Siemer v Stiassny - [2007] NZCA 581

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA226/07
[2007] NZCA 581
BETWEENVINCENT ROSS SIEMER

Appellant

ANDFERRIER HODGSON

First Respondent
ANDMICHAEL PETER STIASSNY

Second Respondent

Hearing:3 December 2007

Court:Hammond, O'Regan and Robertson JJ
Counsel:Appellant in person

P J L Hunt for Respondents

Judgment:14 December 2007 at 11 am

JUDGMENT OF THE COURT

A        The application to strike out the appeal is dismissed.
B        We give directions as set out in [49] herein.
C        No order for costs.
REASONS OF THE COURT
(Given by Hammond J)
Introduction
[1]       Mr Siemer has appealed to this Court an interlocutory decision of Rodney Hansen J in the High Court at Auckland (CIV 2005-404-1808 19 April 2007) in proceedings in contract, and for defamation.
[2]       The respondents have now applied to strike out this appeal in its entirety, because (amongst other things) Mr Siemer is presently in contempt of Court.
Background
[3]       Ferrier Hodgson is a firm of chartered accountants. Mr Stiassny is a principal in that firm.
[4]       In December 2000, Mr Stiassny was appointed receiver of Paragon Services Limited (Paragon) following disputes between shareholders of Paragon.
[5]       The receiver was appointed primarily for the purpose of protecting certain alleged intellectual property rights. The issues between the shareholders were eventually resolved during 2001. Mr Siemer became the sole shareholder in Paragon. The receivership came to an end.
[6]       Mr Siemer had complaints over the conduct of the receivership. Eventually those disputes were resolved by a compromise agreement dated 9 August 2001. Relevantly, it provided that Mr Siemer would not comment on any matter arising in or from the receivership, including the fact of settlement.
[7]       Nevertheless, in April 2005 Mr Siemer had a billboard erected in a prominent position in central Auckland. It included the name and a picture of Mr Stiassny and referred viewers to a website. This website contained a range of material which, as Rodney Hansen J said, “to put it neutrally, was critical of Mr Stiassny” (at [5]).
[8]       Mr Stiassny and his firm thereupon sought and obtained an ex parte injunction from Winkelmann J which provided for the removal of the objectionable material from the website and the removal of the billboard. Mr Siemer was also restrained from reinstating the billboard. Later, on a fully argued application to rescind the injunction, Ellen France J put in place a more limited injunction. This Court upheld Ellen France J’s orders: CA87/05 13 December 2005.
[9] There was initial compliance with these orders, but then in the course of 2005 Mr Siemer published further material. This prompted a successful application by Mr Stiassny and the firm to have Mr Siemer held in contempt of court. Following a hearing before Potter J in the High Court at Auckland, Mr Siemer was, on 16 March 2006, fined $15,000 and ordered to pay indemnity costs totalling over $180,000. The fine has been paid. The costs remain outstanding. This Court dismissed an appeal against Potter…

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 [2007] NZCA 581
Case: [2007] NZCA 581
Decision Date: 14 December 2007

CaseChat Overview and Summary

The case of Siemer v Stiassny before the Court of Appeal of New Zealand involves an appeal by Vincent Ross Siemer against an interlocutory decision made by Rodney Hansen J in the High Court at Auckland, concerning a contract and defamation case. Ferrier Hodgson, a firm of chartered accountants, and its principal, Michael Peter Stiassny, are the respondents. The primary issue in this appeal is whether the Court should strike out Siemer's appeal due to his ongoing contempt of court and his failure to adhere to the rules of the Court of Appeal. The Court found that Siemer's appeal would not be struck out, but directions were given for the future conduct of the appeal, including the submission of fresh documents without any objectionable statements relating to judicial officers.

The Court considered the arguments presented by the respondents that Siemer's ongoing contempt and his attacks on the judiciary warranted the striking out of his appeal. However, the Court decided not to strike out the appeal, exercising its discretion flexibly and according to the circumstances of the case. The Court noted that Siemer's contumacious behaviour and his unwarranted attacks on the judiciary were deeply disturbing, but also acknowledged that Siemer was involved in a civil litigation case involving serious claims and large sums of money.

In light of this, the Court gave directions for the future conduct of the appeal, including allowing for the late filing of the appeal, requiring Siemer to submit fresh documents within 14 days, reserving the ability to strike out the appeal if Siemer's conduct exhibits contempt for the Court's processes, and deferring the hearing of any application by the respondents in the High Court until the appeal has been disposed of. No order for costs was made.

Orders