Siemer v Stiassny

[2011] NZCA 144

IN THE COURT OF APPEAL OF NEW ZEALAND

CA718/2010
[2011] NZCA 144

BETWEEN  VINCENT ROSS SIEMER
First Appellant

AND  JANE DINSDALE SIEMER
Second Appellant

AND  MICHAEL PETER STIASSNY
First Respondent

AND  FERRIER HODGSON AND CO LIMITED
Second Respondent

AND  THE ATTORNEY-GENERAL OF NEW ZEALAND
Third Respondent

AND  DAVID COLLINS
Fourth Respondent

AND  JUDICIAL CONDUCT COMMISSIONER
Fifth Respondent

AND  CHIEF JUSTICE OF NEW ZEALAND
Sixth Respondent

Court:             O'Regan P, Hammond and Arnold JJ

Counsel:         Appellant in person
A M Powell for Third Respondent

Judgment:      11 April 2011 at 10 am

(on the papers)

JUDGMENT OF THE COURT

AThe first appellant’s application to recall the judgment in [2011] NZCA 1 is declined.

BThe first appellant must pay the Attorney-General costs on the same basis as for an application for leave to appeal on a band A basis, plus usual disbursements.

REASONS OF THE COURT
(Given by Arnold J)

1. The first appellant, Mr Siemer, has applied to recall the Court’s judgment of 3 February 2011.[1]  He argues that the judgment is “demonstrably inaccurate, as well as legally defective and unsafe” and seeks to challenge the Court’s reasoning in various respects.

   [1]      Siemer v Stiassny [2011] NZCA 1.

2. On behalf of the Attorney-General, Mr Powell has filed a memorandum opposing Mr Siemer’s application.  The effect of his submission is that Mr Siemer is misusing the recall jurisdiction by attempting to challenge the findings made by the Court in its decision.

3. In Erwood v Maxted this Court explained the recall jurisdiction[2] and provided guidance as to its operation. [3]  This application falls well outside the guidelines and is effectively an attempt to re-argue the appeal.  Accordingly we accept Mr Powell’s submissions.

   [2]      Erwood v Maxted [2010] NZCA 93 at [3] – [5].

   [3] At [23].

4. The application is declined.  Mr Siemer must pay costs to the Attorney-General on the same basis as for an application for leave to appeal on a band A basis, plus usual disbursements.

Solicitors:
Crown Law Office, Wellington for Third Respondent.