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Siemer v Stiassny

Siemer v Stiassny

Case [2011] NZCA 1 3 February 2011

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA718/2010 [2011] NZCA 1

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

Hearing:

27 October 2010

Court: O'Regan P, Hammond and Arnold JJ

Counsel: Appellant in person
A M Powell for Fourth Respondent

Judgment: 3 February 2010 at 4 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.

BThe appellants must pay the fourth respondent costs for a standard appeal on a band A basis and usual disbursements.

VINCENT ROSS SIEMER V MICHAEL PETER STIASSNY CA718/2010 [3 February 2010]

REASONS OF THE COURT

(Given by Arnold J)

Introduction

[1] The first appellant, Mr Siemer, is a frequent litigant in the New Zealand courts. Most of the various proceedings in which he is or has been a party stem from the conduct of the receivership of a company, Paragon Oil Ltd, in which Mr Siemer and his wife were significant shareholders and Mr Siemer was Managing Director. The receiver was Mr Michael Stiassny, of Korda Mentha (previously Ferrier Hodgson).

[2] A dispute arose because Mr Siemer was unhappy with the way the receivership was conducted and the fees charged. Although the parties settled the dispute and entered into a written settlement agreement, Mr Siemer embarked on a public campaign attacking Mr Stiassny’s competence and integrity. Mr Stiassny and Korda Mentha sued Mr Siemer both for breach of the settlement agreement and in
defamation and obtained an award of damages totalling $920,000.[1] That award is

currently under appeal to this Court.

[1] Korda Mentha formerly Ferrier Hodgson v Siemer HC Auckland CIV-2005-404-1808,

23 December 2008 at [90]–[91].

[3] In the course of the proceedings, Mr Stiassny obtained interim injunctions initially from Winkelmann J and later from Ellen France J[2] preventing Mr Siemer from continuing with certain conduct. Mr Siemer breached these injunctions and as a consequence was convicted of contempt of court in proceedings issued by the Solicitor-General.[3]

[2] Ferrier Hodgson v Siemer HC Auckland CIV-2005-404-1808, 5 May 2005.

[3] Solicitor-General v Siemer HC Auckland CIV-2005-404-472, 8 July 2008. This ultimately went to the Supreme Court – see Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767.

[4] On 9 January 2008 Mr Siemer issued proceedings against Mr Stiassny, Ferrier Hodgson and the Solicitor-General, alleging that they were parties to a

conspiracy to defeat the course of justice, deprive Mr Siemer of his legal rights and bring false allegations against him. Harrison J struck these proceedings out on the ground that the pleadings were irreparably defective, were designed to embarrass and were an abuse of process.[4] The Judge noted that Mr Siemer’s pleadings contained personal attacks on the integrity, fitness for office and competence of Judges of the High Court, this Court and the Supreme…

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 [2011] NZCA 1
Case: [2011] NZCA 1
Decision Date: 3 February 2011

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Siemer and his wife brought an appeal against the decision of Winkelmann J, who had struck out their proceedings against various respondents, including the Solicitor-General, the Attorney-General, the Judicial Conduct Commissioner, and the Chief Justice of New Zealand. The Siemers had initiated these proceedings to challenge the conduct of the receivership of Paragon Oil Ltd, where they were significant shareholders and Mr Siemer was the Managing Director. The Siemers argued that the respondents were parties to a conspiracy to defeat the course of justice, deprive them of their legal rights, and bring false allegations against them. The High Court judge, Harrison J, had previously struck out similar proceedings brought by Mr Siemer on the grounds that the pleadings were irreparably defective, designed to embarrass, and an abuse of process. The Siemers filed fresh proceedings against the same parties, along with new defendants, but these were also struck out by Winkelmann J on the grounds that they were a collateral attack on the outcomes and processes of earlier proceedings, could not succeed, and had manifest deficiencies.

The Court of Appeal considered the appeal against the strike-out order and the directions made by Priestley J. The Court concluded that Winkelmann J was right to strike out the proceedings in their entirety. The Court found that the power to strike out a proceeding under r 15.1 of the High Court Rules does not depend upon an application having been made, and Winkelmann J had the power to strike out the proceedings irrespective of any application, provided she concluded that they were an abuse of process. The Court also found that the causes of action in the statement of claim were unarguable, except for the Siemers' claim against the Attorney-General arising out of the alleged breach of their rights by the police in the course of the search of their home. However, as the Siemers had already initiated proceedings in the District Court in relation to the search, the Court considered that the statement of claim would have to be radically redrawn to remove the objectionable elements. In these circumstances, the Court considered that the proceedings should be struck out in their entirety, but without prejudice to the Siemers' right to pursue their claims arising out of the search of their home in either the District Court or the High Court.

The appeal was dismissed, and the appellants were ordered to pay the fourth respondent costs for a standard appeal on a band A basis and usual disbursements.

Orders