Stiassny v Siemer

[2013] NZHC 114

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2005-404-1808 [2013] NZHC 114

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

ANDVINCENT ROSS SIEMER Defendant

Hearing:         7 February 2013

Appearances: DM Salmon for Plaintiffs/Respondents

PJL Hunt for Respondents on the recall/set-aside application
Defendant in person

Judgment:      7 February 2013

ORAL JUDGMENT OF TOOGOOD J [APPLICATION TO HAVE COUNSEL DISQUALIFIED]

D Salmon/ITF Hikaka, Lee Salmon Long, Auckland:  [email protected] [email protected]

PJL Hunt, McElroys, Auckland:

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

STIASSNY & ANOR(FORMERLY FERRIER HODGSON) V SIEMER HC AK CIV-2005-404-1808 [7

February 2013]

[1]      Mr Siemer has filed an application to recall a judgment of Cooper J dated

23 December 2008 in proceedings CIV-2005-404-1808[1]  on the grounds that it was obtained by fraud.  That application is opposed by the plaintiff respondents on three grounds:

[1] Korda Mentha v Siemer HC Auckland CIV-2005-404-1808, 23 December 2008.

(a)      First, that the recall application is an abuse of process in that there is no jurisdiction for the Court to order the recall of the judgment at this stage, some four years after the delivery of the judgment;

(b)Second, that, in any event, there is no justification for recalling the judgment, the grounds not reaching the high threshold required; and

(c)      Third, that the recall application amounts to an attempt to defend the proceedings in which the judgment was given and that Mr Siemer is debarred from so defending that proceeding by an order of Potter J in this Court which remains in force.[2]

[2] Ferrier Hodgson v Siemer HC Auckland CIV-2005-404-1808, 9 July 2007 at [68] and [72].

[2]      The recall application is before me for hearing today.  I am told that Mr Hunt has appeared as counsel throughout the lengthy history of the proceeding, both in the High Court and in the Court of Appeal, and the plaintiffs wish him to appear on the recall application.   Mr Siemer alleges, however, that Mr Hunt is compromised as counsel and should be disqualified.

[3]      That submission is based on an allegation of misconduct by Mr Hunt in relation to an issue of security for costs in respect of which Mr Siemer challenged a decision by the Registrar of the Court of Appeal to require security for costs to be paid by him on an appeal.   It is said that, in the course of resisting Mr Siemer’s application  that  he  should  not  pay  security,  Mr Hunt  told  the  Court  of Appeal incorrectly that Mr Siemer had not paid a single costs award made between the parties.  Mr Siemer says that not only was that a statement which misled the Court of Appeal but it was one on which the Court of Appeal’s decision to require payment of

security for costs was based.  He says that the allegation of misconduct is not denied.

[4]      Mr Siemer  submits  that  having  regard  to  that  allegation  of  misconduct, Mr Hunt’s alleged misconduct is an issue in the proceeding to recall Cooper J’s judgment which I am scheduled to hear today.  He says, first, that Mr Hunt ought to be disqualified from appearing as counsel on that application by virtue of r 13.5 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 and, second, that in any event the Court should exercise its inherent power to prevent an abuse of process and regulate its affairs by disqualifying Mr Hunt on the basis that his independence and objectivity in this proceeding is compromised.

[5]      Mr Salmon  has  argued  the  respondents’  position  on  the  disqualification application.   He says, first, that r 13.5.3 of the Client Care Rules does not apply because, whatever might be said about Mr Hunt’s conduct in respect of the security for costs issue before the Court of Appeal, that did not take place in this proceeding but in respect of other (albeit related) proceedings so that, on the wording of r 13.5.3 the rule has no application.  Rule 13.5.3 states (so far as is relevant):

A lawyer must not act in a proceeding if the conduct or advice of the lawyer

... is in issue in the matter before the court.

[6]      Second, Mr Salmon argues that in any event, there is no basis for holding that Mr Hunt  is  not  sufficiently  independent  and  objective  to  appear  on  the  recall application largely on the same basis that whether or not r 13.5.3 is engaged on the recall application, Mr Hunt’s objectivity and ability to assist the Court as counsel is not compromised.

