Siemer v Ministry of Justice [2018] NZHC 646 (11 April 2018)

Last Updated: 17 May 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-507 [2018] NZHC 646

UNDER	the Judicial Review Procedure Act 2016 and s 27(2) of the New Zealand Bill of Rights Act 1990
IN THE MATTER	of a Judicial Review
BETWEEN	VINCENT ROSS SIEMER Plaintiff
AND	MINISTRY OF JUSTICE First Defendant CLAYTON LUKE Second Defendant

Hearing:	On the papers
Date:	11 April 2018

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 11 April 2018 at 2 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Copy for: Plaintiff

First and Second Defendants

SIEMER v MINISTRY OF JUSTICE [2018] NZHC 646 [11 April 2018]

Background

[1] The Registrar has referred to me a without notice application by Mr Siemer for leave to commence an application for judicial review against the Ministry of Justice (“Ministry”) and Mr Clayton Luke, described in the intituling as a Disputes Tribunal Referee, as first and second defendants respectively.¹

[2] Mr Siemer requires leave because on 4 March 2016 the Court of Appeal ordered that Mr Siemer (“order”):²

... must obtain the leave of the High Court before commencing or continuing any proceeding in the High Court or any inferior court.

[3] Mr Siemer seeks leave on the grounds that:

1. The proposed judicial review is self-explanatory, succinct and meritorious on the face of its pleadings.

2. It is in the interests of justice to grant leave in the circumstances, particularly given the Judicial Review does not seek to review a Crown agency substantive decision but rather to review an elementary denial of access by that Crown agency to its officially promoted complaint remediation process.

[4] Having received the application for leave, the Registrar asked Mr Siemer if he wished to file an affidavit in support. By emails dated 23 March and 9 April 2018, Mr Siemer advised that he did not and that an affidavit was:

... only necessary if the duty judge considers the pleadings untrue. The claim is succinct and pleaded with sufficient particulars to refer to a judge for the purpose of determining the leave question. ...

[5] Mr Siemer also advised that he wished the application to be referred to a Judge, as it has been.

Order

[6] The order was made pursuant to s 88B Judicature Act 1908 (“s 88B”):

¹ Without Notice Application for Leave to file Judicial Review dated 23 March 2018.

² Siemer v Attorney-General [2016] NZCA 43, [2016] NZAR 411 at [48].

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.

(2) Leave may be granted subject to such conditions (if any) as the court or Judge thinks fit and shall not be granted unless the court or Judge is satisfied that the proceeding is not an abuse of the process of the court and that there is prima facie ground for the proceeding.

(3) No appeal shall lie from an order granting or refusing such leave.

[7] Section 88B was repealed on 1 March 2017.³ The effect of clause 10, Schedule 5, Senior Courts Act 2016 (“Act”) is that the order is now to be treated as having originated under the Act:⁴

10 Proceedings, etc, continue under relevant Act

...

(2) All ... orders ... that originated under the relevant Act or another enactment continued or repealed by this Act, and that are subsisting or in force on the commencement of this clause, have full effect as if they had originated under the corresponding provisions of this Act and, where necessary, must be treated as having originated under this Act.

...

Proposed statement of claim

[8] The essence of Mr Siemer’s proposed statement of claim is this.

[9] On www.disputestribunal.govt.nz and www.justice.govt.nz, the Ministry states that it receives and addresses “complaints about the behaviour of a

³ Senior Courts Act 2016, ss 2(1), 182(2).

⁴ Senior Courts Act 2016, sch 5, cl 10.

Disputes Tribunal Referee” and that such complaints should be made to [e-mail] (“email address”).

[10] Mr and Mrs Siemer appeared at a hearing before the Disputes Tribunal in 2017. On 1 March 2018, Mr Siemer sent a complaint and supporting evidence to the email address, that complaint concerning Mr Luke’s conduct as Referee at the hearing.

[11] By email dated 2 March 2018, an “Advisor” for “Communications” at the Ministry wrote to Mr Siemer as follows:

Your correspondence of 1 March 2018 has been received by the [Ministry]. As set out in the letter to you dated 20 December 2017, the Ministry has provided all the information it is able to and will not be entering into any further correspondence on the matters you have raised.

[12] Mr Siemer alleges the Ministry did not send a letter to him dated 20 December 2017; that he first made his complaint to the Ministry after 20 December 2017 and on 1 March 2018; and that the response of 2 March 2018 denied Mr Siemer access to the Ministry’s complaint process. Mr Siemer contends this denial was unfair; that any letter of 20 December 2017 was an irrelevant consideration; that in refusing to consider the complaint, the Ministry breached its official obligations and Mr Siemer’s right to natural justice; and the Advisor referred to above was unqualified to prevent the complaint proceeding, rendering the refusal ultra vires.

[13] I record that, although Mr Siemer alleges in [8] of the proposed statement of claim that the Ministry did not send him a letter of 20 December 2017, in [14] he alleges that the letter was “immaterial if not non-existent”.

Leave

[14] Sections 166 to 169 of the Act are equivalent to what was s 88B.

[15] Sections 166 and 167 provide for the making of what are referred to as “limited”, “extended” and “general” orders. The order to which Mr Siemer is subject is equivalent to a general order in so far as it precludes him from commencing any civil proceeding in the High Court or any inferior Court.
[16] Section 168 provides that the Court, when making an order under ss 166 and 167, may also provide that the party concerned may seek leave to commence proceedings, and that too is equivalent to the order to which Mr Siemer is subject.

[17] Parts of s 169 concern such an application for leave, providing:

169 Procedure and appeals relating to section 166 orders

...

(4) An application for leave to continue or commence a civil proceeding by a party subject to a section 166 order may be made without notice, but the court may direct that the application for leave be served on any specified person.

(5) An application for leave must be determined on the papers, unless the Judge considers that an oral hearing should be conducted because there are exceptional circumstances and it is appropriate to do so in the interests of justice.

(6) The Judge’s determination of an application for leave is final.

...

(11) In this section, a section 166 order means an order made under section 166.

[18] Since 1 March 2017, other Judges of this Court have proceeded on the basis that leave may only be granted under the Act if the criteria in what was s 88B(2) is met.⁵ I would have done likewise in this case, particularly given this statement by the Court of Appeal in Siemer v Attorney-General:⁶

[35] The key purposes of s 88B are the need to protect defendants from groundless litigation, to protect the limited resources of the judicial system for use in the resolution of genuine proceedings and the need to protect the vexatious litigant from their own vexatious conduct.

[19] I cannot, however, begin to address the application for leave in the absence of evidence that the allegations in the proposed statement of claim are accurate. As stated above, Mr Siemer has not filed an affidavit in which, at a minimum, he would have been required to make full and frank disclosure of all relevant documents and

5. Rafiq v The Secretary of the Department of Internal Affairs [2017] NZHC 584; Rafiq v The Commissioner of New Zealand Police [2017] NZHC 2739; Rafiq v District Court at Manukau [2018] NZHC 2; Rafiq v Ministry of Justice [2018] NZHC 544.

⁶ Siemer v Attorney-General [2016] NZCA 43, [2016] NZAR 411.

communications, including the material from the websites and the correspondence to which he refers in the proposed statement of claim. Absent that, I cannot take the application for leave further, let alone decide whether it should be served on any specified person as provided for in s 169(4) of the Act.

Result

[20] For the reasons given, I dismiss Mr Siemer’s application for leave dated 23 March 2018.




Peters J