Siemer v Stiassny

[2011] NZSC 128

IN THE SUPREME COURT OF NEW ZEALAND

SC 49/2011
[2011] NZSC 128

BETWEEN  VINCENT ROSS SIEMER
Applicant

AND  MICHAEL PETER STIASSNY
First Respondent

AND  KORDA MENTHA (FORMERLY FERRIER HODGSON)
Second Respondent

Court:             Blanchard, Tipping and William Young JJ

Counsel:         F C Deliu for Applicant

Judgment:      21 October 2011

JUDGMENT OF THE COURT

The application for recall is dismissed.

REASONS

1. The applicant’s application for leave to appeal against a judgment of the Court of Appeal was dismissed by judgment of this Court delivered on 3 June 2011.[1]  Mr Siemer, through counsel, seeks a recall of that judgment.  This application is based on complaints that:

   (a)this Court declined to direct the Court of Appeal to prepare a transcript of the hearing of the appeal; and

   (b)this Court did not “properly address” a contention that the respondents were allowed to “reap the fruits of a judgment obtained, at least in part, by misleading the trial Court”, a contention which was said to have been “tantamount to an allegation that the judgment was obtained by fraud”.

   [1]      Siemer v Stiassny [2011] NZSC 63.

2. Mr Deliu argued that the applicant was entitled as of right to a transcript of what occurred at the hearing in the Court of Appeal.  As this would require preparing a typescript of the electronic recording of the hearing, this is not so, see r 6(2) of the Court of Appeal (Access to Court Documents) Rules 2009.  In other respects, the complaint in relation to the transcript is simply a direct challenge to the conclusion and reasons expressed in the leave judgment (at [10]–[13]) and does not warrant further discussion.

3. We do not accept that such complaints as the applicant made, as part of his application for leave to appeal to this Court, about the respondent’s counsel’s behaviour at trial were “tantamount to an allegation that the judgment was obtained by fraud”.  As well, the material before the Court on the leave application did not suggest that such an allegation could credibly have been made.  If Mr Siemer wished to advance that contention, he should have done so explicitly.  It would not be right to re-open the application for leave to appeal to allow him to advance an implausible argument which, if it were to be made at all, could and should have been advanced in his original submissions.

Solicitor:
Alastair J McClymont, Auckland for Applicant