Stiassny v Siemer

[2013] NZHC 154

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2005-404-1808 [2013] NZHC 154

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:      7 February 2013

Reasons:        11 February 2013

REASONS FOR ORAL JUDGMENT OF TOOGOOD J [APPLICATION THAT THE JUDGE RECUSE HIMSELF]

This judgment was delivered by me on 11 February 2013 at 3:00 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

PJL Hunt, McElroys, Auckland:  [email protected]

V Siemer, 27 Clansman Tce, Gulf Harbour:  [email protected]

STIASSNY & ORS V SIEMER HC AK CIV-2005-404-1808 [7 February 2013]

[1]      At the beginning of the hearing of an application to recall a judgment of Cooper J delivered in December 2008,1  Mr Siemer requested that I recuse myself. After hearing argument from him, I delivered a short oral judgment2  rejecting the application and indicating that my reasons would be given in writing in due course. These are my reasons.

[2]      Mr Siemer advanced the following grounds for the recusal application:

(a)      First, that I admitted to him (in the context of an application I dealt with earlier that day for an order that Mr Hunt be disqualified as counsel), that I had not read the file;

(b)Second, that I made it clear to him that I had not read the file and had not listened to his submissions, because after he had referred to a certain exhibit I asked him a question about whether or not he had made a complaint to the Law Society and that was the matter covered by the exhibit to which he had earlier referred;

(c)      Third, he said, that it was evident I did not listen to his submissions on a point related to a complaint to the Law Society because the oral submissions occupied only five minutes;

(d)Fourth, he said that he had appeared before me in other proceedings: one, a challenge he brought, by way of judicial review, to a decision of the Judicial Conduct Commissioner in which I issued a summary judgment dismissing the review application; and, second, that there is an interlocutory application made by him to cross-examine a witness in other proceedings, that application having been heard six months

ago and judgment not having been delivered;

1      Korda Mentha (formerly Ferrier Hodgson) v Siemer HC Auckland CIV 2005-404-1808, 23

December 2008.

2      Stiassny v Siemer [2013] NZHC 153.

application because it was essentially the same issue as I had already ruled  upon  in  respect  of the  application  to  disqualify Mr Hunt  as
counsel;
(f)	Sixth, I should recuse myself because the recall application ought to have been heard by Cooper J whose judgment Mr Siemer seeks to
recall;
(g)	The seventh ground was that this is a serious application and yet the
Court appeared to be acting in a cavalier fashion.  Mr Siemer labelled the Court a ‘kangaroo court’ and said that he had no prospect of a fair
hearing.
[3]	In o	ne of its decisions in the Saxmere case,3 the Supreme Court affirmed the

view of the New Zealand courts that the test for disqualification of a Judge on the grounds of apparent bias was whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question the Judge is required to decide.   As Blanchard J noted in that case, that “principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the

principle that the ... [Court] be independent and impartial”.4

[4]      Importantly, Blanchard J said5  that the lay observer must also be taken to understand three matters relating to the conduct of Judges.  Two of them are relevant here.  The first is that a Judge is expected to be independent in decision-making and has taken the Judicial Oath to “do right to all manner of people after the laws and usages of New Zealand without fear or favour, affection or ill will”.6     Second, a

Judge has an obligation to sit on any case allocated to the Judge unless grounds for

3      Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72; [2010] 1

NZLR 35

4      At [3], adopting the view of the High Court Australia in Ebner v Official Trustee in Bankruptcy

(2000) 205 CLR 337 at [6].

5 At [8].

6      Oaths and Declarations Act 1957, s 18.

are randomly allocated.

[5]      The other Judges in Saxmere agreed with this analysis.  Tipping J said,7 that in considering the appearance of justice being done, “the question is not how the matter appears to a professional Judge, but how it would appear to an ordinary sensible member of the public with appropriate knowledge of all the relevant circumstances including the general workings of the legal system”.  It is against that test that I considered the grounds advanced by Mr Siemer for recusal.

[6]      The first three grounds related to my conduct during the hearing of the application to disqualify Mr Hunt as counsel; I deal with them together.  I concluded that they were entirely misconceived.  When I invited Mr Siemer to make his oral submissions on the disqualification application, he said that the brief submissions were that the application had been made out and he would “leave it at that” unless I had some questions.  I told him that I thought he needed to explain more than that and invited him to take me to the relevant parts of his written material that he might want to emphasise.  Mr Siemer then asked me if I was familiar with the affidavits and I confirmed that I was.   He said he believed the evidence was there and undisputed but he could go over it piece by piece if I wished.  I said to him that was entirely over to him but that if he wanted me to fully understand what he said he might want to take me to the points which deserved emphasis.

