Siemer v Stiassny

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)

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.
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.
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].
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.

CaseChat Overview and Summary

Vincent Ross Siemer and Jane Dinsdale Siemer appealed against a judgment from the New Zealand High Court in a matter that involved various parties including Michael Peter Stiassny, Ferrier Hodgson and Co Limited, the Attorney-General of New Zealand, and others. The dispute involved complex legal issues that were addressed in a previous appeal, Siemer v Stiassny [2011] NZCA 1. The Siemers sought to recall the Court of Appeal's judgment, arguing it was inaccurate and legally defective.

The legal issue before the Court of Appeal was whether the Siemers' application to recall the judgment was appropriate. The Siemers contended that the earlier judgment contained significant errors and was unsafe. The Attorney-General, represented by A M Powell, opposed the application, arguing that the Siemers were misusing the recall jurisdiction to re-argue the appeal rather than addressing genuine errors in the judgment. The Court had to determine whether the Siemers' application was within the scope of the recall jurisdiction, which is narrowly defined and intended for correcting genuine errors in the judgment.

The Court of Appeal found that the Siemers' application did not fall within the narrow scope of the recall jurisdiction. It was effectively an attempt to re-argue the appeal rather than address genuine errors in the judgment. The Court relied on the principles established in Erwood v Maxted, which clarified the operation of the recall jurisdiction. Since the application did not meet the criteria for recall, the Court declined the application. Additionally, the Court ordered the Siemers to pay costs to the Attorney-General on the basis of an application for leave to appeal on a band A basis, along with usual disbursements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established