Siemer v Stiassny - [2010] NZSC 57

IN THE SUPREME COURT OF NEW ZEALAND
SC 8/2010
[2010] NZSC 57

BETWEENVINCENT ROSS SIEMER

Applicant

ANDMICHAEL PETER STIASSNY AND ANOR

Respondents

Court:Blanchard, Tipping and Wilson JJ
Counsel:Applicant in Person

J G Miles QC and P Hunt for Respondents

Judgment:20 May 2010

JUDGMENT OF THE COURT

Both applications for leave to appeal are dismissed.
REASONS
[1]        The respondents brought a proceeding against Mr Siemer for defamation and breach of a contract (a settlement agreement).
[2]        They obtained an interim injunction restraining Mr Siemer from publicising any information relating to them and directing him to remove a billboard and certain material from websites. He did not comply and was found by the High Court to have breached the injunctions. Potter J declared that he was in contempt of court, fined him and ordered him to pay costs.[1] That ruling was upheld on appeal.[2]
[1]Ferrier Hodgson v Siemer High Court Auckland CIV-2005-404-1808, 16 March 2006.
[2]      Siemer v Stiassny [2007] NZCA 117, [2008] 1 NZLR 150.
[3]        There was then an allegation of further breach of the injunction and an application for committal. That matter came again before Potter J who made an order debarring Mr Siemer from defending the proceeding.[3] That order was, as the Court of Appeal says in [11] of its present judgment,[4] made on the basis that Mr Siemer had continued deliberately breaching the injunction, as well as on the basis of his refusal to pay the costs award against him.[5] There was no appeal against Potter J's judgment.
[3]      Ferrier Hodgson v Siemer HC Auckland CIV-2005-404-1808, 9 July 2007.
[4]      Siemer v Stiassny [2009] NZCA 624.
[5] At [68].
[4]        At the hearing of the substantive proceeding, on which Mr Siemer did not appear, there was a formal proof by the plaintiffs. Cooper J found Mr Siemer to have defamed them and to be in breach of contract. He awarded damages totalling $920,000.[6]
[6]      Korda Mentha v Siemer HC Auckland CIV 2005-404-1808, 23 December 2008.
[5]        Mr Siemer appealed against Cooper J's judgment. That appeal was brought in time but the Case on Appeal was not filed and a fixture not sought within the requisite six months. However, the Court of Appeal reinstated the appeal. Having done so, it considered whether the appeal should nonetheless be struck out in whole or part. It declined to exercise its discretion to strike out the appeal on the ground of the existence of the debarment order but said that Mr Siemer remained in contempt and that in bringing the appeal he was in reality seeking to challenge the injunction which he had been disobeying. It also said that much of what the appellant wished to challenge on appeal was related to the limitations of the High Court hearing because of the debarment order, but that Mr Siemer sought to do this after the hearing to which the debarment order related, having passed up numerous opportunities to challenge it prior to, or at, the hearing. The Court…

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 Stiassny

Details

AGLC: Siemer v Stiassny [2010] NZSC 57
Case: [2010] NZSC 57
Decision Date: 20 May 2010

CaseChat Overview and Summary

In the case of Siemer v Stiassny, the applicant, Vincent Ross Siemer, appealed against a decision of the Court of Appeal which had dismissed his appeal against a finding of defamation and breach of a settlement agreement by the High Court. The respondents, Michael Peter Stiassny and another, sought to have the appeal dismissed on the basis that the Court of Appeal had correctly exercised its discretion in partially striking out the appeal. The legal issues before the Supreme Court were whether the Court of Appeal had erred in exercising its discretion to partially strike out the appeal and whether the Court of Appeal had otherwise made any errors in law.

The Supreme Court found that the Court of Appeal had exercised its discretion on a principled basis and in accordance with authority, and that there was no arguable ground upon which the Supreme Court could justifiably interfere with the Court of Appeal's decision. The Court found that Mr Siemer's arguments that the debarment order was based solely on his failure to pay costs, and that the Court of Appeal was disqualified from hearing the appeal because a previous judge had made findings against him, were without merit. The Court found that the debarment order was made on the basis of Mr Siemer's continuing failure to comply with the injunction, and that a judge's previous participation in a decision adverse to a litigant does not disqualify him or her from participating in a subsequent appeal. The Court also found that Mr Siemer's complaint about a finding of racist abuse was without merit as he remained able to ventilate that matter to the extent that it may have influenced the level of the damages award.

The Supreme Court dismissed both applications for leave to appeal and upheld the decision of the Court of Appeal. The final orders of the Supreme Court were that both applications for leave to appeal be dismissed.

Orders