Siemer v Ferrier Hodgson - [2008] NZCA 255

IN THE COURT OF APPEAL OF NEW ZEALAND
CA226/07
[2008] NZCA 255
BETWEENVINCENT ROSS SIEMER

Appellant

ANDFERRIER HODGSON

First Respondent
ANDMICHAEL PETER STIASSNY

Second Respondent

Hearing:24 July 2008

Court:Hammond, Panckhurst and Miller JJ
Counsel:Appellant in person, by written submissions

J G Miles QC and P J L Hunt for Respondents

Judgment:24 July 2008 at 2.15pm

ORAL JUDGMENT OF THE COURT

AWe strike out those paragraphs in Mr Siemer’s submissions set out in [24] of this judgment.

B The appeal is dismissed.
CThe respondent will have costs on a 1A basis under the Court of Appeal (Civil) Amendment Rules (No 2) 2008, plus reasonable disbursements. The respondent will have an additional sum of $2,000 for the various appearances on the request for an adjournment, and associated therewith.

REASONS OF THE COURT
(Given by Hammond J)
Introduction
[1]       Mr Siemer appeals against a number of interlocutory rulings given by Rodney Hansen J in a judgment delivered on 19 April 2007: HC AK CIV 2005-404-1808.
Background
[2]       Ferrier Hodgson is a firm of chartered accountants. Mr Stiassny is a principal in that firm.
[3]       In December 2000, Mr Stiassny was appointed as the receiver of Paragon Services Limited (Paragon). There had been disputes between the shareholders in that company, one of whom was Mr Siemer. Mr Stiassny was appointed as receiver primarily for the purpose of protecting certain intellectual property. The shareholder disputes were resolved during 2001. At that time Mr Siemer became the sole shareholder. The receivership then terminated. One of the terms of an agreement which compromised the underlying dispute was a confidentiality provision relating to any matter arising in or from the receivership, including the fact of settlement.
[4]       Mr Siemer had, and still maintains, various complaints over Mr Stiassny’s conduct of the receivership. In April 2005, Mr Siemer caused a billboard to be emplaced in a prominent position in central Auckland. The billboard included the name and picture of Mr Stiassny, and referred viewers to a website which was distinctly critical of Mr Stiassny.
[5]       Mr Stiassny thereupon sought and obtained an ex parte injunction which provided for the removal of the objectionable material from the website, and the removal of the billboard. There were also restraints on reinstating those information sources.
[6]       There was apparently some initial compliance with these orders. But thereafter Mr Siemer did not comply with the orders which had been made. Then followed a series of proceedings and hearings which led to Mr Siemer being committed for contempt, and serving a term of imprisonment for that contempt. Alleged continuing breaches have since led to an application by the Solicitor-General for Mr Siemer’s “permanent” committal to prison for contempt. That application has been heard and determined by a Full Court of the High Court: CIV 2008-404-42 July 8 2008. In the simplest terms, Mr Siemer has been given until 1 August to “clean up” the relevant offending material. There is a clear signal that further imprisonment will follow in the event of non-compliance.
[7]       For…

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 Siemer v Ferrier Hodgson

Details

AGLC: Siemer v Ferrier Hodgson [2008] NZCA 255
Case: [2008] NZCA 255
Decision Date: 24 July 2008

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Siemer v Ferrier Hodgson (CA226/07) was heard. The appellant, Vincent Ross Siemer, appealed against a number of interlocutory rulings given by Rodney Hansen J in a judgment delivered on April 19, 2007. The legal issues in this case revolved around the admissibility of certain pleadings and the scope of discovery in a defamation case. The Court of Appeal had to determine whether the lower court was correct in striking out certain paragraphs in the appellant's pleadings, as well as whether the appellant was entitled to further and better discovery from the respondents.

The Court of Appeal found that the lower court was correct in striking out certain paragraphs in the appellant's pleadings. The Court held that the appellant's pleadings contained irrelevant, scandalous, and gratuitous ad hominem attacks on the individuals involved in the case. The Court also found that the appellant's attempt to introduce matters unrelated to the specific receivership in question was not appropriate and that the pleadings were struck out correctly. In terms of discovery, the Court of Appeal found that the lower court was correct in ruling that the documents sought by the appellant were not relevant to the matters in issue in the proceedings.

The Court of Appeal dismissed the appeal and ordered that the respondent would have costs on a 1A basis plus reasonable disbursements. The Court also noted that the advancement of the merits of this dispute had been distinctly delayed by the difficulties created by and associated with this appeal.

Orders