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Siemer v Stiassny and anor [2006] NZCA 374 (22 December 2006)

Last Updated: 30 January 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA55/06
CA150/06

BETWEEN VINCENT SIEMER
Appellant

AND MICHAEL PETER STIASSNY AND FERRIER HODGSON
Respondents

Hearing: 14 December 2006

Court: William Young P, Glazebrook and O'Regan JJ

Appearances: Appellant in Person
J C Miles QC and M Flynn for Respondents

Judgment: 22 December 2006 at 3pm

JUDGMENT OF THE COURT

A The witness summons in relation to Mr Illingworth is set aside.

B The witness summonses in relation to Messrs Miles and Flynn are not to be issued.

C Further witness summonses will not be issued.

D CA150/06 will be heard at the same time as CA55/06.

E The application to video and webcast the proceedings is declined.

REASONS OF THE COURT
(Given by William Young P)

Introduction

[1] The following issues require rulings:

(a) Whether the witness summons served on Mr Illingworth should be set aside.

(b) Whether witness summonses should issue in relation to Messrs Miles and Flynn.

(d) Whether CA150/06 should be heard at the same time as CA55/06.

(e) Whether the appellants may video and webcast the proceedings.

Whether the witness summons served on Mr Illingworth should be set aside

[2] Mr Illingworth QC appeared briefly for the appellant before Potter J. He has asserted in his affidavit that nothing happened at that time which would be material to the allegations of bias advanced by the appellant. The appellant’s primary purpose in wishing Mr Illingworth to attend is for him to give oral evidence of what he apparently told the appellant about Potter J, evidence which the appellant wishes to rely on as being in the nature of an "expert assessment" of the way that Potter J conducts hearings.
[3] Mr Illingworth maintains that the witness summons should be set aside as vexatious and as amounting to abuse of process on three grounds: first, that there is no waiver of privilege, secondly, that appropriate arrangements have not been made as to travelling and other expenses and, thirdly, inadmissibility of the evidence.
[4] In his submissions in response, the appellant said that he "would expressly waive privilege to the extent this Court deems necessary". That disposes of the point raised by Mr Illingworth as to privilege. Mr Siemer has provided Mr Illingworth with booked travel to and from Wellington. He maintains, and we think rightly, that an arrangement as to costs not having been completed does not provide "a ground for cancelling the summons a full two months ahead of the hearing".
[5] We are, however, in agreement with Mr Illingworth as to the inadmissibility of the proposed evidence. What is in issue in this appeal is whether Potter J displayed bias in the case at hand. General (and opinion) evidence as to the way in which Potter J usually conducts hearings is therefore irrelevant.
[6] Given our conclusion that the evidence is inadmissible, there is no basis for the witness summons to stand and it is set aside.

Whether witness summonses should issue in relation to Messrs Miles and Flynn

[7] The position in relation to Messrs Miles and Flynn is rather different. They were in court and were necessarily a part of the course of events about which the appellant complained. They could, therefore, give relevant evidence in relation to the issues, which are in controversy.
[8] The respondents resist the issue of witness summonses on the basis that it would be inappropriate for the appellant to require Messrs Miles and Flynn to give evidence and, in this way, interfere with the respondents’ choice of counsel at the hearing. Their evidence is not essential to this Court forming a good understanding of what happened as there were other people at the hearing who have provided affidavit evidence.
[9] It seems clear that there will be some oral evidence at the hearing of the appeal, in particular from Mr Garrett who is to be cross-examined by the appellant on his affidavit and perhaps from Mr Henry (in respect of whom a witness summons was issued). There can be difficulties when counsel seek to examine and particularly cross-examine a witness in relation to matters in which that counsel was involved. In such circumstances, counsel may assume the role of a quasi-witness, see Webb Ethics, Professional Responsibility and the Lawyer (2ed 2006) at [14.10.12], Hutchison v Davis [1940] NZLR 491 (CA) and the judgment of Miller J in Beggs v Attorney-General HC WN CIV 2000-485-797 2 November 2005. So there may be ethical or other issues associated with the extent to which Messrs Miles and Flynn could be involved in the examination of witnesses at the hearing. In the end, however, that is something which, at least in the first instance, they are going to have to address with their clients.
[10] More to the point, we see no logical basis upon which the appellant could expect that Messrs Miles and Flynn would give evidence that would assist his cause. They have put in an affidavit from Mr Garrett, the contents of which they must agree with. In that context it is inconceivable that they would say what the appellant would like them to say. The only consequence of them being required to give evidence is that they will thus not be able to represent the respondents at the appeal, a consequence that will not be balanced by any legitimate forensic advantage for the appellant.
[11] In those circumstances we decline the issue of witness summonses.

