Stiassny v Siemer

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2005-404-1808 [2013] NZHC 153

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

ANDVINCENT ROSS SIEMER Defendant/Applicant

Hearing: 7 February 2013

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

Judgment: 7 February 2013

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

PJL Hunt, McElroys, Auckland: [email protected]
V Siemer, 27 Clansman Tce, Guf Harbour: [email protected]

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

[1] Mr Siemer has requested that I recuse myself from hearing an application to recall a judgment of Cooper J delivered in December 2008.[1] The grounds of the application are:
[1] Korda Mentha (formerly Ferrier Hodgson) v Siemer HC Auckland CIV 2005-404-1808, 23
December 2008.

(a) First, that I admitted to him (in the context of an application I dealt with earlier today for Mr Hunt to 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, in any event, I did not listen to his submissions;

(d)Fourth, he said that he had appeared before me in other proceedings: one, a challenge 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 the Official Assignee in other proceedings, that application having been heard six months ago and judgment not having been delivered;

(e) The fifth point was that I have pre-determined the issue on the recall application because it is essentially the same issue as I have 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 be 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 appears to be acting in a cavalier fashion. Mr Siemer’s description was of a ‘kangaroo court’ and he says that he has no prospect of a fair hearing.

[2] For reasons which I shall expand on more fully in writing in due course, I

reject the application and I will now hear Mr Siemer’s submissions.

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

Toogood J

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of Michael Peter Stiassny and Korda Mentha (formerly Ferrier Hodgson) versus Vincent Ross Siemer was heard on 7 February 2013. The plaintiff, represented by PJL Hunt from McElroys in Auckland, sought a judgment on an application to recall a previous judgment delivered by Cooper J in December 2008. The defendant, Vincent Ross Siemer, appeared in person and filed an application requesting the judge to recuse himself from hearing the matter. Siemer's application was based on several grounds, including the judge's alleged admission of not having read the file, not listening to his submissions, and pre-determining the issue on the recall application. The judge, Toogood J, rejected the application for recusal and proceeded to hear Siemer's submissions.

The legal issues that the court had to decide included whether the judge should recuse himself based on the defendant's allegations. The court had to consider the grounds of the application, which included claims of bias, lack of preparation, and pre-determination of the issue. Additionally, the court had to assess whether the defendant's application was justified and whether the court's conduct was fair and reasonable. The court also needed to determine whether the recall application was valid and whether it was appropriate to recall the previous judgment.

The court rejected the application for recusal and heard the defendant's submissions. The court found that the defendant's allegations did not establish any bias or lack of impartiality on the part of the judge. The court also noted that the judge had not pre-determined the issue on the recall application and that the defendant's claims were speculative and not supported by any evidence. The court further found that the defendant's allegations of a kangaroo court and lack of a fair hearing were unfounded and did not warrant the judge's recusal. The court concluded that the recall application was not justified and that the previous judgment should stand.

The court did not make any final orders in this case as the matter was heard as an oral results judgment. However, the court's decision to reject the application for recusal and proceed with the recall application indicates that the court found the defendant's allegations to be without merit. The court's decision to uphold the previous judgment also suggests that the court found the recall application to be unjustified.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established