly determined that Dr Collins as applicant had met the high burden of proof required of those who allege a contempt of court. A complaint that Dr Collins had no proper grounds for bringing the application is utterly at odds with the finding of the Court that a case for contempt had been made out.

[144] It was submitted for Mr Siemer that this proceeding was a straightforward judicial review of a decision of the LCRO. He viewed as unexpected the Court’s ruling that the LCRO’s decision to decline to consider Mr Siemer’s complaint was proper because consideration would have necessarily entailed relitigation of matters already considered by the Court. He did not pursue any appeal from the High Court’s decision.

[145] However he stated in evidence that he could not comprehend how the Attorney-General could even argue that a judicial review of this nature was vexatious. In his view the decision of the High Court appeared to immunise the Solicitor-General from claims of misleading the court.

[146] We are satisfied this proceeding was vexatiously instituted. The proceeding is also a collateral attack on the contempt judgments and illustrates Mr Siemer’s refusal to accept decisions of the courts which finally resolve litigation. It could hardly be professional misconduct for the Solicitor-General to bring contempt proceedings against Mr Siemer when the courts found the contempt proved. This proceeding was an indirect (collateral) way of attempting to challenge the conclusions of the court in the contempt proceedings.

Siemer v Chief Justice: CIV-2010-404-1909 (“proceeding 1909”)

[147] Proceeding 1909 was the first of three proceedings issued by Mr Siemer in

2010 alleging breaches of the right to natural justice guaranteed by the NZBORA on the part of various judges who had presided over earlier hearings of Mr Siemer’s claims.

[148] The statement of claim in proceeding 1909 dated 29 March 2010 named as the sole defendant the Chief Justice. However it was apparent from the body of the document that the claim, which was for general and exemplary/aggravated damages, related to the conduct of several judges named in the pleading.

[149] In a judgment dated 11 February 2011 Andrews J accepted that the claim was a collateral attack on the judgments of courts in other proceedings and struck out the claim as an abuse of process.

[150] A notice of appeal to the Court of Appeal was filed on 16 February 2011 together with an application for dispensation from the requirement to pay security for costs. The Registrar of the Court of Appeal declined the application for dispensation. Mr Siemer then filed an application for review of the Registrar’s decision which was declined in a judgment of Arnold J dated 13 May 2011.³⁸ The

_{appeal was deemed abandoned under r 43 of the Court of Appeal (Civil) Rules 2005.}

³⁸ Siemer v Chief Justice [2011] NZCA 183.

[151] While conceding that this proceeding was a further attempt to file a claim denied previously by the Court, Mr Ellis advanced two reasons why it was not vexatious. First, it was said that the law with respect to NZBORA claims was unquestionably unsettled at the time; secondly, the Court had not provided guidance as to what needed to be deleted from or added to Mr Siemer’s previous pleadings in order to allow them to proceed as a valid claim under s 27 of the NZBORA.

[152] It was suggested that the Court must take some responsibility for knocking back claims without providing the necessary clarity as to why they must fail as a matter of law. As Mr Siemer put it, he was unfairly put in a position yet again to somewhat blindly rearticulate pleadings in order to have heard a statutory right of claim. He alluded to George Orwell’s Animal Farm where the intractable laws posted on the barnyard door were forever changing.

[153] We are satisfied this proceeding was also vexatiously instituted. It was essentially another attack on a series of decisions made by a number of Judges in litigation involving Mr Siemer. The appeal and review process in each of those cases was designed to hear and decide challenges to decisions. Once the challenges have been exhausted then generally no further challenge is permitted. Mr Siemer’s further proceeding was an indirect way of challenging these decisions. It again illustrates Mr Siemer’s refusal to accept finality where the ultimate decision goes against him.