What, if any, further witness summons should be issued

[12] The appellant has sought witness summonses in relation to his deponents, Ian Horace Andrews, Irene Andrews, Judith Ingram, Penelope Mary Bright, Jane Chapman Siemer, Alan Field Candy and Gary Brown. Since they have not been required to attend for cross-examination on their affidavits, there is no need for them to give oral evidence and accordingly no need for them to appear, under compulsion, at the hearing. Those witness summonses will not be issued.
[13] A witness summons has also been requested in relation to Alan Garrett. He has sworn an affidavit on behalf of the respondents. He is to be cross-examined at the hearing. A consequence of him not being available for cross-examination would be that his affidavit would not be regarded as evidence for the purposes of the hearing. Further, the respondents have made it clear that Mr Garrett will attend.
[14] In those circumstances, a witness summons for Mr Garrett is unnecessary.

Whether CA150/06 should be heard at the same time as CA55/06

[15] A full day is now available on 8 February 2007. CA150/06 will be dealt with at the same time as CA55/06. If there are any additional submissions to be made in relation to the residual issue associated with CA150/06 they can be advanced comparatively briefly.

Whether the appellants may video and webcast the proceedings

[16] In their submissions counsel for the respondents referred to two earlier cases involving the appellant in which he has sought permission to video record proceedings, judgments of Associate Judge Lang in Siemer v Fardell HC AK CIV 2003-404-5782 14 June 2005, and of Associate Judge Doogue in Paragon Services Ltd v Stiassny HC AK CIV 2006-404-593 16 June 2006. There is also the judgment of Williams J in Sagapolu v Commonwealth Securities Ltd (2002) 16 PRNZ 191. The drift of these cases is against the application. So, too, is the existence of a detailed regime permitting electronic recording by media of court proceedings. There is always a risk that recordings made of court proceedings may be put to unfair or inappropriate use and this risk is exacerbated when the recording is made by one the parties. From the point of view of the respondents, this risk is of particular moment in this case given the underlying context in which the litigation is occurring.
[17] Proceedings in the Court of Appeal are customarily audio recorded. Any concern on the part of the appellant that there will not be a full record is therefore addressed.
[18] In those circumstances we decline the application.

Solicitors:
McElroys, Auckland for Respondents

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[2]	Mr Illingworth QC appeared briefly for the appellant before Potter J. He has asserted in his affidavit that nothing happened at that time which would be material to the allegations of bias advanced by the appellant. The appellant’s primary purpose in wishing Mr Illingworth to attend is for him to give oral evidence of what he apparently told the appellant about Potter J, evidence which the appellant wishes to rely on as being in the nature of an "expert assessment" of the way that Potter J conducts hearings.
[3]	Mr Illingworth maintains that the witness summons should be set aside as vexatious and as amounting to abuse of process on three grounds: first, that there is no waiver of privilege, secondly, that appropriate arrangements have not been made as to travelling and other expenses and, thirdly, inadmissibility of the evidence.
[4]	In his submissions in response, the appellant said that he "would expressly waive privilege to the extent this Court deems necessary". That disposes of the point raised by Mr Illingworth as to privilege. Mr Siemer has provided Mr Illingworth with booked travel to and from Wellington. He maintains, and we think rightly, that an arrangement as to costs not having been completed does not provide "a ground for cancelling the summons a full two months ahead of the hearing".
[5]	We are, however, in agreement with Mr Illingworth as to the inadmissibility of the proposed evidence. What is in issue in this appeal is whether Potter J displayed bias in the case at hand. General (and opinion) evidence as to the way in which Potter J usually conducts hearings is therefore irrelevant.
[6]	Given our conclusion that the evidence is inadmissible, there is no basis for the witness summons to stand and it is set aside.