[7]      The allegation that Mr Hunt misled the Court of Appeal is based on what he is  alleged  to  have  said  in  a  submission  to  the  Court  of Appeal  in  respect  of Mr Siemer’s challenge to a decision of the Registrar of the Court of Appeal to order payment  of  security  for  costs  in  an  appeal  by  Mr Siemer  from  a  judgment  of Andrews J[3] dated 18 May 2012.  In that decision, Andrews J struck out a statement of claim by which Mr Siemer sought to challenge on a collateral basis the judgment of Cooper J of 23 December 2008 in respect of which the present recall application

is made.

[3] Korda Mentha (formerly Ferrier Hodgson) v Siemer HC Auckland CIV-2005-404-1808, 18 May

2012.

[8]      Mr Siemer argued that it is plain on the face of Andrews J’s judgment that the judgment was made in what might be described as the ‘2005 proceedings’ because that much appears on the cover page of the judgment as the first Court reference. Mr Salmon’s point, however, is that the appeal against Andrews J’s judgment was an appeal against the Judge’s decision to strike out proceedings which Mr Siemer had issued in 2012 and which were given a file number CIV-2012-404-1133.  It is clear that, whatever the file references on the intitulment might have indicated was the judgment which was issued, the application for recall in the 2005 proceedings was

adjourned[4]  and the judgment was concerned only with the strike-out application in

the 2012 proceedings.[5]   The appeal which Mr Siemer then brought against Andrews

J’s judgment was concerned with the 2012 proceedings only.

[4] Ibid at [4].

[5] At [5].

[9]      It  follows  that  there  is  substance  to  the  submission  that  the  alleged misconduct  of  Mr Hunt  before the  Court  of Appeal  did  not  occur in  this  2005 proceeding.    I  therefore  uphold  the  argument  that  Mr Hunt’s  conduct  in  this proceeding is not an issue before the Court on the present application to recall Cooper J’s judgment which is in respect of the 2005 proceeding only.  Further, there is evidence provided by memoranda attached to an affidavit sworn and filed by Andrew Colgan dated 31 January 2013, explaining the statement that costs awards had not been paid by Mr Siemer.   The evidence indicates to me that at best the statement  made  by  Mr Hunt  may  have  been  ambiguous  and  any  ambiguity  is explained by the subsequent memoranda.

[10]     I am not persuaded that anything Mr Hunt is alleged to have said in the Court of Appeal in the 2012 proceedings justifies the conclusion that he should be debarred from appearing in respect of the recall application.  In coming to that view I have taken into account the recent  judgment of the  Court of Appeal in Fava v Aral

Property Holdings Limited,[6] and in particular to the discussion of the disqualification

[6] Fava v Aral Property Holdings Limited [2012] NZCA 585.

issue by the Court of Appeal at [27]-[37] of that judgment.  In particular, I note that the  Court  of  Appeal  said  it  found  helpful  points  made  by  Fisher J  in  Clear

Communications v Telecom.[7]    Having regard to the matters identified at [34] of the

Court of Appeal’s judgment, I have come to the view that whatever might be said about Mr Hunt’s conduct in relation to the Court of Appeal issue of security for costs, that would have no effect on the effective or efficient administration of justice in respect of the recall application.  There is no need to disqualify Mr Hunt in order to safeguard the future conduct of the recall application, particularly having regard to the need for Mr Siemer to receive a fair hearing on that application.  I also note that the Court of Appeal adopted Fisher J’s view that a litigant should not be deprived of counsel of choice without good reason; that is particularly apt in a case which has a lengthy history and counsel, having been involved for one of the parties, is asked to continue an involvement.

[7] Clear Communications Ltd v Telecom Corp of New Zealand (1999) 14 PRNZ 477 (HC).

[11]     Mr Siemer has sought in addition to an order disqualifying Mr Hunt from appearing, referral of the alleged misconduct to the Law Society by the Court, but he has already put that matter in issue before the Law Society by making his own complaint.  To the extent that what Mr Hunt may have said in a memorandum before the Court of Appeal continues to be a live issue, the Supreme Court is likely to be seized of that issue in respect of Mr Siemer’s application to appeal Wild J’s decision in respect of the security for costs issue.

[12]     For  those  reasons  the  application  to  disqualify  Mr Hunt  as  counsel  is declined.

[13]     Prima facie the respondents are entitled to costs.  The respondents shall file any costs memorandum and serve it on Mr Siemer on or before 22 February 2013.  If Mr Siemer wishes to reply to an application for costs he should file and serve a memorandum in reply by 8 March 2013.  I will then deal with questions of costs in respect of the disqualification application on the papers unless it appears to me that a further hearing is required.

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

Toogood J