Siemer v Harvey and Another

• Jurisdiction: New Zealand
• Judge: Toogood J
• Judgment Date: 22 June 2012
• Neutral Citation: [2012] NZHC 1434
• Docket Number: CIV-2010-404-7890
• Court: High Court
• Date: 22 June 2012

Between

Vincent Ross Siemer

Plaintiff

and

David Harvey

First Defendant

and

Attorney General of New Zealand

Second Defendant

[2012] NZHC 1434

CIV-2010-404-7890

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

Review of Associate Judge's costs decision on discontinuance of proceeding — plaintiff was suing District Court Judge for alleged “legal abuses” relating to breaches of natural justice contrary to s27 New Zealand Bill of Rights Act 1990 (right to justice) — withdrew proceeding following Supreme Court decision (reversing Court of Appeal) that High Court did not have jurisdiction in respect of claims against judiciary for public law compensation for alleged breaches New Zealand Bill of Rights Act — whether costs should not be awarded as effect of SC decision was to retrospectively remove right of action — whether Crown should be treated differently from other private litigants when being sued.

Appearances:

Plaintiff in Person

MD Downs for First and Second Defendants

V Siemer, 27 Clansman Tce, Gulf Harbour: vsiemer@hotmail.com

MD Downs, Crown Law, Wellington: Mathew.downs@crownlaw.govt.nz

JUDGMENT OF Toogood J

[REVIEW OF COSTS DECISION OF DOOGUE AJ ON DISCONTINUANCE OF PROCEEDING]

1 The plaintiff has applied under s 26P(1) of the Judicature Act 1908 for a review of a costs order made against him by an Associate Judge. 1

2 On 25 November 2012, Mr Siemer filed a statement of claim in this Court seeking general damages of $25,000 and exemplary damages of $10,000 against the first defendant, a District Court Judge. The Attorney-General was sued “as the figurative Crown legal representative of New Zealand, for alleged legal abuses by the first defendant.”

3 It is sufficient for present purposes to record that the claim against Judge Harvey and the Attorney-General related to a decision of the Judge to dismiss an application by Mr Siemer, in connection with proceedings issued by him in the District Court at Auckland, to vary or set aside an order requiring payment of $20,000 by way of security for costs.

4 The essence of the damages claim was an allegation that the Judge had breached the principles of natural justice in contravention of Mr Siemer's rights under s 27 of the New Zealand Bill of Rights Act 1990, and that claims for general and exemplary damages were available as a result. In his case management memorandum filed in advance of a telephone conference to be held on 22 March 2011 by Christiansen AJ, Mr Siemer described the claim for damages as one “in statute, affirmed by recent precedent.”

5 Mr Siemer's reference to “recent precedent” was a reference to the judgment of the Court of Appeal in Chapman v Attorney-General. 2 An appeal from that decision was then before the Supreme Court for determination, the argument having been heard in December 2010 and judgment being awaited.

6 In their statement of defence dated 31 January 2011, the first and second defendants pleaded the following affirmative defences:

• (a) the allegations against Judge Harvey were barred by virtue of the immunity of District Court Judges from suit;

• (b) to the extent that the plaintiff made allegations of vicarious liability against the Attorney-General, the first defendant was exercising responsibilities of a judicial nature and accordingly the allegations were barred by virtue of s 6(5) of the Crown Proceedings Act 1950;

• (c) the proceeding was an abuse of process because the plaintiff had exercised his right to appeal to the High Court against Judge Harvey's decision of 22 September 2010, the decision which he sought to review in the present proceeding, and that a fixture for the hearing of that appeal had been allocated for 19 May 2011; and

• (d) that even if there had been breaches of the New Zealand Bill of Rights Act 1990, general and exemplary damages were not available in law and alternatively, such damages would not be available because the plaintiff had a proper and adequate remedy by way of the appeal to the High Court.

7 The question of law which had been approved for consideration of the Supreme Court in the Chapman appeal was “whether Bill of Rights damages can be ordered against the Attorney-General on behalf of the Crown for breach of fair trial rights by judicial conduct in respect of which the judicial officer is immune from liability”. 3 It was agreed between the parties, and concurred in by Christiansen AJ, that further steps in relation to this proceeding should be deferred pending the outcome of the appeal to the Supreme Court in Chapman.

8 That judgment was delivered on 16 September 2011. 4 By a majority, the Supreme Court determined that the High Court did not have jurisdiction to hear and determine a claim for public law compensation for alleged breaches by the judiciary of ss 25 and 27 of the New Zealand Bill of Rights Act.

9 Responsibly, Mr Siemer filed a memorandum in this proceeding, ahead of a telephone conference scheduled to take place with Christiansen AJ on 25 October 2011, seeking to “withdraw the proceeding, by consent, without prejudice” and to have the Court refer the claim and his supporting affidavit to the Office of the Judicial Conduct Commissioner. This latter request was based apparently on a reference in the majority judgment of the Supreme Court in Chapman to the availability of complaints about judicial misconduct being referred to the Commissioner under the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004. 5

10 It was submitted by counsel for the defendants, in response, that if the plaintiff wished to discontinue this proceeding he was required to file a notice of discontinuance in accordance with r 15.19 of the High Court Rules. Counsel signalled that the defendants would seek costs in that event under r 15.23.

11 Rule 15.23 provides:

15.23 Costs

Unless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.

12 In Kroma Colour Prints v Tridonicatco NZ Limited, the Court of Appeal held “that the presumption in favour of awarding costs to a defendant against whom a proceeding...