Vincent Ross Siemer v Michael Stiassney

[2013] NZSC 114

IN THE SUPREME COURT OF NEW ZEALAND

SC 90/2013
[2013] NZSC 114

BETWEEN

VINCENT ROSS SIEMER
Applicant

AND

MICHAEL PETER STIASSNY
First Respondent

KORDA MENTHA
Second Respondent

Court:	McGrath, Glazebrook and Arnold JJ
Counsel:	Applicant in person P J L Hunt and J E Tomlinson for Respondents
Judgment:	14 November 2013

JUDGMENT OF THE COURT

A      The application for leave to appeal is dismissed.

BThe applicant is to pay costs of $2,500 to the respondents, plus all reasonable disbursements as fixed if necessary by the Registrar to the respondents.

____________________________________________________________________

REASONS

1. Mr Siemer, by application of 2 October 2012, applied in the Court of Appeal for review (by three judges of the Court of Appeal under s 61A(2) of the Judicature Act 1908) of the decision of Wild J of 5 September 2012,[1] upholding a decision of the Registrar of the Court of Appeal not to dispense with security for costs.[2]

   [1]Siemer v Stiassny CA362/2012, 5 September 2012.

   [2]Mr Siemer’s liability to pay security for costs arose due to his appeal to the Court of Appeal against the judgment of Andrews J in the High Court.  In that judgment, Andrews J had struck out Mr Siemer’s claim against the respondents alleging that they obtained an earlier High Court judgment by Cooper J by fraud.  That decision of Cooper J was given in proceedings against Mr Siemer for defamation and breach of contract.  See Korda Mentha v Siemer [2012] NZHC 1074 (judgment of Andrews J).

2. In a judgment of 6 June 2013, Wild J dismissed that application. [3]  Mr Siemer applies for leave to appeal against that judgment. 

   [3]Siemer v Stiassny [2013] NZCA 206 [Siemer (CA)].

3. This Court, on 7 March 2013, declined leave to appeal against Wild J’s decision of 5 September 2012.[4]  Wild J’s decision of that date is therefore now a final decision.  There is no further possibility of review in the Court of Appeal.  This means that Wild J was correct to dismiss Mr Siemer’s application of 2 October 2012.

   [4]Siemer v Stiassny [2013] NZSC 11 [Siemer (SC)].

4. In any event, there is no right of review under s 61A(2) of the Judicature Act where, as here, Wild J’s decision of 5 September 2012 was made under s 61A(3) of that Act.[5] 

   [5]See Siemer (SC), above n 4, at [4]; and Rabson v Chapman [2013] NZSC 65 at [4]. This was pointed out by Wild J at [4] of his 6 June 2013 judgment: Siemer (CA), above n 3.

5. Mr Siemer complains also that Wild J was “acting in his own cause” in dismissing the application of 2 October 2012.  This submission is misconceived.  Wild J’s judgment of 6 June 2013 was a procedural ruling only.  Further, the fact that there was no right of review under s 61A(2) of the Judicature Act should have been obvious to Mr Siemer after this Court’s decision,[6] declining leave to appeal against Wild J’s decision of 5 September 2012.

Result

[6]Siemer (SC), above n 4.  This was also pointed out by Wild J at [5] of his decision of 6 June 2013: Siemer (CA), above n 3.

1. The application for leave to appeal is dismissed.

2. The applicant is to pay costs of $2,500 plus all reasonable disbursements (as fixed, if necessary, by the Registrar) to the respondents.

Solicitors:
McElroys for Respondents