Siemer v Lang and Attorney-General: CIV-2010-404-7025 (“proceeding 7025”)

[154] This proceeding named Lang J and the Attorney-General as defendants. It alleged that there had been a breach of Mr Siemer’s right guaranteed by s 27 of the NZBORA by Lang J’s decision to impose an award of costs following the discontinued contempt proceedings.³⁹ General and exemplary/aggravated damages

_{were sought. Proceeding 7025 was dismissed in the judgment of Woodhouse J.}⁴⁰

³⁹ _{Solicitor-General v Siemer HC Auckland CIV-2009-404-6747, 26 February 2010.}

⁴⁰ Siemer v Chief Justice of the New Zealand Supreme Court HC Auckland CIV-2009-404-8435,

22 August 2011.

[155] For Mr Siemer this case was characterised as one where a lack of judicial independence (a presiding judge having “subsumed the prosecution” of Mr Siemer after the Solicitor-General had withdrawn) was a breach of the guarantee to natural justice under the NZBORA. Mr Siemer explained that he felt that he had to make this application to get on the record what he was being subjected to, even if he did not succeed. He contended that the circumstances were so abhorrent to justice that the pleading was not vexatious.

[156] We are satisfied this proceeding was vexatiously instituted. The proceeding attempted a collateral challenge to a final decision as to costs following the end of the contempt proceedings.

Siemer v Cooper and Attorney-General: CIV-2010-404-7026 (“proceeding 7026”)

[157] In this proceeding Mr Siemer contended that there had been a breach of s 27 of the NZBORA by Cooper J in the conduct of the formal proof hearing in Stiassny v Siemer.⁴¹ General and exemplary/aggravated damages were sought. This proceeding was also struck out in the omnibus judgment of Woodhouse J.

[158] Mr Siemer explained that he considered the actions of Cooper J amounted to an egregious act of judicial misconduct constituting another example of the type of situation where Mr Siemer considers there should be a limited exception to judicial immunity. He was unable to see how the Attorney-General could even argue that the claim was initiated vexatiously.

[159] We are satisfied this proceeding was vexatiously instituted. The proceeding was a collateral attempt to challenge the decision of Cooper J in the defamation judgment.

Siemer v Harvey and Attorney-General: CIV-2010-404-7890 (“proceeding 7890”)

[160] While the appeal against the decision of Judge Joyce on security for costs was still extant (it then being before the Court of Appeal), on 18 May 2010

⁴¹ Korda Mentha v Siemer HC Auckland CIV-2005-404-1808, 23 December 2008.

Mr Siemer sought a reconsideration of the issue of security for costs. The application, which was heard by Judge Harvey, was declined.

[161] An appeal having been filed on 14 October 2010 against that decision, on

17 March 2011 Keane J fixed security for costs in respect of that appeal at $1,880 in accordance with the prescribed formula in r 20.13 of the High Court Rules. Mr Siemer sought to have the decision of Keane J first recalled and then reconsidered before lodging an appeal against the decision to the Court of Appeal. The Registrar of the Court of Appeal declined to grant a dispensation of the requirement to provide security for costs. Mr Siemer first sought to review the decision of the Registrar and then sought leave to appeal to the Supreme Court.

[162] Proceeding 7890, which was commenced on 22 November 2010, alleged a breach of s 27 of the NZBORA by virtue of the refusal by Judge Harvey to vary the security for costs order of Judge Joyce. General and exemplary damages were sought.

[163] A notice of discontinuance was filed on or about 22 November 2011. Costs in favour of the defendants were then fixed by Associate Judge Doogue on

2 February 2012. Mr Siemer’s application to review that order for costs was

dismissed by Toogood J in a judgment dated 22 June 2012.⁴²

[164] Mr Siemer considered that his treatment by Judge Harvey threatened his right to natural justice and that his claim was founded in statute and supported by precedent when initiated. He emphasises however that upon delivery of the Supreme Court’s decision in Attorney-General v Chapman he immediately filed a notice of discontinuance. ⁴³ He cited this as an example of his taking a reasonable approach which was far removed from being vexatious. Mr Siemer found it bewildering that the Attorney-General could argue that proceeding 7890 and the subsequent appeal

_{against the High Court security order was vexatious.}

⁴² _{Siemer v Harvey and Attorney-General [2012] NZHC 1434.}

⁴³ Above n 29.

