Siemer v Chief Justice

• Jurisdiction: New Zealand
• Judge: Woodhouse J
• Judgment Date: 22 August 2011
• Neutral Citation: [2011] NZHC 936
• Docket Number: CIV-2009-404-8435 CIV-2010-404-0084 CIV-2010-404-7025 CIV-2010-404-7026
• Court: High Court
• Date: 22 August 2011

Between

Vincent Ross Siemer

Plaintiff

and

Chief Justice of the New Zealand Supreme Court

First Defendant

and

The Attorney-General

Second Defendant

Between

Vincent Ross Siemer

Plaintiff

and

The Solicitor-General of New Zealand

Defendant

Between

Vincent Ross Siemer

Plaintiff

and

The Solicitor-General of New Zealand

Defendant

And Between

Vincent Ross Siemer

Plaintiff

and

Graham Laurie Lang

First Defendant

and

Attorney General of New Zealand

Second Defendant

And Between

Vincent Ross Siemer

Plaintiff

and

Mark Leslie Cooper

First Defendant

and

Attorney General of New Zealand

Second Defendant

[2011] NZHC 936

CIV-2009-404-8435

CIV-2009-404-8438

CIV-2010-404-0084

CIV-2010-404-7025

CIV-2010-404-7026

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

Applications to strike out plaintiff's claim — all claims involved in the five proceedings were concerned with earlier proceedings in various NZ Courts and the resultant decisions which included contempt proceedings against the plaintiff — defendants were all involved in some part of the judicial aspect of those proceedings — plaintiff now alleging violation of s14 and s27 New Zealand Bill of Rights Act 1990 (freedom of expression and right to justice); abuse of Court process in contempt proceedings against plaintiff; “harassment” of plaintiff; breach of International Covenant on Civil and Political Rights — whether the grounds for strike out were made out.

Appearances:

Plaintiff in person

P Gunn for the Defendants in CIV-2009-404-8435, CIV-2009-404-8438 and CIV-2010-404-0084

A Powell for the Defendants in CIV-2010-404-7025 and CIV-2010-404-7026

JUDGMENT OF Woodhouse J

(Applications to strike out)

Introduction

1 There are applications by or on behalf of the defendants in five proceedings to strike out the statements of claim in their entirety. In three of the proceedings there are also applications to strike out the names of one of the defendants on the grounds of judicial immunity from suit or improper joinder.

2 Mr Siemer is the plaintiff in each proceeding. Abbreviated references for each proceeding and particulars of the defendants are as follows:

• • “Claim 1” is CIV-2009-404-8435, filed on 17 December 2009. The Chief Justice is the first defendant. The Attorney-General is the second defendant.

• • “Claim 2” is CIV-2009-404-8438, also filed on 17 December 2009. The Solicitor-General is the defendant.

• • “Claim 3” is CIV-2010-404-0084, filed on 18 January 2010. The Solicitor—General is the defendant.

• • “Claim 4” is CIV-2010-404-7025, filed on 22 October 2010. A Judge of the High Court, Lang J, is the first defendant. The Attorney-General is the second defendant.

• • “Claim 5” is CIV-2010-404-7026, also filed on 22 October 2010. A Judge of the High Court, Cooper J, is the first defendant. The Attorney-General is the second defendant.

3 In three of the proceedings the claims are contained in amended or second amended statements of claim. For convenience I will refer to the relevant statement of claim in each proceeding as “the claim”. All of the statements of claim were accompanied by an affidavit of Mr Siemer. In the proceedings where there are amended statements of claim the applications to strike out were filed before the amended pleading was filed. The strike out applications nevertheless effectively apply to the amended or second amended claim. Counsel for the defendants noted necessary modifications.

The strike out grounds

4 The main strike out grounds are the following:

• (a) The claim is an abuse of process because it is a collateral attack on final decisions of the courts. This is a ground for striking out all five claims.

• (b) The claim discloses no reasonably arguable cause of action. This strike out ground was pursued at the hearing in claims 1 and 2. It was recorded in the application for strike out in claims 3 and 5, but not pursued at the hearing as a distinct ground.

• (c) In claims 1, 4 and 5 there are applications to strike out the claims against the first defendants on the grounds of judicial immunity and, also, in the case of the Chief Justice in claim 1, on the ground that she cannot be sued as representative of the judiciary.

• (d) There are some further grounds advanced in respect of some of the claims. It is unnecessary to consider them.

Legal principles

Abuse of process by collateral attack

5 A “collateral attack” in this context is the bringing of a court proceeding which directly or indirectly challenges, or seeks to reopen aspects of, a final decision in an earlier court proceeding. A proceeding of this nature will in general be an abuse of process requiring the Court to strike out the new proceeding.

6 The broad principle underlying this was discussed by Lord Wilberforce in The Ampthill Peerage 1 case as follows:

English law, and it is safe to say, all comparable legal systems, place high in the category of essential principles that which requires that limits be placed upon the right of citizens to open or to reopen disputes. The principle which we find in the Act of 1858 is the same principle as that which requires judgments in the courts to be binding, and that which prohibits litigation after the expiry of limitation periods. Any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interest of peace, certainty and security it prevents further inquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth (I do not say that this is such a case), and these are cases where the law insists on finality. For a policy of closure to be compatible with justice, it must be attended with safeguards: so the law allows appeals: so the law, exceptionally, allows appeals out of time: so the law still more exceptionally allows judgments to be attacked on the ground of fraud: so limitation periods may, exceptionally, be extended. But these are exceptions to a general rule of high public importance, and as all the cases show, they are reserved for rare and limited cases, where the facts justifying them can be strictly proved.

7 Hunter v Chief Constable of the West Midlands Police 2 concerned an application to strike out a civil proceeding on the grounds that it was a collateral attack on a conviction in a criminal proceeding. The leading judgment was given by Lord Diplock. He began as follows: 3

My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power.

8 Following a summary of the earlier criminal proceeding and of the civil proceeding contended to be a collateral attack, Lord Diplock said: 4

The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.

9 The principles apply in New Zealand. 5 New Zealand Social Credit Political League Inc v O'Brien 6 involved a collateral attack on an earlier civil proceeding. Somers J said: 7

Estoppel per rem judicatam, issue estoppel, and abuse of process in at least one of its manifestations, may be seen as exemplifying similar concepts – that a matter once determined may not be again litigated, that a matter which could and should have been raised in proceedings which have been determined should not be allowed to be raised subsequently, and that a collateral attack upon a final decision in other proceedings will not be permitted. The dual objects are finality of litigation and fair use of curial procedures.

No reasonably arguable cause of action

10 The general principles are well settled: see Attorney-General v McVeagh; 8 Attorney-General v Prince; 9 Couch v Attorney-General. 10 They are summarised in McGechan on Procedure as follows: 11

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

• (b) The cause of action for defence must be clearly untenable. In Couch Elias CJ and Anderson J, at [33], said: “It is inappropriate to strike

  out a claim summarily unless the court can be certain that it cannot succeed.”

• (c) The jurisdiction is to be exercised sparingly, and only in clear cases. This reflects the Court's reluctance to terminate a claim or defence short of trial.

• (d) The jurisdiction is not excluded by the need to decide difficult...