New Zealand Law Society - Vexatious litigant order expires after three years

Vexatious litigant order expires after three years

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The High Court has decided that Vincent Ross Siemer is no longer subject to an order made in 2016 which declared him a vexatious litigant.

In a decision on 25 November, Siemer v New Zealand Law Society [2019] NZHC 3075, Palmer J found that changes made by the Senior Courts Act 2016 meant the 2016 order had expired on 4 March 2016.

In 2014 the High Court declared Mr Siemer a vexatious litigant under s 88B of the Judicature Act 1908 and imposed a general order on him to obtain leave before instituting civil proceedings in relation to certain respondents and subjects.

On 4 March 2016, Mr Siemer unsuccessfully appealed to the Court of Appeal ([2016] NZCA 43) and the Supreme Court declined leave to appeal from the Court of Appeal ([2016] NZSC 75). In the present proceedings Mr Siemer sought leave of the High Court to file an application for judicial review of decisions by the New Zealand Law Society and Mr Clayton Luke, a barrister.

On receipt of Mr Siemer’s application Palmer J invited submissions from Mr Siemer and the Attorney-General on whether the High Court had jurisdiction to decide on Mr Siemer’s application.

Vexatious litigants

Until 1 March 2017, when the Senior Courts Act 2016 came into force, section 88 of the Judicature Act 1907 allowed the High Court to order that “no civil proceeding or no civil proceeding against any particular person, may be instituted or continued by a person in any Court without leave of the High Court”. To make an order, the person had to have the opportunity to be heard and the High Court had to be satisfied that the person “has persistently and without any reasonable ground instituted vexatious legal proceedings”.

From 1 March 2017, s 166 of the Senior Courts Act 2016 has empowered the High Court to make three types of order restricting the commencement or continuation of civil proceedings, including a “general order” similar in effect to those under s 88B.

Section 168(2) provides: An order made under section 166, whether limited, extended, or general, has effect for a period of up to 3 years as specified by the Judge, but the Judge making it may specify a longer period (which must not exceed 5 years) if he or she is satisfied that there are exceptional circumstances justifying the longer period.

Palmer J: reasoning

The Senior Courts Act 2016 contains a transitional provision (clause 10(2) of Schedule 5 of the 2016 Act) that provides that a s88B order is treated as having been made under the 2016 Act.

Palmer J also agreed with Venning J in Re Rafiq [2019] NZHC 1193, that the interpretation based on the plain meaning, purpose and rights-consistency of the transitional provision means that there must be a time limit on the order. Venning J adopted a purposive interpretation, supported by holding that the transitional provision applied to s 88B orders. “An interpretation limiting the length of time a litigant is banned is more consistent with the right under section 27 (2) of the Bill of Rights”. Section 27 guarantees everyone the right to natural justice. Section 27(2) contains the right to judicial review from determinations of tribunal or court decisions.

In addition, s 17(1)(e) of the Interpretation Act 1999 provides that repeal of an enactment does not affect the previous operation of the enactment or anything done or suffered under it. The logical implication is that Parliament intended the relevant maximum time limit provided for in the 2016 Act to the s 88B order in this case.

At the time the order was made the time limit was not considered because the High Court could revoke the order at any time in the future, should there be a change of circumstances. That is now inconsistent with s 169 of the Senior Courts Act 2016 which now requires a time limit of three years, unless there are exceptional circumstances. The Court of Appeal’s judgment did not address that, therefore the s 88b order imposed on Mr Siemer had a term of three years.

The result is that the s 88B order, applying to Mr Siemer as a vexatious litigant must be treated as a general order under the 2016 Act, and therefore expired on 4 March 2019, three years after it was imposed.

Justice Palmer said Mr Siemer is no longer subject to the s 88B order imposed by the Court of Appeal on 4 March 2016.

Present application

Because of this decision, Palmer J concluded that he had no jurisdiction to approve the filing of the claim that Mr Siemer sought to file, as no leave was required.

However, aspects of his claim were troubling and raised the question of whether Mr Siemer should be restricted from commencing the proceedings afresh. Palmer J considered making an order on his own initiative, but instead has sought submissions from Mr Siemer and the Attorney-General and stayed the proceedings pending the resolution of that issue.