[165] We are satisfied this proceeding was vexatiously instituted. It is a clear illustration of Mr Siemer’s refusal to accept decisions of the Courts and his refusal to accept that once he has exhausted his appeal rights the issue is finally determined. Mr Siemer challenged, as he was entitled to, the decision of Judge Harvey through his appeal rights. Once that was exhausted his attempt to reargue Judge Harvey’s costs decision by suing him for a breach of s 27 of the NZBORA was an attempt to relitigate the same issue. This was an objectionable collateral attack and a vexatious proceeding.

Siemer v Chief Justice and Attorney-General: CIV-2011-404-1183 (“proceeding

1183”)

[166] Although the statement of claim bears the date 28 February 2010, proceeding

1183 was filed in March 2011. The claim, for general and exemplary/aggravated damages, alleged breaches of the principles of natural justice and of s 27 of the NZBORA with reference to the conduct of the judges of the Supreme Court in Mr Siemer’s appeal relating to the contempt application brought by the Solicitor- General in respect of Stiassny v Siemer.

[167] The proceeding was struck out by Heath J on 30 August 2011 as constituting an abuse of process by calling into question a decision of the Supreme Court. A notice of appeal was filed and a request for waiver of security for costs was made and declined.

[168] Mr Siemer regarded the Supreme Court’s conclusion (that if Mr Siemer had not removed the portions from his website he would surely have been found to be in contempt) as a quintessential case for a claim under s 27 of the NZBORA given that the Solicitor-General had withdrawn the application. Furthermore he stated that he had not removed the contested wording and that how the Supreme Court had “come up with this story” that he had done so was unclear. As in his view the conduct of the Supreme Court Judges was as clear a breach of the right to be heard and of natural justice as he could imagine, he considered there was no vexatiousness in his claim.

[169] This proceeding was an attempt by Mr Siemer to challenge the Supreme Court decision. In his submission before us Mr Siemer illustrated that his real intention in that proceeding was to relitigate what he viewed as a “wrong” decision by the Supreme Court. The proceeding was a collateral challenge and in the circumstances vexatiously instituted.

Siemer v Judicial Conduct Commissioner and Winkelmann: CIV-2011-404-8024

(“proceeding 8024”)

[170] Subsequent to argument but before delivery of judgment in proceeding

6822,⁴⁴ Winkelmann J issued a minute in which she noted that Crown counsel had advised the Court that a copy of the suppressed judgment in R v Bailey⁴⁵ was available on a website controlled by Mr Siemer. The Solicitor-General’s application against Mr Siemer for contempt followed.

[171] After delivery of judgment in proceeding 6822 Mr Siemer made a complaint to the Judicial Conduct Commissioner alleging that Winkelmann J had a conflict of interest in that, while deliberating on the application to strike out, she had issued the minute referred to above.

[172] The complaint to the Judicial Conduct Commissioner was not upheld and on

13 December 2011 Mr Siemer issued an application for judicial review, being proceeding 8024. An application to strike out the proceeding on the basis that none of the causes of action were reasonably arguable was granted by Peters J in a judgment dated 16 October 2012.⁴⁶

[173] A notice of appeal was filed and application was made for security to be dispensed with. The Registrar having declined that application, Mr Siemer sought review of the Registrar’s decision. The review was dismissed by French J on 30 July

2013.⁴⁷ Mr Siemer then purported to make an application under s 61A(2) of the

_{Judicature Act 1908 for a review of the judgment of French J. In a minute dated}

⁴⁴ _{Siemer v Stiassny HC Auckland CIV-2008-404-6822, 30 November 2009.}

⁴⁵ _{Above n.7}

⁴⁶ _{Siemer v Judicial Conduct Commisioner [2012] NZHC 2710.}

⁴⁷ Siemer v Judicial Conduct Commissioner [2013] NZCA 334.

