Siemer v Stiassny
[2014] NZHC 1272
•5 June 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-1131 [2014] NZHC 1272
BETWEEN VINCENT SIEMER
Plaintiff
AND
MICHAEL STIASSNY First Defendant
AND
KORDA MENTHA, formerly Ferrier
HodgsonSecond Defendant
Hearing: On the Papers Judgment:
5 June 2014
JUDGMENT OF THOMAS J
This judgment was delivered by me on Friday 6 June 2014 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
SIEMER v STIASSNY [2014] NZHC 1272 [5 June 2014]
The Registrar has referred to me as Duty Judge an ex parte application by Mr Siemer for leave to institute proceedings against Michael Stiassny and Korda Mentha, formerly Ferrier Hodgson.
Judgment declaring Mr Siemer a vexatious litigant
[1] On 30 April 2014, Ronald Young and Brown JJ issued a judgment declaring Mr Siemer a vexatious litigant under s 88B of the Judicature Act 1908.1 The Attorney-General had alleged that 19 specific proceedings instituted by Mr Siemer constituted vexatious proceedings. The Court held that 15 of these proceedings had indeed been instituted vexatiously.
[2] Section 88B(1) of the Judicature Act 1908 provides:
88B Restriction on institution of vexatious actions
If, on an application made by the Attorney-General under this section, the High Court is satisfied that any person has persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior Court, and whether against the same person or against different persons, the Court may, after hearing that person or giving him an opportunity of being heard, order that no civil proceeding or no civil proceeding against any particular person or persons shall without the leave of the High Court or a Judge thereof be instituted by him in any Court and that any civil proceeding instituted by him in any Court before the making of the order shall not be continued by him without such leave.
[3] At the conclusion of their judgment, Ronald Young and Brown JJ made the following orders:2
(a) Mr Siemer is not to institute any civil proceedings against any person in the High Court and in any inferior Court without leave of the High Court where the other party is:
(i) Mr Michael Stiassny;
(ii) Ferrier Hodgson – Accountants;
(iii) any Associate Judge or any Judge of the District Court, High
Court, Court of Appeal or Supreme Court;
1 Attorney-General v Siemer [2014] NZHC 859.
2 At [204].
(iv) the Attorney-General; (v) the Solicitor-General;
(vi) the New Zealand Law Society;
(vii) the Judicial Conduct Commissioner;
(viii) any barrister and/or solicitor of the High Court of New
Zealand;
(b) Mr Siemer is not to institute any proceeding which relates directly or indirectly to his dispute with Mr Stiassny, Ferrier Hodgson, Mr Robert Fardell and Paragon Oil Systems;
(c) all proceedings currently before the High Court and any inferior Court involving any of the above parties in (a)(i)-(viii) or involving the dispute identified in (b) (whether directly or indirectly) will not be continued by Mr Siemer without leave of the High Court.
(We use the term “inferior Court” because that is the phrase used in s 88B
and to ensure all courts below the High Court are included in this order.)
[4] Although order (b) appears to ban the instituting of the relevant proceedings entirely, it should be read as stating “without leave of the High Court”.
[5] The reasons for the Court making these orders were as follows:
[199] In one way or another all of the proceedings issued by Mr Siemer and the subject of this application arose from his original dispute with Mr Stiassny and Ferrier Hodgson following from the liquidation of Paragon.
[200] …
[201] Mr Siemer has sued a remarkably wide range of persons arising from the initial litigation with respect to Paragon. As we have noted, in addition to the above three parties, the litigation involves lawyers who acted for him and opposing parties (including the Solicitor-General), the Law Society and the Judicial Complaints Commissioner as recipients of complaints from Mr Siemer and the Attorney-General as representative of other parties. Consequently any orders which properly related directly to the subject matter of this litigation would need to include these persons.
[202] We have considered whether, given the wide range of such persons and given Mr Siemer’s capacity to identify new parties to this alleged injustice arising from his core dispute, it would be more appropriate to impose a general ban pursuant to s 88B. We have decided not to do so. We accept the principle that any restriction of the right to bring proceedings (even if only by a leave application) should be as narrow as possible, consistent with the intent of s 88B to protect defendants from persistent vexatious proceedings.
