Siemer and Siemer v Stiassny - [2009] NZCA 571

IN THE COURT OF APPEAL OF NEW ZEALAND
CA454/2009
[2009] NZCA 571
BETWEENVINCENT ROSS SIEMER

First Appellant
ANDJAN DINSDALE SIEMER

Second Appellant

ANDMICHAEL PETER STIASSNY

First Respondent
ANDFERRIER HODGSON AND CO LTD

Second Respondent
ANDTHE ATTORNEY-GENERAL OF NEW ZEALAND

Third Respondent
ANDDAVID COLLINS

Fourth Respondent
ANDJUDICIAL CONDUCT COMMISSIONER

Fifth Respondent
ANDCHIEF JUSTICE OF NEW ZEALAND

Sixth Respondent

Hearing:1 December 2009

Court:O'Regan, Robertson and Baragwanath JJ
Counsel:Appellant in person

R E Harrison QC as Amicus
G R Nicholson and C R Prew for Judicial Conduct Commissioner
A M Powell for Third Respondent

Judgment:7 December 2009 at 3.30 p.m.

JUDGMENT OF THE COURT

A            An extension of time for appealing is granted until now.
B            Timetabling of the progress of the appeal will operate from today.
C            We make no order as to costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
Introduction
[1]        Mr Siemer filed an appeal against directions contained in a Minute issued by Priestley J on 16 October 2008: HC AK CIV 2008-404-6822 16 October 2008. He states in his notice of appeal that he also appeals against subsequent casemanagement Minutes issued by Associate Judge Doogue on 28 October 2008, and 26 and 27 November 2008.
[2]        The appeal was filed on 16 January 2009. Taken from the date of Priestley J’s Minute, that is outside the 20 working days allowed under the Court of Appeal (Civil) Rules 2005, r 29. Mr Siemer therefore requires an extension of time for appealing.
Background
Harrison J’s strike out
[3]        In January 2008, Mr Siemer filed a statement of claim naming as defendants Mr Michael Stiassny, Ferrier Hodgson & Co Ltd, and the Crown. That statement of claim pleaded three causes of action: conspiracy to defeat the course of justice, systematic deprivation of Mr Siemer’s rights under the New Zealand Bill of Rights Act 1990 and the Common Law, and conspiracy between Mr Stiassny and Ferrier Hodgson to bring a false claim against Mr Siemer. The defendants applied to strike out the statement of claim.
[4]        On 18 March 2008, just before the applications to strike out were to be heard, Mr Siemer filed a second statement of claim, to which he added three additional defendants: the Solicitor-General personally, the Judicial Conduct Commissioner and the Chief Justice. Mr Siemer also added two additional causes of action: misfeasance in public office and malicious prosecution. The new causes of action related only to the new defendants.
[5]        Harrison J struck out the proceeding: HC AK CIV 2008-404-0104 20 March 2008. He held:
[7]         … The documents seek to raise again for argument issues which are already the subject of judicial determination. They seek the collateral advantage of re-litigating complaints under the new guises of allegations of conspiracy, breach of the New Zealand Bill of Rights Act etc. To that extent they stem from an improper motive and are in themselves an abuse of process.
[8]         The documents are also scandalous. On their face, the allegations or so-called particulars, are irrelevant to any…

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.

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Details

Case: [2009] NZCA 571
Decision Date: 7 December 2009

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal filed by Vincent Ross Siemer and Jan Dinsdale Siemer against Michael Peter Stiassny, Ferrier Hodgson & Co Ltd, the Attorney-General of New Zealand, and others. Mr Siemer sought an extension of time for appealing against certain case management directions issued by Priestley J in October 2008. The appeal was initially filed outside the 20 working days allowed under the Court of Appeal (Civil) Rules 2005, r 29. The central issue was whether Mr Siemer's delay in filing the appeal had caused prejudice to the respondents, and whether the directions issued by Priestley J were substantive enough to warrant an appeal. The Court found that Mr Siemer's delay had not prejudiced the respondents, and that the directions had a significant impact on the progress of the case, making them appealable.

The Court of Appeal considered the background of the case, which involved multiple statements of claim filed by Mr Siemer against various defendants, including judicial officers and the Crown. These claims were ultimately struck out by Harrison J and later by Winkelmann J. The Court noted that the claims appeared to be an attempt to re-litigate issues already decided by New Zealand courts and constituted an abuse of process. The Court of Appeal concluded that granting the extension of time for appealing was appropriate given that the underlying action had been terminated by strike-out, and if an appeal against the recent judgment was to proceed, both matters should be heard together.

The Court granted the extension of time for appealing until the present date and established the timetabling of the progress of the appeal from that day forward. The Court made no order as to costs. The decision demonstrates the Court of Appeal's willingness to consider the granting of an extension of time in appropriate circumstances, while also highlighting the importance of adhering to procedural timelines in legal proceedings.

Orders