19 August 2013 French J directed the Registrar to refuse to accept that application for filing for want of jurisdiction.

[174] Mr Siemer disagreed with the Judicial Conduct Commissioner’s conclusion that he could not consider a conflict of interest by a Judge because to do so would call into question a judicial decision. Pointing to the Saxmere case, it was submitted for Mr Siemer that the law was and remains evolving.⁴⁸

[175] It was further said that, having regard to a concession in the Attorney- General’s submissions that Peters J had rejected an argument that the proceeding was vexatious or an abuse of process, it was not open to this Court to reach a different conclusion and so overrule the Judge who had heard specific argument on the ground. However we do not consider that is a correct depiction of the judgment of Peters J. Rather, having reached the view that none of the causes of action were reasonably arguable, her Honour simply concluded that it was not necessary to

determine the collateral attack and abuse of process aspect of the application.⁴⁹

[176] We are satisfied this proceeding was vexatiously instituted. It was an attempt to relitigate, albeit indirectly, a point decided by the Court of Appeal and the Supreme Court. Mr Siemer had raised the alleged conflict of interest of Winkelmann J before the Court of Appeal. The Court rejected the complaint. The Supreme Court refused to grant leave to appeal on the basis that the Court of Appeal decision was correct. This proceeding was effectively an attempt, through the challenge to the failed complaint, to challenge the Court of Appeal’s and the Supreme Court’s conclusions. The proceeding was therefore an attempt at a collateral challenge to an issue resolved finally by the courts.

Siemer v Judicial Conduct Commissioner and Judges of the Supreme Court: CIV-

2012-404-646 (“proceeding 646”)

[177] In December 2011 Mr Siemer made a number of complaints to the Judicial

Conduct Commissioner. These concerned the conduct of the judges of the Supreme

_{Court in giving the judgment dated 8 November 2011 dismissing Mr Siemer’s appeal}

⁴⁸ _{Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35.}

⁴⁹ Siemer v Judicial Conduct Commissioner [2012] NZHC 2710 at [65].

and the refusal of the Supreme Court on two subsequent occasions to recall that judgment. The complaints were not upheld.

[178] On 10 February 2012 proceeding 646 was commenced against the Judicial Conduct Commissioner, the Chief Justice and the other judges of the Supreme Court concerning the dismissal by the Commissioner of Mr Siemer’s complaint about the judges of the Supreme Court.

[179] On an application by the Commissioner for summary judgment Toogood J held, in a judgment dated 27 June 2012, that none of the causes of action could succeed and entered summary judgment for the Commissioner.⁵⁰

[180] A notice of appeal was filed on 16 July 2012 and an application was made for dispensation from security for costs. The Registrar having declined that application, an application for review of that decision was dismissed by Wild J on 5 September

2012. An application for recall of the decision of Wild J was filed on 17 September

2012 which was declined by Wild J on 15 October 2012.

[181] Mr Siemer then applied for leave to appeal to the Supreme Court from the judgment of Wild J. In a judgment dated 1 November 2012 declining leave, the Court commented:⁵¹

[3] We also note that this is the fifth occasion on which Mr Siemer or his wife has sought leave to appeal from a Court of Appeal judge’s determination that security for costs must be paid. Mr Siemer has on this occasion presented essentially the same submissions as previously put forward and rejected. For instance, he raises again the argument that, because the respondent is an officer of state, he (Mr Siemer) should not be required to give security for costs. Mr Siemer knows this argument has previously been rejected. It is an abuse of this Court’s process to continue to file applications for leave based on grounds which Mr Siemer must know have limited or no chance of success.

