Siemer v Stiassny - [2010] NZCA 607

IN THE COURT OF APPEAL OF NEW ZEALAND
CA692/2010
[2010] NZCA 607
BETWEENVINCENT ROSS SIEMER

Applicant

ANDMICHAEL STIASSNY

First Respondent
ANDKORDA MENTHA

Second Respondent

Hearing:30 November 2010

Court:Glazebrook, Arnold and Harrison JJ
Counsel:V R Siemer in person

P J Hunt for Respondents

Judgment:14 December 2010 at 9.30am

JUDGMENT OF THE COURT

A The application is dismissed.
BCosts for a standard application are awarded to the respondents on a band A basis and usual disbursements.

____________________________________________________________________
REASONS OF THE COURT
(Given by Glazebrook J)
Introduction
[1]        Mr Siemer applies for an extension of time under r 29A of the Court of Appeal Civil Rules (2005) to file an appeal against an order made in a Minute of Cooper J dated 29 July 2010 which struck out an application filed by Mr Siemer in the High Court to set aside a permanent injunction prohibiting Mr Siemer from publishing defamatory material about the respondents.
Procedural History
[2]        On 23 December 2008 Cooper J found Mr Siemer liable for both defamation and breach of contract and ordered Mr Siemer to pay the respondents damages. Cooper J also granted a permanent injunction prohibiting Mr Siemer from publishing defamatory material about the respondents (the 23 December judgment).[1]
[1]      Korda Mentha v Siemer HC Auckland CIV 2005-404-1808, 23 December 2008.
[3]        Mr Siemer sought to appeal against the 23 December 2008 judgment and the respondents applied to strike out the appeal. On 22 December 2009, this Court granted the application to strike out except to the extent it related to the quantum of damages awarded in favour of the respondents in the High Court.[2]
[2]      Siemer v Stiassny [2009] NZCA 624.
[4]        On 20 May 2010 the Supreme Court dismissed Mr Siemer’s application for leave to appeal the Court of Appeal’s strike out decision.[3]
[3]Siemer v Stiassny [2010] NZSC 57. The remaining parts of the appeal have been heard by this Court but a judgment has not yet been released.
[5]        On 28 July 2010 Mr Siemer filed an application in the High Court to set aside the permanent injunction granted in the 23 December judgment. On 29 July 2010 Cooper J issued an order made in a Minute striking out this application. It was stated that it was apparent from the terms of the application that Mr Siemer was attempting to pursue the same arguments that he had earlier raised with this Court. This meant that the application was vexatious and an abuse of process.
Grounds of Mr Siemer’s application
[6]        Mr Siemer’s grounds of application are:
(a)the Minute was purportedly issued the day after he filed and served the application;
(b)the Judge acted of his own volition in ordering the strike out, without application, notice or hearing;
(c)Mr Siemer was not informed of the order until 21 September 2010;
(d)Mr Siemer did not receive a written copy of the order until 30 September 2010.

Our assessment
[7] Mr Siemer submitted in the hearing before us that his application to the High 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] NZCA 607
Case: [2010] NZCA 607
Decision Date: 14 December 2010

CaseChat Overview and Summary

In the case of Siemer v Stiassny, the applicant, Vincent Ross Siemer, sought an extension of time to file an appeal against an order made by Cooper J which struck out an application filed by Mr Siemer in the High Court to set aside a permanent injunction prohibiting him from publishing defamatory material about the respondents. The Court of Appeal of New Zealand was tasked with determining whether the application should be allowed and whether the injunction was properly struck out.

The primary legal issue before the Court was whether the application to set aside the injunction was an abuse of process, given that Mr Siemer had already exhausted all rights of appeal in relation to the injunction. The Court also needed to determine whether the procedure followed by Cooper J in striking out the application was proper.

The Court found that Mr Siemer's application to the High Court was vexatious and an abuse of process, as he had already exhausted all rights of appeal in relation to the injunction. The Court noted that the injunction arose from Cooper J's judgment on defamation, which had only a limited right of appeal. The Court further found that the procedure followed by Cooper J in striking out the application was proper, as the Court has the ability under its inherent jurisdiction to strike out proceedings that amount to an abuse of process. Therefore, the application was dismissed, and costs for a standard application were awarded to the respondents on a band A basis and usual disbursements.

Orders