[203] To that end the fact that Mr Siemer’s litigation all has a single
underlying point convinces us that the appropriate outcome is to restrict the
bringing of proceedings arising from this dispute (directly or indirectly)
without leave.
Discretion to grant leave
[6] The Court’s discretion to grant a vexatious litigant leave to file proceedings is set out in s 88B(2) and (3) of the Judicature Act 1908:
88B Restriction on institution of vexatious actions
…
(2) Leave may be granted subject to such conditions (if any) as the Court or Judge thinks fit and shall not be granted unless the Court or Judge is satisfied that the proceeding is not an abuse of the process of the Court and that there is prima facie ground for the proceeding.
(3) No appeal shall lie from an order granting or refusing such leave. (emphasis added)
[7] The following principles emerge3 from Re Collier,4 Re Collier,5 and Black
White & Grey Cabs Ltd v Hill:6
a)While the application should generally be dealt with on a without notice basis, the Court has inherent jurisdiction to direct service on the Attorney-General and the proposed defendant. However, neither the Attorney nor the intended defendant should lightly be troubled by the application.
b)The discretion to grant leave is to be exercised very carefully because, ex hypothesis, the applicant is a vexatious litigant.
c)“Prima facie ground” means a serious, as opposed to a speculative, case — one sufficiently strong to require an answer from the opposing party.
Background
[8] This proceeding arises out of a dispute between the plaintiff (Mr Siemer) and a receiver (Mr Stiassny) and his company Korda Mentha (formerly Ferrier
3 Andrew Beck and others McGechan on Procedure (online ed, Brookers) at [J88B.08].
4 Re Collier [2008] 2 NZLR 505 (HC).
5 Re Collier [2004] NZAR 472 (HC).6 Black, White & Grey Cabs Ltd v Hill HC Wellington CP1013/91, 10 December 1993.
Hodgson). A summary of the background facts was set out in Ronald Young and
Brown JJ’s judgment of 30 April 2014:
[12] In 2000 Mr and Mrs Siemer entered into a commercial agreement with a company called Waterford Holdings Ltd (“Waterford”), the purpose of which was to facilitate an investment by the Siemers in a business that Waterford was seeking to develop. The agreement would put Paragon Oil Systems Ltd (“Paragon”) in control of the business and allocate shareholdings in that company to the Siemers on the one hand and to the Waterford interests on the other.
[13] The relationship broke down due to oppressive conduct by the Waterford interests and the proceeding Siemer v Paragon Oil Systems Ltd was commenced. It appeared to the Siemers that Paragon and their significant financial investment in it were imperilled by the actions of the Waterford interests. On the advice of the late Robert Fardell QC the Siemers asked the High Court to appoint a receiver to Paragon. On Mr Fardell’s recommendation Mr Michael Stiassny of Ferrier Hodgson, Auckland was appointed as receiver.
[14] In one of his two reports to the Court Mr Stiassny recommended that Paragon should cease trading pending the outcome of the proceeding in Siemer v Paragon Oil Systems Ltd. Following the ruling of Hammond J in that proceeding, the shares in Paragon were transferred to the Siemers and the receivership was discharged.
[15] However differences arose between Mr Siemer and Paragon on the one hand and Mr Stiassny and his company on the other concerning the conduct of the receivership. Although an agreement was entered into on 9 August
2001 which ostensibly was a settlement of those differences, during 2002 to
2005 Mr Siemer made a series of complaints to professional organisations to which Mr Stiassny belonged.
[16] Mr Siemer also erected a billboard in Hobson Street, Auckland, directing attention to a website on which Mr Siemer had placed information which he claimed demonstrated misconduct by Mr Stiassny and his company. Mr Stiassny and Ferrier Hodgson took proceedings against Mr Siemer in defamation and alleging a breach of the settlement agreement of 9
August 2001.
Statement of claim
[9] Mr Siemer’s statement of claim in respect of which leave is sought alleges fraud on the part of the defendants, Mr Stiassny and Korda Mentha.
[10] Mr Siemer submits that the defendants fraudulently misrepresented his publications to the Court and that this misrepresentation was designed to lead the Court into error by:
(a) Issuing an injunction (interim injunction: Ellen France J; permanent injunction: Cooper J); and
(b) Issuing a defamation ruling (Cooper J);
both of which would not otherwise have been obtained.