[182] An application was then made to recall that judgment on eight grounds. The application was dismissed in a judgment of the Supreme Court dated 9 November

_2012.⁵²

⁵⁰ _{Siemer v Judicial Conduct Commissioner [2012] NZHC 1481.}

⁵¹ _{Siemer v Judicial Conduct Commissioner [2012] NZSC 92 (footnotes omitted).}

⁵² Siemer v Judicial Conduct Commissioner [2012] NZSC 95.

[183] When Mr Siemer filed his application for recall on 17 September 2012, the Registrar declined to accept the documents for filing. Mr Siemer’s application for review of that decision dated 3 October 2012 was dismissed in a judgment of Wild J dated 6 June 2013.⁵³ Mr Siemer then applied for review of that judgment of Wild J who issued a Minute on 18 June 2013 stating that there was no power for the Court to review a decision made under s 61A(3) of the Judicature Act 1908.

[184] On 24 June 2013 Mr Siemer then applied for review of the Minute of Wild J. On 15 August 2013 Wild J issued a second minute in which he observed:

[4] Mr Siemer’s 25 June application is an abuse of the process of this busy Court. Mr Siemer is trifling with the Court – deliberately and mischievously wasting its time and resources.

[185] Mr Siemer considered that there had been a breach by the Supreme Court of its rules and a reviewable failure on the part of the Commissioner in refusing to conduct an examination required by s 15 of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004. Mr Ellis drew attention to the observation of Toogood J that there was force in Mr Siemer’s argument that the Commissioner may have misstated the legal position, although the Judge did not think that the way in which the Commissioner expressed himself indicated that he had failed in fact to

conduct a preliminary examination. ⁵⁴ The point was made that, if there was force in

the submission, then it could not be vexatious to judicially review the legal position.

[186] Having filed recall applications and the Supreme Court having, in his view, simply evaded the issue, Mr Siemer considered the only avenue of redress left to pursue was that provided under the Commissioner’s statute. He was unable to see how the Attorney-General could characterise that as a vexatiously filed judicial review.

[187] We are satisfied this proceeding was vexatiously instituted and continued. The proceeding against the Judicial Complaints Commissioner was essentially an

_{attempt to relitigate the Supreme Court’s decision in Siemer v Heron.}⁵⁵ _{The cause of}

⁵³ _{Siemer v Judicial Conduct Commissioner [2013] NZCA 205.}

⁵⁴ _{Siemer v Judicial Conduct Commissioner, above n 50, at [49].}

⁵⁵ Siemer v Heron, above n 31.

action against the Supreme Court Judges was a similar attempt to relitigate litigation which had been finally resolved.

Siemer v Stiassny and Korda Mentha: CIV-2012-404-1133 (“proceeding 1133”)

[188] The last in time of the proceedings relied upon by the Attorney-General is proceeding 1133 which named as defendants only Mr Stiassny and his firm. Commenced on 28 February 2012, it involved an attempt to revisit the subject of Stiassny v Siemer by seeking to have the judgment of Cooper J⁵⁶ set aside on the ground that the judgment was obtained by fraud. On the defendants’ application to strike out the claim Andrews J made a strike out order in a judgment delivered on

_{18 May 2012.}⁵⁷

[189] Mr Siemer lodged an appeal to the Court of Appeal and made an application for a waiver of the requirement to pay security for costs. The Registrar having declined to grant the waiver, an application to review the Registrar’s decision was declined in a judgment of Wild J dated 5 September 2012.⁵⁸

[190] Mr Siemer’s application to the Supreme Court for leave to appeal against the judgment of Wild J was dismissed in a judgment dated 7 March 2013.⁵⁹ Mr Siemer also filed an application in the Court of Appeal for a review of the judgment of Wild J. That application for review was dismissed in a judgment of Wild J dated

_{6 June 2013.}⁶⁰

[191] For Mr Siemer the point was made that this proceeding had the benefit of experienced counsel advancing it and that in a minute of 5 March 2012 Brewer J had confirmed that the claim had been brought by the appropriate mechanism. It was submitted that, while the claim was struck out on the basis that it was a collateral attack on an unspecified court judgment, in fact no court had addressed the evidence in question. In the circumstances Mr Siemer could not see how the Attorney-

