Siemer v Stiassny - [2011] NZCA 466

IN THE COURT OF APPEAL OF NEW ZEALAND

CA262/2011
[2011] NZCA 466

BETWEEN VINCENT ROSS SIEMER
Appellant

AND MICHAEL PETER STIASSNY AND KORDA MENTHA
Respondents

Hearing: 13 September 2011

Court: O'Regan P, Glazebrook and Harrison JJ

Counsel: Appellant in person
P J L Hunt for the Respondents

Judgment: 16 September 2011 at 10.00 am

JUDGMENT OF THE COURT

AThe application to strike out the appeal is granted.
BThe appellant is ordered to pay costs to the respondents on an indemnity basis together with usual disbursements.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

The respondents, Michael Stiassny and Korda Mentha, apply to strike out a notice of appeal filed by the appellant, Vincent Siemer.

Background

Mr Siemer has filed an appeal against a decision made in the High Court at Auckland. On 17 March 2011, Cooper J, of his own motion, struck out an application filed by Mr Siemer on 7 March.[1] Mr Siemer sought to “vary or set aside or rescind” a permanent injunction granted by Cooper J in the respondents’ favour on 23 December 2008.[2] That reasoned decision followed trial of the respondents’ claim against Mr Siemer and, in addition to the injunctive relief, Cooper J entered judgment for damages and costs. The injunction prohibited Mr Siemer from publishing specified defamatory material about the respondents.
[1] Korda Mentha v Siemer HC Auckland CIV-2005-404-1808, 17 March 2011.
[2] Korda Mentha v Siemer HC Auckland CIV-2005-404-1808, 23 December 2008.
Mr Siemer appealed Cooper J’s 23 December 2008 judgment. On 22 December 2009 this Court granted the respondents’ application to strike out Mr Siemer’s appeal except in relation to the quantum of the damages award.[3] On 20 May 2010 the Supreme Court dismissed Mr Siemer’s application for leave to appeal that decision.[4]
[3] Siemer v Stiassny [2009] NZCA 624.
[4] Siemer v Stiassny [2010] NZSC 57.
On 28 July 2010 Mr Siemer filed an application in the High Court to set aside the 23 December 2008 injunction. On 29 July 2010, without hearing from the parties, Cooper J made an order striking out Mr Siemer’s application. He was satisfied that it was an attempt to re-litigate the issues which were decided by his substantive judgment; and that the application was vexatious and an abuse of process. On 14 December 2010 this Court dismissed Mr Siemer’s application for an extension of time to appeal.[5] On 9 May 2011 the Supreme Court dismissed Mr Siemer’s application for leave to appeal,[6] expressing its agreement with this Court that Mr Siemer’s proposed appeal was an abuse of process.[7]

Decision

[5] Siemer v Stiassny [2010] NZCA 607.

[6] Siemer v Stiassny [2011] NZSC 47.

[7] At [2].

In opposition to the respondents’ application to strike out his latest appeal, Mr Siemer submitted that his 7 March 2011 application was not another attempt to re-litigate issues determined finally in the 23 December 2008 judgment. He emphasised that he applied to vary the injunction in the alternative to setting aside or rescinding 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.

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Details

Case: [2011] NZCA 466
Decision Date: 16 September 2011

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an application by Michael Peter Stiassny and Korda Mentha to strike out an appeal filed by Vincent Ross Siemer. The appeal was against a decision made by the High Court at Auckland which granted a permanent injunction to Stiassny and Korda Mentha. The injunction prohibited Siemer from publishing specified defamatory material about the respondents. Siemer had previously appealed against the High Court's decision, which this Court had struck out in part. The latest appeal sought to vary or set aside the permanent injunction, but Siemer did not identify the nature and extent of the variation sought. The Court found the appeal to be vexatious and an abuse of process, as it was a further attempt to re-litigate issues that had already been finally determined. Accordingly, the respondents' application to strike out the appeal was granted, and Siemer was ordered to pay costs to the respondents on an indemnity basis together with usual disbursements.

The legal issues before the Court included whether Siemer's latest appeal was a further attempt to re-litigate issues that had already been finally determined, and whether the High Court judge had jurisdiction to strike out Siemer's application without hearing from the parties. The Court found that Siemer's appeal was vexatious and an abuse of process, as it was essentially based on a challenge to the merits of the previous judgment. The Court also found that the High Court judge had inherent jurisdiction to prevent an abuse of its process, and that Siemer's application to vary the injunction was essentially based on a challenge to the merits of the previous judgment.

The Court of Appeal of New Zealand granted the respondents' application to strike out Siemer's appeal. The Court found that Siemer's appeal was vexatious and an abuse of process, as it was a further attempt to re-litigate issues that had already been finally determined. The Court also found that the High Court judge had inherent jurisdiction to prevent an abuse of its process, and that Siemer's application to vary the injunction was essentially based on a challenge to the merits of the previous judgment. Accordingly, the respondents' application was granted, and Siemer was ordered to pay costs to the respondents on an indemnity basis together with usual disbursements.

Orders