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Stiassny v Siemer

Stiassny v Siemer

Case [2012] NZHC 301 22 February 2013

Civil Litigation & Procedure

Defamation

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2005-404-1808 [2013] NZHC 301

BETWEEN MICHAEL PETER STIASSNY AND KORDA MENTHA (FORMERLY FERRIER HODGSON) Plaintiffs/Respondents

ANDVINCENT ROSS SIEMER Defendant/Applicant

Hearing: 7 February 2013

Appearances: PJL Hunt for Plaintiffs/Respondents
Defendant/Applicant in person

Judgment: 22 February 2013

JUDGMENT OF TOOGOOD J [APPLICATION FOR RECALL OF JUDGMENT]

This judgment was delivered by me on 22 February 2013 at 5:00 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

PJL Hunt, McElroys, Auckland: peter.hunt@mcelroys.co.nz
V Siemer, 27 Clansman Tce, Gulf Harbour: vsiemer@hotmail.com

STIASSNY & ANOR V SIEMER HC AK CIV-2005-404-1808 [22 February 2013]

Table of Contents Paragraph

Number

Result [1] Introduction – the defamation judgment [5] The lengthy history of the litigation [11]

Mr Siemer’s originating application to set the defamation judgment aside

[12]

The issues on this application to recall the judgment [17]

Jurisdiction to recall or set aside the defamation judgment on the ground that it was obtained by fraud

[20]

Should the judgment be recalled or set aside for fraud? [25]

Allegations of fraud previously disposed of [25]

Different ground now relied upon – the over-charging allegation

Over-charging issue should have been argued on originating application

Over-charging point does not meet test of conscious and deliberate dishonesty

Over-charging point not a matter on which the judgment was founded

[26] [31] [32]

[34]

Is this application debarred? [37] Conclusions [40] This litigation should be brought to an end [41] Orders [43]

Result

[1] Mr Siemer has applied for an order recalling or setting aside a judgment of Cooper J dated 23 December 2008,1 (“the defamation judgment”). The application raises the following issues:

(a) Does the application for recall replicate grounds already argued by

Mr Siemer before the Court of Appeal and Supreme Court?

(b)If not, do any new grounds raised by Mr Siemer justifying setting aside the defamation judgment on the grounds of fraud?

(c) Should this proceeding have been struck out without a hearing because Potter J has debarred Mr Siemer from defending the defamation proceedings?

[2] I have determined that:

(a) Mr Siemer’s criticisms of Cooper J’s findings in the defamation judgment have been addressed and disposed of by the Court of Appeal and the Supreme Court: [10] – [14], [24].

(b)Andrews J heard and dismissed an originating application to set aside the defamation judgment on grounds of alleged fraud identical to those now advanced, except as to one new point: [13], [16] – [18], [25].

(c) The new point - evidence adduced by Mr Siemer on the over-charging issue – could and should have been put to Andrews J in the originating proceeding and it is too late for Mr Siemer to attempt to rely on it now: [30].

(d)The evidence falls far short of establishing an arguable case of conscious and deliberate dishonesty by the plaintiffs justifying the setting aside of a perfected judgment from which appeals have failed: [31] – [32].

(e) In any event, the evidence on the over-charging issue does not assist Mr Siemer to…

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 Stiassny v Siemer

Details

AGLC: Stiassny v Siemer [2012] NZHC 301
Case: [2012] NZHC 301
Decision Date: 22 February 2013

CaseChat Overview and Summary

In the case of Stiassny v Siemer, Vincent Siemer applied for an order recalling or setting aside a judgment of Cooper J dated 23 December 2008, known as the defamation judgment. The application raised issues regarding the grounds for recall or setting aside the judgment on the basis of fraud. The plaintiffs opposed the application on the grounds that the issues raised had already been addressed by the courts and that the application amounted to an abuse of process. The court found that the application for recall replicated grounds already argued by Mr Siemer before the Court of Appeal and Supreme Court. The new ground raised by Mr Siemer, the over-charging allegation, could and should have been put to Andrews J in the originating proceeding, and it was too late for Mr Siemer to rely on it now. The evidence on the over-charging issue did not establish an arguable case of conscious and deliberate dishonesty by the plaintiffs justifying the setting aside of a perfected judgment. The court dismissed the application but reserved the issue of costs for further submissions. The court also made an order prohibiting Mr Siemer from filing any further documents in this Court for the purpose of challenging the defamation judgment and this judgment, except with the leave of a Judge. His right of appeal against this judgment is not affected.

Orders