Siemer v Heron - [2014] NZHC 1639

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-006587 [2014] NZHC 1639

BETWEEN
VINCENT ROSS SIEMER

Plaintiff

AND

MICHEAL RICHARD HERON First Defendant

MICHAEL PETER STIASSNY Second Defendant

RUSSELL McVEAGH Third Defendant

SIONE TANAKI Fourth Defendant

PIO SAMI

Fifth Defendant

Hearing: On the papers

Judgment:

14 July 2014

JUDGMENT OF ASHER J

This judgment was delivered by me on Monday, 14 July 2014 at 1pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Bell Gully, Auckland.

Copy to:
V Siemer, Gulf Harbour.

SIEMER v HERON [2014] NZHC 1639 [14 July 2014]

Introduction

[1] Vincent Ross Siemer has been declared a vexatious litigant pursuant to s 88B(1) of the Judicature Act 1908. 1 That section provides that a vexatious litigant may not commence or continue proceedings except by leave of the High Court. Mr Siemer seeks such leave in these proceedings. The test for leave is set out in s 88B(2) which provides:

88B Restriction on institution of vexatious actions

…

(2) Leave may be granted subject to such conditions (if any) as the Court or Judge thinks fit and shall not be granted unless the Court or Judge is satisfied that the proceeding is not an abuse of the process of the Court and that there is prima facie ground for the proceeding.

[2] It follows that leave may be granted only if:

(a) The proceeding is not an abuse of the process of the Courts; and

(b) There is a prima facie ground for the proceeding.

[3] The jurisdiction has been carefully considered in two decisions of Re Collier.2 I gratefully adopt the summary in McGechan on Procedure which elicits from those cases the principles that apply to this application, two of which I set out:3

While the application should generally be dealt with on a without notice basis, the Court has inherent jurisdiction to direct service on the Attorney-General and the proposed defendant. However, neither the Attorney nor the intended defendant should lightly be troubled by the application.

The discretion to grant leave is to be exercised very carefully because,
ex hypothesi, the applicant is a vexatious litigant.

District Court proceedings

[4] The current proceedings arise from an incident that is alleged to have occurred in October 2007. Mr Siemer, who was a shareholder of Vector Ltd at the

1      Attorney-General v Siemer [2014] NZHC 859 at [198].
2      Re Collier [2004] NZAR 472 (HC), and Re Collier [2008] 2 NZLR 505 (HC).
3      McGechan on Procedure (online looseleaf ed, Brookers) at [J88B.08].

time, claims that he was prevented from attending a shareholder meeting of that company.

[5] Following this incident, he brought a claim in the District Court on 11 March

2008. Mr Siemer sought damages for assault against a variety of defendants he claimed were either personally or vicariously responsible. However, an order was made that Mr Siemer pay $20,000 for security for costs. This order was appealed all the way to the Supreme Court, who ultimately upheld the…

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 Heron

Details

AGLC: Siemer v Heron [2014] NZHC 1639
Case: [2014] NZHC 1639
Decision Date: 14 July 2014

CaseChat Overview and Summary

Vincent Ross Siemer, declared a vexatious litigant, seeks leave to proceed with proceedings against various defendants, alleging assault and breach of directors' duties. The defendants argue that the proceedings are an abuse of process and vexatious. The court must decide whether Siemer's application for leave complies with the stringent requirements of section 88B of the Judicature Act 1908. The court must determine if Siemer's application is not an abuse of the court process and if there is a prima facie ground for the proceeding.

The court found that the current proceeding is an abuse of the court process. It was the third attempt by Siemer to litigate the same issue, and he failed to show that the proceedings were not an abuse. The issues had been effectively decided procedurally when Siemer discontinued or abandoned them in the face of orders to pay security for costs. Siemer chose to let those proceedings end rather than pay the security, and now he starts a third time without offering security. As a vexatious litigant, Siemer bears the burden of showing that these proceedings are not an abuse of procedure, which he has failed to do. The court concluded that these proceedings are a third attempt to litigate the same issue and an attempt to sidestep costs orders, and as such an abuse of the court process.

The application for leave to proceed with the review is declined.

Orders