Hearing: 8 February 2007
Court: William Young P, Glazebrook and O’Regan JJ Counsel: Appellant in Person and A Candy (McKenzie friend)
J G Miles QC and M Flynn for Respondents

Judgment: 4 April 2007 at 3 pm

JUDGMENT OF THE COURT

A The appeals are dismissed.

BThe appellant is to pay costs of $6,000 and usual disbursements to the respondents.

REASONS OF THE COURT

(Given by William Young P)

SIEMER V STIASSNY AND FERRIER HODGSON CA CA55/06 4 April 2007

Introduction

[1] Mr Vincent Siemer appeals against two judgments of Potter J in the Auckland High Court. In the first, delivered on 16 March 2006, she found Mr Siemer and his company, Paragon Services Ltd (previously Paragon Oil Systems Ltd), guilty of contempt of court for having breached an injunction granted by Winkelmann J on 8 April 2005 and varied by Ellen France J on 5 May 2005. In this judgment, Potter J fined Mr Siemer and Paragon (jointly and separately) $15,000 and ordered them to pay costs on a solicitor and own client basis. In the second judgment, which she delivered on 2 June 2006, Potter J quantified costs and disbursements in the sums of $180,182.78 and $3,386 respectively.

[2] Mr Siemer’s appeal raises many interconnected and overlapping arguments which we propose to address under the following headings:

(a) Challenges to the injunctions and arguments based on freedom of speech;

(b) Challenges to the procedure adopted by the Judge; (c) Claims that the Judge was biased;
(d) Challenges to the factual findings; and

(e) Challenge to the costs award.

But, before we address those heads of argument, it is necessary to say something about the background to the case and the legal context in which it fell to be determined.

Background to the case

[3] Mr Siemer was involved in a dispute with co-shareholders in Paragon. At one stage in the process, Mr Stiassny was appointed as a receiver of Paragon. That receivership came to an end in July 2001. Differences remained between Mr Stiassny and his firm, Ferrier Hodgson, on the one hand, and Paragon and Mr Siemer on the other. These differences were ostensibly resolved pursuant to a compromise agreement of 9 August 2001. Under this agreement Paragon and Mr Siemer agreed not to comment to anyone on any matter arising in or from the receivership (and Mr Stiassny and Ferrier Hodgson made similar commitments). We note that, for ease of reference, we will usually refer to the dispute as being between Mr Siemer and Mr Stiassny and omit references to Paragon and Ferrier Hodgson.

[4] Mr Siemer does not accept that he is bound by the 9 August 2001 agreement for reasons which he has explained to us in considerable detail. He made numerous complaints about Mr Stiassny to various official…

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 117
Case: [2007] NZCA 117
Decision Date: 4 April 2007

CaseChat Overview and Summary

Vincent Siemer appeals against two judgments of Potter J in the Auckland High Court which found him guilty of contempt of court for having breached an injunction granted by Winkelmann J on 8 April 2005 and varied by Ellen France J on 5 May 2005. In the first judgment, delivered on 16 March 2006, Potter J fined Mr Siemer and his company, Paragon Services Ltd (previously Paragon Oil Systems Ltd), $15,000 and ordered them to pay costs on a solicitor and own client basis. In the second judgment, delivered on 2 June 2006, Potter J quantified costs and disbursements in the sums of $180,182.78 and $3,386 respectively. Mr Siemer’s appeal raises many interconnected and overlapping arguments which we address under the following headings: Challenges to the injunctions and arguments based on freedom of speech; Challenges to the procedure adopted by the Judge; Claims that the Judge was biased; Challenges to the factual findings; and Challenge to the costs award. In relation to the first set of arguments, the Court found that challenges to the legitimacy of the injunctions were irrelevant to this appeal. In relation to the second set, the Court endorsed the approach that the Judge took. It found that Mr Siemer could not fairly expect to rely on his affidavit evidence but then avoid cross-examination. In relation to the third set, the Court found that the actions attributed by Mr Siemer to the Judge did not disclose actual or apparent bias. In relation to the fourth set, the Court found that there was no error in the decision of the Judge. In relation to the fifth set, the Court found that there was no basis upon which it could interfere with the way in which the Judge exercised her discretion to fix costs. The appeal was dismissed. Mr Siemer was ordered to pay costs of $6,000 and usual disbursements to Mr Stiassny and Ferrier Hodgson.

Orders