Siemer v Stiassny - [2010] NZCA 81

IN THE COURT OF APPEAL OF NEW ZEALAND
CA20/2010
[2010] NZCA 81
BETWEENVINCENT ROSS SIEMER

Applicant

ANDMICHAEL PETER STIASSNY

First Respondent
ANDKORDA MENTHA LIMITED

Second Respondent

Court:Hammond, O'Regan and Baragwanath JJ
Counsel:Applicant in person

J G Miles QC and P J L Hunt for Respondents

Judgment:24 March 2010 at 4 pm

JUDGMENT OF THE COURT

The application for an extension of time to appeal is dismissed.
REASONS OF THE COURT
(Given by Hammond J)
The application
[1]        By an application dated 11 January 2010 Mr Siemer has applied for leave to appeal to this Court against a decision of Potter J in the High Court.[1] The ‘leave’ Mr Siemer seeks is, in fact, an extension of time in which to bring his proposed appeal under r 29A of the Court of Appeal (Civil) Rules 2005. This is required because Mr Siemer is some two and a half years out of time under the rules of this Court.
[1]Stiassny v Siemer HC Auckland CIV 2005-404-1808, 9 July 2007.
[2]        The judgment which Mr Siemer seeks to appeal is a judgment in which the respondents had applied for an order for the committal of Mr Siemer, and associated orders, on the grounds that Mr Siemer had further breached the terms of an interim injunction issued by the High Court on 5 May 2005, and had failed to pay costs ordered by the High Court and this Court. Mr Siemer had filed no notice of opposition and he did not appear in person or by counsel.
[3]        The background is that although he had been notified by the High Court of the fixture on 3 May 2007 and again on 25 May 2007, Mr Siemer had chosen to proceed overseas. The fixture was for 4 July 2007 but Mr Siemer communicated with the Court by email to the effect that he would not be back in New Zealand until 11 July 2007. As the Judge noted, Mr Siemer merely advised his absence overseas; he made no formal application for an adjournment. The Judge found: “[His] non appearance is clearly deliberate.”[2]
[2] At [12].
[4]        Mr Siemer had also invited Potter J to recuse on the grounds of bias. Her Honour recorded that “there are no grounds upon which I would be either entitled or required to do so.”[3]
[3] At [13].
[5]        This in turn was against a background in which Potter J had held (in an earlier judgment) that “in seriously and deliberately breaching [certain] injunctions [Mr Siemer was] in contempt of court.”[4] So effectively the High Court was having to deal with continuing and enlarging contempts.
[4] At [18].
[6]        The respondents had also sought an order debarring Mr Siemer from further defending the proceeding. In the result, Potter J held:
(1)Leave is granted to the [present respondents] to issue a writ of arrest to bring Mr Siemer before [the High Court] so the consequences of his contempt of court may determined.
(2)Mr Siemer [is] debarred from defending the proceeding…

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: [2010] NZCA 81
Decision Date: 24 March 2010

CaseChat Overview and Summary

In the case of Siemer v Stiassny, Vincent Ross Siemer applied to the Court of Appeal of New Zealand for leave to appeal a decision of the High Court, which had been made by Potter J. Siemer sought an extension of time to appeal, as he was two and a half years out of time under the rules of the Court of Appeal. The judgment Siemer sought to appeal was one in which the respondents had applied for an order for the committal of Siemer, and associated orders, on the grounds that he had further breached the terms of an interim injunction issued by the High Court and had failed to pay costs ordered by the High Court and the Court of Appeal. The legal issues the Court was required to decide were whether the application should be granted and if there were any exceptional circumstances that warranted an extension of time. The Court dismissed the application for an extension of time to appeal, stating that the application was out of time and that there were no exceptional circumstances. The Court found that Siemer had deliberately chosen not to appeal the debarment order, which had significant downstream consequences for him. The Court also noted that Siemer had not challenged the "debarment" order, which had significant practical difficulties. The Court found that Siemer had created grave difficulties for himself by not appealing the debarment order and that he had a clear and appropriate warning from the Court. The Court further found that there had been distinct downstream consequences from Siemer's failure to take the appropriate course at the time, and that this had created substantial prejudice and costs to the respondents. The Court also found that the merits of the proposed appeal were difficult to see, as the Judge had jurisdiction to take the course that she did and had made factual findings which were supported by documentary evidence. Therefore, the application for leave to appeal was dismissed.

Orders