Interim Injunction (5 May 2005)
[11] The injunction granted by Ellen France J required the billboard and website to be taken down and restrained Mr Siemer from any similar conduct pending resolution of the substantive proceedings. Mr Siemer appealed to the Court of Appeal against the granting of the interim injunction. The appeal was dismissed on
13 December 2005.7
Permanent injunction and substantive judgment (23 December 2008)
[12] This judgment related to the defamation claim made by Mr Stiassny and Ferrier Hodgson against Mr Siemer.8 As a consequence of a debarring order made against Mr Siemer, the hearing in this matter proceeded by way of formal proof. Mr Siemer did not appear and was not represented. Cooper J held that the plaintiffs' claims had been made out. He awarded Mr Stiassny $825,000 on the defamation claim and Ferrier Hodgson $75,000 on the defamation claim and $20,000 on the
claim for breach of the settlement agreement. He also granted a permanent injunction prohibiting the defamatory publications.
[13] Mr Siemer lodged an appeal against Cooper J's judgment. Mr Siemer had to seek an extension of time to commence a fresh appeal. Mr Siemer was granted leave to lodge a new appeal but an application by the respondents to strike out was granted in part. The result was that Mr Siemer had leave to appeal on the quantum of
damages. There was no order for security for costs and there was no award of costs
7 Siemer v Ferrier Hodgson CA87/05, 13 December 2005.
8 Korda Mentha v Siemer HC Auckland CIV-2005-404-1808, 23 December 2008.
for either party.9 Mr Siemer applied for leave to appeal to the Supreme Court against the decision of the Court of Appeal. The application was dismissed.10
[14] The Court of Appeal dismissed Mr Siemer's substantive appeal by judgment dated 30 March 2011.11 Mr Siemer sought leave to appeal to the Supreme Court. The application was dismissed on 3 June 2011.12
Particulars of fraud allegation
[15] Mr Siemer claims that Mr Fardell QC wrote file notes dated 15 May 2001 and 25 May 2001 recording that Paragon was insolvent.
[16] Mr Siemer alleges that on 8 April 2005, Mr Stiassny sought an ex-parte injunction preventing the publication of material relating to him from the website and that the application was accompanied by an affidavit in which Mr Stiassny swore that “none of the allegations (published) are true and those allegations that have been investigated by the Serious Fraud Office and the Institute of Chartered Accountants have been rejected.”
[17] Mr Siemer claims that all the allegations were true and neither the SFO nor
ICA rejected any allegations on the ground that they were false.
[18] Mr Siemer challenged the ex-parte injunction by application for a de novo hearing. Ahead of this hearing, Mr Stiassny swore an affidavit dated 20 April 2005, which stated that solvency was not at issue in the proceedings or in the receivership, and “we were not required to take a view or advise on solvency and we did not do so”. Mr Stiassny requested that Mr Fardell’s file notes be declared inadmissible, stating:
These documents are also on the website and form part of his attack on the website. I am advised this is a blatant misuse of documents disclosed on discovery on other litigation and amounts to a serious abuse of process of contempt of court.
9 Siemer v Stiassny & Korda Mentha [2009] NZCA 624.
10 Siemer v Stiassny [2010] NZSC 57.
11 Siemer v Stiassny [2011] NZCA 106.12 Siemer v Stiassny [2011] NZSC 63.
[19] Mr Siemer says this evidence was “deliberately false”. At [24] of his statement of claim he appears to maintain that it was not true that Mr Stiassny had not taken a position on the solvency of Paragon and it was not true that publishing the file notes on the website was a contemptuous misuse of discovery.
[20] Mr Siemer says that apart from this fraudulent evidence, there was no other evidence on which the injunction could have been granted or the defamation ruling made. Mr Siemer states that “no court has addressed the incontrovertible evidence from Mr Fardell QC’s notes proving… Mr Stiassny labelled Paragon insolvent”.13
[21] Mr Siemer also claims that the compromise agreement was obtained by “fraud and deception” as, at the time it was entered into, Mr Siemer was not told that Mr Fardell was also advising the defendants and that Mr Stiassny was a trustee of Mr Fardell’s family trust.