[7]      Mr Siemer then said that we should start with exhibit ‘A’ to his affidavit of

23 January 2013; he asked if I would like him to read it to me.  I said I did not, but asked if he wanted to refer to it and whether there was anything in particular of which he wanted me to take note.  Rather than referring me to any part of the document, he made a submission about an alleged misrepresentation by Mr Hunt to the Court of Appeal and concluded with a request that as part of the Court’s order disqualifying  Mr Hunt  I  should  refer  the  misconduct  to  the  Law  Society  for disciplinary action.   I then asked Mr Siemer if he had made any complaint to the Law Society about that matter; he pointed out that the exhibit to the affidavit to

which he had referred was a letter of 14 January 2013 written by him to the Legal

7 At [38].

[8]      It is clear from the exchange between Mr Siemer and me on that point that I did not admit I had not read the file or listened to his submissions.  I had not realised, however, that that was the document which he had earlier mentioned but had not taken me to in the course of his earlier submission.

[9]      As to the subsidiary point that the oral submissions from Mr Siemer only occupied five minutes, my view was that was something entirely in his hands.  When I asked Mr Siemer, after he had dealt with the Law Society complaint issue, whether there was anything else he wanted to say, he responded that considering that the evidence was not only uncontested but was to a large extent accepted, he did not believe that anything further needed to be said.  Mr Siemer did not further develop the submission that I had not listened to his submissions in the earlier hearing, although I infer that what he was really saying was that he was aggrieved that I had not accepted them.

[10]     I then heard from Mr Salmon and later invited Mr Siemer to address me in reply.  He said he would be brief and then addressed me for some time before saying that he did not need to say anything further unless I had any questions.   I said to Mr Siemer that I was not going to insist that he continue to address me but that I had given him the opportunity to do so and that if he wanted to take it I would hear what he had to say.  His response was that there had been “a lot of dancing around and misleading of the Court” and that if, “not having read the file”, I wished to go on with considering the disqualification application he could not be sure what I was going to rely on so was open to answering questions.  I told Mr Siemer that all I was asking him to do was address the matters raised by Mr Salmon and reply to me on those matters and he said he believed he had done that.  At that point I adjourned to consider the submissions and come to a view on the application.

[11]     During the adjournment I read the relevant material, including Mr Siemer’s

affidavit of 23 January 2013 and the attachments, and subsequently dismissed the

had not listened to them; it demonstrated that I regarded them as lacking merit.

[12]     Mr Siemer’s reference to having appeared before me in other proceedings contained the implication that, because on at least one other occasion I had found against him and that on another I had an outstanding judgment, in some way I was biased  against  him.     I  pointed  out  to  Mr Siemer  that  the  judgment  on  the interlocutory application involving the Official Assignee in other proceedings was due to be delivered later that day or the following day.   I considered that the proposition that a Judge must be incapable of giving a litigant a fair hearing, or being seen to do so, because the Judge has ruled against the litigant on a prior occasion or occasions ignores the force and significance of the Judicial Oath and without more

could not possibly meet the Saxmere test.9

[13]     I considered also that the submission that I had predetermined the issue on the recall application because it was essentially the same issue on which I had already ruled in respect of the application to disqualify Mr Hunt was baseless.  On the disqualification issue, I regarded the complaint about Mr Hunt’s conduct before the Court of Appeal in another proceeding as not being in issue on the recall application.  The fact that Mr Siemer wished to repeat the allegation in the recall hearing did not make it a relevant issue.

[14]     As to the proposition that Cooper J should have been assigned to hear the recall application, it is correct that, as a matter of practical convenience, the Judge whose  judgment  a  party seeks  to  have  recalled  is  usually  assigned  to  consider whether it should be recalled.  But it is not necessary that the application be heard by that Judge and r 11.9 of the High Court Rules does not require it.

[15]     The last point made by Mr Siemer was no more than a disrespectful and insulting comment; I ignored it.

8      Stiassny v Siemer [2013] NZHC 114.

9      Saxmere Company Ltd v Wool Board Disestablishment Company Ltd, above n 3.

application.

............................................

Toogood J