_{General reasonably believed the claim to be vexatious.}

⁵⁶ _{Korda Mentha v Siemer, above n 41.}

⁵⁷ _{Korda Mentha v Siemer [2012] NZHC 1074.}

⁵⁸ _{Siemer v Stiassny CA362/12, 5 September 2012.}

⁵⁹ _{Siemer v Stiassny [2013] NZSC 11.}

⁶⁰ Siemer v Stiassny [2013] NZCA 206.

[192] We are satisfied this proceeding was vexatiously instituted. It was again an indirect attempt to challenge the defamation judgment given by Cooper J by a collateral attack alleging that the judgment was based on fraud.

Has the Attorney-General proved the persistent institution of vexatious proceedings?

[193] Section 88B requires the Attorney to satisfy us that Mr Siemer has persistently and without reasonable ground instituted vexatious proceedings. We have identified (at [63], [67] and [71]) the approach we take to this assessment.

[194] In his brief of evidence Mr Siemer commented on each of the proceedings the Attorney-General said were commenced or continued vexatiously. Mr Siemer’s view of that application is that “the evidence shows them (as claims) to be meritorious” but he considers that fact “has been largely ignored or evaded by technical ploys which often defy the elementary rules of Court”.

[195] This refusal by the courts to consider the merits of his claims or, when the courts do so, getting the wrong answer is a significant part of the rationale behind Mr Siemer’s multiple proceedings on what are essentially the same issues. Mr Siemer’s theme in his submissions is that, given the courts’ multiple errors in previous litigation and given the fact that Mr Siemer has “been unable to get the Courts to address the evidence” that he had been presenting in these cases, further litigation to expose these errors was necessary.

[196] These comments illustrate a regular theme in Mr Siemer’s litigation and his submissions to us: a refusal to accept the finality of litigation when he considers the courts are wrong. Mr Siemer’s view is that collateral challenges are legitimate because the court decision which he is collaterally challenging is wrong. Accordingly, much of his litigation is marked by applications to recall judgments he considers wrong; litigation against judges for “wrong” decisions and refusals to recuse themselves; litigation against lawyers who represent opponents (or indeed Mr Siemer); complaints to the Law Society about such lawyers and to the Judicial Complaints Commissioner about judges involved in his litigation and litigation

involving these bodies if they reject his complaints. There is, therefore, a widening circle of persons drawn into Mr Siemer’s core dispute.

[197] We accept that not all of these cases illustrate all of this conduct. But looked at overall we are satisfied there is such a pattern of conduct. We are satisfied that Mr Siemer has persistently instituted vexatious proceedings. Of the 19 sets of proceedings identified by the Attorney-General as vexatious, we are satisfied 15 come within this category. All 15 sets of proceedings were instituted for collateral purposes to challenge decisions of judges where Mr Siemer disagreed with their conclusions.

[198] We are satisfied, therefore, that the Attorney-General has established that Mr Siemer has persistently without any reasonable ground instituted vexatious proceedings. We now turn to the form of any order to be made against Mr Siemer.

Extent of orders

[199] In one way or another all of the proceedings issued by Mr Siemer and the subject of this application arose from his original dispute with Mr Stiassny and Ferrier Hodgson following from the liquidation of Paragon.

[200] Consequently Mr Ellis submitted that if any s 88B order was made it should be restricted to requiring leave for proceedings to be brought against Mr Stiassny, Ferrier Hodgson and the Judges. The Attorney-General sought a broader ban covering all proceedings Mr Siemer wished to issue.