[22] Mr Siemer also complains about the fact that the injunction was upheld in the
Court of Appeal on a different ground from that on which Ellen France J ordered it.
Relief sought
[23] Mr Siemer seeks a revocation of the interim injunction ordered by Ellen France J on 5 May 2005. He also seeks an order setting aside the judgment of Cooper J on 23 December 2008.
Proceedings related to the current cause of action
[24] A number of the proceedings discussed in the judgment of Ronald Young and
Brown JJ are relevant to the proceeding that Mr Siemer now seeks leave to file:
Proceeding 593: Paragon Services Ltd and Siemer v Ferrier Hodgson & Co Ltd
[25] Proceeding 593 was issued by Mr Siemer and Paragon on 10 February 2006. It alleged a cause of action against Mr Stiassny and his company for perjury in
connection with the affidavit filed by Mr Stiassny in support of the application for
13 Statement of Claim at [35].
the interim injunction issued by Ellen France J. The statement of claim was struck out by Associate Judge Doogue on 9 August 2006.
[26] Ronald Young and Brown JJ found that this proceeding was a collateral attack on the judgment of Ellen France J and Mr Siemer’s subsequent unsuccessful appeal to the Court of Appeal. However they acknowledged that when Mr Siemer understood his cause of action could not succeed, he accepted that the proceeding should be struck out. Therefore they accepted that the proceeding was not vexatiously instituted.
Proceeding 104: Siemer v Stiassny, Ferrier Hodgson & Co Ltd and AG
[27] This proceeding was commenced on 9 January 2008 and alleged three causes of action: conspiracy to defeat the course of justice; systematic deprivation of Mr Siemer’s legal rights; and a conspiracy between Mr Stiassny and Ferrier Hodgson to bring a false claim against Mr Siemer. It included allegations of breaches of the New Zealand Bill of Rights Act 1990 (NZBORA) by judges. The Crown was joined as a defendant. Harrison J struck out the proceedings as an abuse of process.
[28] Mr Siemer submitted that the proceeding sought to address:14
…the false premise for the gag injunction Mr Stiassny obtained against [Mr Siemer] on the shifting sands of process where the High Court upheld the injunction on one ground and the Court of Appeal upheld it on a ground the High Court had refused to accept…
[29] Ronald Young and Brown JJ agreed with Harrison J that the proceeding was clearly designed to relitigate defamation proceedings which had been resolved. They therefore found that the institution of this proceeding was vexatious.
Proceeding 8435: Siemer v Chief Justice and AG
[30] Proceeding 8435 was commenced 16 December 2009. The claim was against the Attorney-General and the Chief Justice. The causes of action alleged a violation of rights protected by the NZBORA including freedom of expression and natural
justice and unlawful discrimination under the Human Rights Act 1993. Although
14 Attorney-General v Siemer, above n 1, at [99] quoting Mr Siemer’s submissions.
neither Mr Stiassny nor Ferrier Hodgson were named as parties, the violation of rights and discrimination were alleged to have occurred during, among others, the defamation proceeding.
[31] In an omnibus judgment that also dealt with four other proceedings brought by Mr Siemer, Woodhouse J struck out proceeding 8435 as constituting an abuse of process of the Court by dint of being a collateral attack on earlier decisions.15
[32] Ronald Young and Brown JJ found this proceeding to be vexatiously instituted. The proceeding was for a collateral purpose of challenging other previously resolved litigation.
Proceeding 1909: Siemer v Chief Justice
[33] This proceeding alleged breaches of the right to natural justice on the part of various judges who had presided over earlier hearings of Mr Siemer’s claims including Cooper J with respect to his judgment dated 23 December 2008 giving judgment against Mr Siemer in the defamation proceeding.
[34] Andrews J struck out this and the other claims as an abuse of process.16 She found there was no breach of natural justice and that the proceeding was a collateral attack on judgments with which Mr Siemer was unhappy.
