Appearances: Plaintiff in Person
T Clarke for First and Third Defendants
D Salmon and D Nilsson for Second Defendant
P Wicks for Fourth and Fifth Defendants

Judgment: 28 June 2013

RESERVED JUDGMENT OF ASSOCIATE JUDGE SARGISSON (Strike out/security for costs application)

This judgment was delivered by me on 28 June 2013 at 4.30 pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date ..........................

SIEMER v HERON [2013] NZHC 1604 [28 June 2013]

[1] In this proceeding, commenced on 5 November 2012 the plaintiff, Mr Siemer, sues five defendants. His statement of claim relies on two causes of action, the first alleges assault and battery and the second alleges breaches of directors’ duties under the Companies Act 1993.

[2] The first and third defendants, Mr Heron and Russell McVeagh respectively, apply to strike out Mr Siemer’s claim in so far as it relates to them. By similar applications, the second, fourth and fifth defendants, Messrs Stiassny, Tanaki and Sami respectively, seek identical relief. In the event that Mr Siemer’s claim survives, Mr Heron, Russell McVeagh and Mr Stiassny apply for orders for security for costs against him. In their written submissions, Mr Heron and Russell McVeagh also “seek an order debarring Mr Siemer from filing any further court documents in connection with this proceeding without the leave of the Court”.

[3] Mr Siemer opposes the making of such orders.

Preliminary

[4] At the commencement of the hearing, Mr Siemer raised as a preliminary issue that the defendants’ strike out applications should be heard in open court and not in chambers to allow members of the public to attend should they so choose.

[5] After discussion with Mr Siemer and counsel I directed that the hearing proceed in open court for chambers to accommodate, as far as I am able within the limits of an Associate Judge’s jurisdiction, Mr Siemer’s request that the hearing be in open court. The direction was made with the consent of all of the defendants’ counsel.

[6] Mr Siemer has asked that I record that the above direction was made after 10 am. As I understand his concern, any members of the public who may have wished to attend the hearing would have left by the time the decision to sit in open court for chambers had been made.

[7] It is also appropriate to record that I am exercising the court’s chambers’ jurisdiction in dealing with the present applications. The parties’ rights of review are not therefore intended to be affected.

Defendants’ applications: procedural context

[8] The strike out applications, filed in December 2012, arise in the context of a broader litigation history than is not immediately apparent from Mr Siemer’s statement of claim. The claim is…

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 [2013] NZHC 1604
Case: [2013] NZHC 1604
Decision Date: 28 June 2013

CaseChat Overview and Summary

In Siemer v Heron, Mr Siemer filed a proceeding against five defendants. The proceeding was struck out and the plaintiff was debarred from filing any further documents in the court without leave of the court. The plaintiff sued the five defendants for assault and battery, and breaches of the Companies Act. The defendants applied to strike out the proceeding on the grounds that it was an abuse of process. The plaintiff opposed the applications. The court found that the proceeding was an abuse of process because the plaintiff had already filed similar proceedings and failed to pay security for costs in previous proceedings. The plaintiff also failed to bring his whole case in previous proceedings. The court exercised its inherent jurisdiction to prevent the plaintiff from wasting the court's time and resources by making an order that the Registrar of the court shall refuse to receive for filing any document which the plaintiff may attempt to file in the court in the proceeding or any other, the purpose of which is to challenge any aspect of the judgment of the court in the proceeding dated 23 December 2008, or any subsequent judgment, order, or direction of any court related to it. The court found that it was not appropriate to make an order of the nature that the defendants sought because they failed to provide the plaintiff with sufficient notice to prepare for an order of undoubted significance. The court ordered that the plaintiff's statement of claim in the proceeding was struck out as it was an abuse of the process of the court. Costs followed the event.

Orders