[7]	The position in relation to Messrs Miles and Flynn is rather different. They were in court and were necessarily a part of the course of events about which the appellant complained. They could, therefore, give relevant evidence in relation to the issues, which are in controversy.
[8]	The respondents resist the issue of witness summonses on the basis that it would be inappropriate for the appellant to require Messrs Miles and Flynn to give evidence and, in this way, interfere with the respondents’ choice of counsel at the hearing. Their evidence is not essential to this Court forming a good understanding of what happened as there were other people at the hearing who have provided affidavit evidence.
[9]	It seems clear that there will be some oral evidence at the hearing of the appeal, in particular from Mr Garrett who is to be cross-examined by the appellant on his affidavit and perhaps from Mr Henry (in respect of whom a witness summons was issued). There can be difficulties when counsel seek to examine and particularly cross-examine a witness in relation to matters in which that counsel was involved. In such circumstances, counsel may assume the role of a quasi-witness, see Webb Ethics, Professional Responsibility and the Lawyer (2ed 2006) at [14.10.12], Hutchison v Davis [1940] NZLR 491 (CA) and the judgment of Miller J in Beggs v Attorney-General HC WN CIV 2000-485-797 2 November 2005. So there may be ethical or other issues associated with the extent to which Messrs Miles and Flynn could be involved in the examination of witnesses at the hearing. In the end, however, that is something which, at least in the first instance, they are going to have to address with their clients.
[10]	More to the point, we see no logical basis upon which the appellant could expect that Messrs Miles and Flynn would give evidence that would assist his cause. They have put in an affidavit from Mr Garrett, the contents of which they must agree with. In that context it is inconceivable that they would say what the appellant would like them to say. The only consequence of them being required to give evidence is that they will thus not be able to represent the respondents at the appeal, a consequence that will not be balanced by any legitimate forensic advantage for the appellant.
[11]	In those circumstances we decline the issue of witness summonses.

[12]	The appellant has sought witness summonses in relation to his deponents, Ian Horace Andrews, Irene Andrews, Judith Ingram, Penelope Mary Bright, Jane Chapman Siemer, Alan Field Candy and Gary Brown. Since they have not been required to attend for cross-examination on their affidavits, there is no need for them to give oral evidence and accordingly no need for them to appear, under compulsion, at the hearing. Those witness summonses will not be issued.
[13]	A witness summons has also been requested in relation to Alan Garrett. He has sworn an affidavit on behalf of the respondents. He is to be cross-examined at the hearing. A consequence of him not being available for cross-examination would be that his affidavit would not be regarded as evidence for the purposes of the hearing. Further, the respondents have made it clear that Mr Garrett will attend.
[14]	In those circumstances, a witness summons for Mr Garrett is unnecessary.

[16]	In their submissions counsel for the respondents referred to two earlier cases involving the appellant in which he has sought permission to video record proceedings, judgments of Associate Judge Lang in Siemer v Fardell HC AK CIV 2003-404-5782 14 June 2005, and of Associate Judge Doogue in Paragon Services Ltd v Stiassny HC AK CIV 2006-404-593 16 June 2006. There is also the judgment of Williams J in Sagapolu v Commonwealth Securities Ltd (2002) 16 PRNZ 191. The drift of these cases is against the application. So, too, is the existence of a detailed regime permitting electronic recording by media of court proceedings. There is always a risk that recordings made of court proceedings may be put to unfair or inappropriate use and this risk is exacerbated when the recording is made by one the parties. From the point of view of the respondents, this risk is of particular moment in this case given the underlying context in which the litigation is occurring.
[17]	Proceedings in the Court of Appeal are customarily audio recorded. Any concern on the part of the appellant that there will not be a full record is therefore addressed.
[18]	In those circumstances we decline the application.