Siemer v Official Assignee - [2012] NZHC 991

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-1709 [2012] NZHC 991

UNDER the Judicature Amendment Act 1972

IN THE MATTER OF an application for Judicial Review

BETWEEN VINCENT ROSS SIEMER Plaintiff

ANDOFFICIAL ASSIGNEE First Defendant

ANDKATE FARDELL Second Defendant

Hearing: 29 March 2012

Appearances: Plaintiff in person
B J Upton for the First Defendant
No appearance by or on behalf of the Second Defendant

Judgment: 11 May 2012

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on 11 May 2012 at 3 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Simpson Grierson, Private Bag 92158, Auckland 1141
Copy To: V Siemer, Auckland.

SIEMER v OFFICIAL ASSIGNEE HC AK CIV-2010-404-1709 [11 May 2012]

[1] This decision relates to applications for particular discovery made by Mr Siemer in the context of his application for judicial review of a decision of the Official-Assignee made on 25 August 2009 not to assign back to him his claim in Siemer v Fardell (the Fardell proceedings).1 That claim essentially concerned an allegation that the late Mr Fardell QC had given negligent advice to Mr Siemer and his wife in relation to the affairs of Paragon Service Limited, a company in which the
Siemers had invested. Breach of fiduciary duty was also alleged. Substantial losses were pleaded and a commensurate amount of damages was claimed.2

[2] It is necessary to set out the background to the present application in some detail.

[3] The Fardell proceedings were commenced in 2003. Due to Mr Siemer’s failure to pay costs awarded against him in those and related proceedings, Mrs Fardell applied for security for costs in 2007. It was in the context of that application that the merits of the Siemers’ claim (in its then form) were canvassed in a general way by Associate Judge Abbott.3 It is relevant for present purposes that at [42] of his judgment Judge Abbott said:

[42] The Siemers also face a substantial hurdle in proving that any advice or action by Mr Fardell was the cause of their loss. As I have said, it is difficult to see that the steps which they contend should have been taken would have achieved anything more. The biggest component of their claim ($750,000) is for loss of technology. Counsel referred me to an affidavit by Mr Siemer filed in the s 174 proceeding in which Mr Siemer acknowledged that the industrial process in which he was investing was still in the development phase, and said that if the matter proceeded to trial, the defendant would be leading expert evidence that “there was no magic in the industrial formula” and that equivalents were available on the internet.

[4] On 8 November 2008, Mr Siemer was adjudicated bankrupt. The Fardell proceedings had not been heard and therefore vested in Mr Siemer’s estate in bankruptcy. The Official-Assignee was charged with deciding whether to progress Mr Siemer’s claim in the Fardell proceedings and, if not, whether to assign that
claim back…

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 Official Assignee

Details

AGLC: Siemer v Official Assignee [2012] NZHC 991
Case: [2012] NZHC 991
Decision Date: 11 May 2012

CaseChat Overview and Summary

In Siemer v Official Assignee, the High Court of New Zealand was asked to decide whether the plaintiff, Mr Siemer, was entitled to particular discovery in the form of detailed time and attendance invoicing from Simpson Grierson in relation to the proceedings. The Court was required to decide whether the timesheets were relevant to the proceedings and whether they were protected by privilege. The Court held that the timesheets were not relevant to the proceedings and, therefore, not required to be disclosed. The Court also held that the timesheets were protected by privilege, but this was unnecessary to decide given the conclusion that they were not relevant. The Court declined the application for particular discovery and awarded costs to the Official Assignee.

The Court's reasoning was based on the fact that the timesheets could only arguably be relevant to the second matter, which was the allegation that the Official Assignee and his counsel had deceived the Court. However, the view expressed by Mr Viljoen, the Official Assignee, coincided with that of his legal advisers and the Associate Judge Abbott. It was open to Mr Siemer to try and establish that the view was dishonestly held, but he already had the relevant documentation in that respect. The proposition that Simpson Grierson's timesheets might constitute relevant evidence of any kind was, in the Court's view, untenable. The Court also noted that the allegation of dishonesty was serious and not to be made without foundation. In this case, there was an adequate basis for Mr Viljoen's opinion and it would be quite unreasonable to draw any inference that was adverse to counsel merely from the fact that Mr Viljoen's opinion coincided with that earlier expressed of Simpson Grierson.

Orders