[1] Mr Siemer has applied for an order recalling or setting aside a judgment of Cooper J dated 23 December 2008,1 (“the defamation judgment”). The application raises the following issues:

(a) Does the application for recall replicate grounds already argued by

Mr Siemer before the Court of Appeal and Supreme Court?

(b)If not, do any new grounds raised by Mr Siemer justifying setting aside the defamation judgment on the grounds of fraud?

(c) Should this proceeding have been struck out without a hearing because Potter J has debarred Mr Siemer from defending the defamation proceedings?

[2] I have determined that:

(a) Mr Siemer’s criticisms of Cooper J’s findings in the defamation judgment have been addressed and disposed of by the Court of Appeal and the Supreme Court: [10] – [14], [24].

(b)Andrews J heard and dismissed an originating application to set aside the defamation judgment on grounds of alleged fraud identical to those now advanced, except as to one new point: [13], [16] – [18], [25].

(c) The new point - evidence adduced by Mr Siemer on the over-charging issue – could and should have been put to Andrews J in the originating proceeding and it is too late for Mr Siemer to attempt to rely on it now: [30].

(d)The evidence falls far short of establishing an arguable case of conscious and deliberate dishonesty by the plaintiffs justifying the setting aside of a perfected judgment from which appeals have failed: [31] – [32].

(e) In any event, the evidence on the over-charging issue does not assist Mr Siemer to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clayton v Clayton

Details

AGLC: Clayton v Clayton [2013] NZHC 301
Case: [2013] NZHC 301
Decision Date: 22 February 2013

CaseChat Overview and Summary

Vincent Siemer has applied for an order recalling or setting aside a judgment of Cooper J dated 23 December 2008, on the basis that it was obtained by fraud. This application raises the following issues: (a) whether Mr Siemer’s criticisms of Cooper J’s findings in the defamation judgment have been addressed and disposed of by the Court of Appeal and Supreme Court; (b) whether any new grounds raised by Mr Siemer justify setting aside the defamation judgment on the grounds of fraud; and (c) whether this proceeding should have been struck out without a hearing because Mr Siemer has been debarred from defending the defamation proceedings. The Court found that Mr Siemer’s criticisms of Cooper J’s findings in the defamation judgment had been addressed and disposed of by the Court of Appeal and the Supreme Court. Andrews J had heard and dismissed an originating application to set aside the defamation judgment on grounds of alleged fraud, identical to those now advanced, except as to one new point. The new point - evidence adduced by Mr Siemer on the over-charging issue - could and should have been put to Andrews J in the originating proceeding and it was too late for Mr Siemer to attempt to rely on it now. The evidence fell far short of establishing an arguable case of conscious and deliberate dishonesty by the plaintiffs justifying the setting aside of a perfected judgment from which appeals have failed. In any event, the evidence on the over-charging issue did not assist Mr Siemer to establish that the judgment was founded on that point. The evidence would not have altered the outcome of the defamation proceeding so it could not have reasonably justified any challenge to it, and Mr Siemer had been debarred from raising such matters in any event. Because of these findings, it was unnecessary for the Court to determine whether this application should have been struck out immediately after it was filed because of Potter J’s order debarring Mr Siemer from defending the defamation proceeding until further order of the Court. For these reasons, the Court dismissed the application but reserved the issue of costs for further submissions. The Court also made an order prohibiting Mr Siemer from filing any further documents in this Court for the purpose of challenging the defamation judgment and this judgment. His right of appeal against this judgment was not affected.

Orders