[35] Ronald Young and Brown JJ found that this proceeding was also vexatiously instituted. It again illustrated, “Mr Siemer’s refusal to accept finality where the ultimate decision goes against him”.17
Proceeding 7026: Siemer v Cooper and AG
[36] In this proceeding Mr Siemer contended that there had been a breach of s 27 of the NZBORA by Cooper J in the conduct of the formal proof hearing leading to
15 Siemer v Chief Justice of the New Zealand Supreme Court HC Auckland CIV-2009-404-8435, 22
August 2011.
16 Siemer v Chief Justice of the New Zealand Supreme Court HC Auckland CIV-2010-404-7026, 11
February 2011.
17 Attorney-General v Siemer, above n 1, at [153].
the judgment of 23 December 2008.18 This proceeding was also struck out in the omnibus judgment of Woodhouse J.
[37] Before Ronald Young and Brown JJ, Mr Siemer argued that he considered Cooper J’s actions amounted to an egregious act of judicial misconduct constituting another example of the type of situation where Mr Siemer considers there should be a limited exception to judicial immunity.
[38] Ronald Young and Brown JJ were satisfied that this proceeding was vexatiously instituted. It was a collateral attempt to challenge the decision of Cooper J in the defamation judgment.
Proceeding 1133: Siemer v Stiassny and Korda Mentha
[39] The defendants in proceeding 1133 were Mr Stiassny and his firm. It was commenced on 28 February 2012 and “involved an attempt to revisit the subject of Stiassny v Siemer by seeking to have the judgment of Cooper J set aside on the ground that the judgment was obtained by fraud”.
[40] On application by the defendants, Andrews J struck out the claim in a judgment delivered on 18 May 2012. 19 Ronald Young and Brown JJ explained what followed:20
[189] Mr Siemer lodged an appeal to the Court of Appeal and made an application for a waiver of the requirement to pay security for costs. The Registrar having declined to grant the waiver, an application to review the Registrar’s decision was declined in a judgment of Wild J dated 5 September
2012.
[190] Mr Siemer’s application to the Supreme Court for leave to appeal
against the judgment of Wild J was dismissed in a judgment dated 7 March
2013. Mr Siemer also filed an application in the Court of Appeal for a review of the judgment of Wild J. That application for review was dismissed in a
judgment of Wild J dated 6 June 2013.
18 Siemer v Chief Justice of the New Zealand Supreme Court HC Auckland CIV-2010-404-7026,
22 August 2011.
19 Korda Mentha (formerly Ferrier Hodgson) v Siemer [2012] NZHC 1074.
20 Attorney-General v Siemer, above n 1.
[41] Ronald Young and Brown JJ were satisfied that this proceeding was vexatiously instituted. It was again an indirect attempt to challenge the defamation judgment given by Cooper J by a collateral attack alleging that the judgment was based on fraud.
Is there prima facie ground for the proceeding? Is the current proceeding an abuse of the process of the Court?
[42] Mr Siemer has already challenged Ellen France J’s granting of the interim
injunction in:
(a) Proceeding 593;
(b) Proceeding 104; and
(c) Proceeding 8435.
[43] Mr Siemer has already challenged Cooper J’s decision in:
(a) Proceeding 1909;
(b) Proceeding 7026; and
(c) Proceeding 1133.
[44] In proceeding 1133, Mr Siemer relied on the same ground, fraud, as he does in this proposed proceeding.
[45] All of the above proceedings were held by Ronald Young and Brown JJ to have been vexatiously instituted, save for Proceeding 593 in which Mr Siemer alleged perjury against Mr Stiassny in relation to the affidavit (which is currently at issue). However this proceeding was struck out and Ronald Young and Brown JJ did find that it was a collateral challenge, if not vexatious.
[46] The statement of claim in respect of which leave is sought falls squarely within the proceedings prohibited by the decision of Ronald Young and Brown JJ that is, proceedings which relate to Mr Siemer’s dispute with Mr Stiassny, Ferrier Hodgson and Mr Fardell. This is another proceeding arising directly from Mr Siemer’s original dispute with Mr Stiassny and Ferrier Hodgson following the
liquidation of Paragon. Given the history of the extensive litigation in respect of this dispute where the same matters were at issue, there is no prima facie ground for the proceeding. It seeks to relitigate issues that have already been dealt with in the Courts and, as such, constitutes an abuse of process.
[47] Leave to bring the proceedings is refused.
Thomas J
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