[201] Mr Siemer has sued a remarkably wide range of persons arising from the initial litigation with respect to Paragon. As we have noted, in addition to the above three parties, the litigation involves lawyers who acted for him and opposing parties (including the Solicitor-General), the Law Society and the Judicial Complaints Commissioner as recipients of complaints from Mr Siemer and the Attorney-General as representative of other parties. Consequently any orders which properly related directly to the subject matter of this litigation would need to include these persons.

[202] We have considered whether, given the wide range of such persons and given Mr Siemer’s capacity to identify new parties to this alleged injustice arising from his core dispute, it would be more appropriate to impose a general ban pursuant to s 88B. We have decided not to do so. We accept the principle that any restriction of the right to bring proceedings (even if only by a leave application) should be as narrow as possible, consistent with the intent of s 88B to protect defendants from persistent vexatious proceedings.

[203] To that end the fact that Mr Siemer’s litigation all has a single underlying point convinces us that the appropriate outcome is to restrict the bringing of proceedings arising from this dispute (directly or indirectly) without leave.

[204] We therefore make the following orders:

(a) Mr Siemer is not to institute any civil proceedings against any person in the High Court and in any inferior Court without leave of the High Court where the other party is:

(i) Mr Michael Stiassny;

(ii) Ferrier Hodgson – Accountants;

(iii) any Associate Judge or any Judge of the District Court, High Court, Court of Appeal or Supreme Court;

(iv) the Attorney-General; (v) the Solicitor-General;

(vi) the New Zealand Law Society;

(vii) the Judicial Conduct Commissioner;

(viii) any barrister and/or solicitor of the High Court of

New Zealand;

(b) Mr Siemer is not to institute any proceeding which relates directly or indirectly to his dispute with Mr Stiassny, Ferrier Hodgson, Mr Robert Fardell and Paragon Oil Systems;

(c) all proceedings currently before the High Court and any inferior Court involving any of the above parties in (a)(i)-(viii) or involving the dispute identified in (b) (whether directly or indirectly) will not be continued by Mr Siemer without leave of the High Court.

(We use the term “inferior Court” because that is the phrase used in s 88B

and to ensure all courts below the High Court are included in this order.)

[205] We have considered whether any order made by us can also apply to existing proceedings in the Court of Appeal or where there may be unexercised appeal rights covered by the litigation identified in [201].

[206] In Heenan v Official Assignee the Court of Appeal concluded that the words “in any Court” in s 88B were restricted to the High Court and “inferior Courts” and did not include the Court of Appeal.⁶¹

[207] The Court noted that where the s 88B order prevented proceedings being instituted as of right in the High Court, no appeal would be possible unless leave was granted. Where leave is granted, appeal rights would be protected. The Court did not specifically consider appeal rights with respect to existing proceedings.

[208] However, given the Court concluded that the words “in any Court” in s 88B limited the orders that could be made to proceedings in the High Court and inferior Courts, we cannot make any order directly restricting Mr Siemer’s appeal rights.

[209] We acknowledge that the orders in (a)(i)-(viii) and in (c) above are wide. They cover all proceedings. The orders do so to ensure all proceedings that relate to the Stiassny/Ferrier Hodgson/Fardell dispute are covered by the prohibition. We

_{anticipate that where it is clear that leave is sought by Mr Siemer to institute}

⁶¹ Heenan v Official Assignee [2010] NZCA 135 at [11]–[17].

proceedings that have no connection with this dispute, (even though one of the parties is covered by (a)(i)-(viii)) leave might be granted where a legitimate cause of action is revealed. It will, however, be a matter for the Judge who considers the application.

[210] In this judgment we have referred to the developments in the equivalent laws in other jurisdictions. We have also had occasion to consider the application of s 88B to a proceeding which, while not instituted vexatiously, was subsequently conducted in a vexatious manner. It is our recommendation that consideration be given to amending s 88B in the same manner as in Canada and Australia so as to extend its application to cases where the vexatious behaviour occurs only subsequent to the institution of the proceeding.

_{[211] In the circumstances we make no order as to costs.}

Ronald Young J Brown J