Vincent Ross Siemer v Michael Stiassny - [2013] NZSC 24

IN THE SUPREME COURT OF NEW ZEALAND

SC 2/2013
[2013] NZSC 24

BETWEEN VINCENT ROSS SIEMER
Appellant

AND MICHAEL STIASSNY
First Respondent

AND KORDA MENTHA
Second Respondent

Court: McGrath, William Young and Glazebrook JJ

Counsel: Applicant in person
D Salmon and D Nilsson for Respondents

Judgment: 26 March 2013

JUDGMENT OF THE COURT

The application for recall is dismissed.

REASONS

Mr Siemer applies for the recall of this Court’s judgment of 7 March 2013.[1]
[1]Siemer v Stiassny [2013] NZSC 11.
The recall application is on the basis that:
(a)the judgment commented on the jurisdiction of the Court of Appeal without hearing from Mr Siemer; and
(b)the judgment did not address one of the grounds put forward by Mr Siemer.
As to the first point, the comment regarding the Court of Appeal’s jurisdiction was made following a decision by this Court that it lacked jurisdiction to hear the proposed appeal. The comment was thus not essential to the decision. In any event, the decision of Wild J was clearly made under s 61A(3) of the Judicature Act 1908 and not (as Mr Siemer submits) under s 61A(1).
As to the second point, all of Mr Siemer’s submissions were considered by the Court. The conclusion in the judgment was that none of the matters raised by Mr Siemer point to a risk of a possible miscarriage of justice and that there were no issues of public or general importance.[2]
[2] At [5] and [6].
The application for recall is dismissed.

Solicitors:
LeeSalmonLong, Solicitors for the Respondents

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.

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Details

Case: [2013] NZSC 24
Decision Date: 26 March 2013

CaseChat Overview and Summary

Vincent Ross Siemer, the appellant, sought recall of a Supreme Court of New Zealand judgment against Michael Stiassny, the first respondent, and Korda Mentha, the second respondent. The original judgment had dismissed Siemer’s appeal, and he applied for the recall on the grounds that the judgment had commented on the jurisdiction of the Court of Appeal without his input and failed to address one of his grounds. The court, comprising McGrath, William Young, and Glazebrook JJ, considered the application.

The court first addressed Siemer’s contention that the judgment had commented on the jurisdiction of the Court of Appeal without hearing from him. The court noted that the comment on jurisdiction was made following its own decision that it lacked jurisdiction to hear the proposed appeal. Therefore, the comment was not crucial to the decision. Furthermore, the decision was clearly made under section 61A(3) of the Judicature Act 1908, contrary to Siemer’s assertion that it was made under section 61A(1). Regarding the second point, the court clarified that all of Siemer’s submissions were considered. The judgment concluded that none of Siemer’s matters pointed to a risk of a miscarriage of justice and that there were no issues of public or general importance.

The court dismissed the application for recall, finding that the judgment had appropriately considered Siemer’s submissions and that the issues raised did not warrant a recall. The application was unsuccessful, and the original judgment remained in place.

Orders