Siemer v Stiassny

[2006] NZCA 268

IN THE COURT OF APPEAL OF NEW ZEALAND

CA150/06

BETWEENVINCENT SIEMER

Applicant

ANDMICHAEL STIASSNY AND FERRIER HODGSON

Respondents

Hearing:18 September 2006

Court:William Young  P, Robertson and Arnold JJ

Counsel:Applicant in Person

J G Miles QC for Respondents

Judgment (On the Papers):     25 September 2006 

INTERIM JUDGMENT OF THE COURT

AInterim stay of fine imposed in the High Court on 16 March and 10 May 2006 pending further order of this Court.

BInterim stay of costs and disbursements imposed in the High Court on 2 June 2006 pending further order of this Court.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

[1]       At the request of the applicant, this matter is being dealt with on the papers.

[2]       It is an application to grant a stay on two orders made by the High Court.  The first was a fine of $15,000 imposed by Potter J in the High Court at Auckland on 16 March 2006 for contempt.  Initially it was to be paid within 30 days, but when the Judge refused a stay pending the hearing of a substantive appeal on 10 May 2006, she ordered immediate payment.

[3]       A stay was also sought and refused in the High Court in relation to the associated costs order.  In her judgment of 10 May 2006, Potter J ordered that costs would become payable 30 days after they were fixed.  The relevant costs order was made on 2 June 2006 after the Judge had received confirmation that the bill in question had been paid.  Costs on a solicitor and client basis were $180,182.78 plus disbursements of $3,386.00.  The applicant complained that he was denied the opportunity to question the quantum.

[4]       Substantive appeals against the finding of contempt, the fine and the costs order are set down for hearing on 7 February 2007.  Earlier dates have been offered but no earlier time was mutually acceptable.

[5]       The case for stay in this Court, like all the documentation which has been lodged by Mr Siemer, is immoderate and contentious. It challenges the process adopted throughout the litigation and the findings of the Judge.

[6]       It is common ground that, in considering an application for stay in accordance with r 12 of the Court of Appeal (Civil) Rules 2005, the non-exhaustive list of relevant factors detailed in McGechan on Procedure at para CR12.01 (which are derived from the judgments in Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48 at [9] (HC) and Area One Consortium Ltd v Treaty of Waitangi Fisheries Commission (1993) 7 PRNZ 200 at 201 (HC)) is of assistance.

Discussion

[7]       From the intemperate (if not scandalous) assertions which have been made by Mr Siemer, the only point which calls for extended consideration is the question whether a failure to grant a stay will render the right to appeal nugatory.

[8]       Potter J, when considering this aspect of a stay in her judgment of 10 May 2006, said at [14]:

(a)Whether, if no stay is granted, the applicant’s right of appeal will be rendered nugatory (this is not determinative).

This case does not give rise to such a consideration.  If the defendants were to be successful on appeal then there will simply be an appropriate financial adjustment in respect of the fine and/or costs orders made by the judgment.

[9]       There is no discussion of, or reference to, the actual financial position of Mr Siemer which identifies why she determined that the factor was not relevant.

[10]     The position on this aspect has not been amplified significantly before us.  The applicant’s submissions record that the respondents do not believe that Mr Siemer “was capable of paying such costs” and Mr Siemer does not challenge that position. 

[11]     Mr Siemer, in his 25 August 2006 response, says:

Under these circumstances in particular, it is submitted that arguing judicial discretion as a basis to uphold the immediate payment of costs (as the respondents have done) is wholly unreasonable, inappropriate and wrong, in addition to being unjustly detrimental to the appellant’s family and employees.

[Emphasis added]

[12]     In light of the chemistry of the litigation, if that is correct, it seems inevitable that, in the absence of a stay, enforcement action will be taken which will probably result in Mr Siemer becoming bankrupt.

[13]     If Mr Siemer is made bankrupt the appeal may well be rendered nugatory.  In such circumstances, “appropriate financial adjustments” as envisaged by Potter J will not be sufficient to safeguard the applicant’s right of appeal.

[14]     This Court in Philip Morris (New Zealand) Limited v Liggett & Myers Tobacco Co (New Zealand) Ltd [1977] 2 NZLR 41 held that the fact that an appeal may be rendered nugatory is not determinative in and of itself as to whether a stay should be granted. That, however, does not suggest that it cannot be a factor. On the basis of the material available to us we cannot make a confident assessment of the position in light of the respondents’ alleged attitude. As Mr Siemer’s company is in receivership, the financial circumstances of Mr Siemer and the effect this may have on the viability of the appeal requires consideration.

Conclusion

[15]     While utterly condemning the tone of the applicant’s submissions, the Court must ensure that an unrepresented litigant is not denied the appeal rights which the law provides because of an unwitting failure to address matters of importance which may go to the heart of the relief sought.

[16]     Accordingly we adjourn the hearing of this application part-heard.  There will be a stay of the orders made by Potter J with regard to the payment of the fine and the payment of costs and disbursements pending further order of the Court.

[17]     Mr Siemer is granted leave to file evidence only as to his current financial position within 21 days of the date of this interim judgment.  In the absence of appropriate evidentiary material which demonstrates an inability to pay the $200,000, the Court will make an order removing the stay. 

[18]     If evidence suggests that the applicant’s right to appeal may be rendered nugatory because of an inability to meet the immediate payment of $200,000, the respondents may, within a further 14 days, file evidence in opposition.  Within a further seven days the applicant may file evidence strictly in response. 

[19]     The Court will then consider the available material and issue a final judgment.

Solicitors:
McElroys, Auckland, for Respondents