Siemer v Stiassny [2010] NZCA 81 (24 March 2010)

Last Updated: 30 March 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA20/2010 [2010] NZCA 81

BETWEEN VINCENT ROSS SIEMER
Applicant

AND MICHAEL PETER STIASSNY
First Respondent

AND KORDA MENTHA LIMITED
Second Respondent

Court: Hammond, O'Regan and Baragwanath JJ

Counsel: Applicant in person
J G Miles QC and P J L Hunt for Respondents

Judgment: 24 March 2010 at 4 pm

JUDGMENT OF THE COURT

The application for an extension of time to appeal is dismissed.

REASONS OF THE COURT
(Given by Hammond J)

The application

[1] By an application dated 11 January 2010 Mr Siemer has applied for leave to appeal to this Court against a decision of Potter J in the High Court.[1] The ‘leave’ Mr Siemer seeks is, in fact, an extension of time in which to bring his proposed appeal under r 29A of the Court of Appeal (Civil) Rules 2005. This is required because Mr Siemer is some two and a half years out of time under the rules of this Court.
[2] The judgment which Mr Siemer seeks to appeal is a judgment in which the respondents had applied for an order for the committal of Mr Siemer, and associated orders, on the grounds that Mr Siemer had further breached the terms of an interim injunction issued by the High Court on 5 May 2005, and had failed to pay costs ordered by the High Court and this Court. Mr Siemer had filed no notice of opposition and he did not appear in person or by counsel.
[3] The background is that although he had been notified by the High Court of the fixture on 3 May 2007 and again on 25 May 2007, Mr Siemer had chosen to proceed overseas. The fixture was for 4 July 2007 but Mr Siemer communicated with the Court by email to the effect that he would not be back in New Zealand until 11 July 2007. As the Judge noted, Mr Siemer merely advised his absence overseas; he made no formal application for an adjournment. The Judge found: “[His] non appearance is clearly deliberate.”[2]
[4] Mr Siemer had also invited Potter J to recuse on the grounds of bias. Her Honour recorded that “there are no grounds upon which I would be either entitled or required to do so.”[3]
[5] This in turn was against a background in which Potter J had held (in an earlier judgment) that “in seriously and deliberately breaching [certain] injunctions [Mr Siemer was] in contempt of court.”[4] So effectively the High Court was having to deal with continuing and enlarging contempts.
[6] The respondents had also sought an order debarring Mr Siemer from further defending the proceeding. In the result, Potter J held:

(1) Leave is granted to the [present respondents] to issue a writ of arrest to bring Mr Siemer before [the High Court] so the consequences of his contempt of court may determined.

(2) Mr Siemer [is] debarred from defending the proceeding until further order of the Court.

(3) Mr Siemer was ordered to pay the respondents’ costs on a solicitor and client basis.

[7] Mr Siemer seeks an extension of time to appeal against the 9 July 2007 judgment on the grounds that:

“(1) The Judge erred in improperly exercising discretion to contravene essential statutory entitlement to defend oneself in court;

(2) this judgment prohibition resulting from a civil application hearing she conducted ex parte to the Judge had a serious conflict which ought to have prevented her presiding;

(3) it is impossible for the appellant to comply with the financial barrier the Judge imposed to a statutory entitlement to defend himself;

(4) a serious miscarriage of justice has been allowed to occur as a result.”

[8] In his application, Mr Siemer states: “If leave is granted, the appellant seeks from the Court of Appeal a judgment quashing the orders made by the Judge and any unsafe rulings which resulted from this judgment.”
[9] The parties consented to this application being dealt with on the papers.

Discussion

[10] Mr Siemer chose to appeal the earlier contempt finding of Potter J, but he did not appeal the 9 July 2007 judgment. This meant that he had not challenged the “debarment” order, which was to have significant downstream consequences for Mr Siemer. Those practical difficulties need not be further rehearsed here. They are rehearsed by this Court in Siemer v Stiassny and Korda Mentha, in particular at [58]-[62].[5] Further, as early as 27 February 2008 it had been explained to Mr Siemer by this Court that, because he had not appealed the debarment order, he was in real difficulties on that issue. Somewhat obstinately Mr Siemer is recorded as having said “there is no need to separately appeal the debarring order”. The holdings of this Court in Korda Mentha are set out at [63] of that judgment and include: “We are satisfied that [Mr Siemer] has chosen not to appeal against the debarring order or to seek to have it set aside.”
[11] What Mr Siemer did do, was to go off on other tacks in other proceedings. He was found to be in contempt of court by the High Court and committed to prison. His appeal against that decision was based primarily on the proposition that he had a right to trial by jury. A further appeal in relation to that matter is still under consideration by the Supreme Court of New Zealand.
[12] The application for leave is dismissed, for the following reasons.
[13] First, the application is some two and a half years out of time. It would take wholly exceptional circumstances and overwhelming merits for leave to be given after such a delay.
[14] Secondly, some two years ago Mr Siemer was explicitly warned that by not appealing the debarment order he was creating grave difficulties for himself in endeavouring to complain about it. It is hard to see why Mr Siemer did not immediately respond at that time. Either he did not understand the implications of

what he was doing, or he was obdurate. But either way he had a clear and appropriate warning from the Court.

[15] Thirdly, there have been distinct downstream consequences from his failure to take the appropriate course at the time. This is a situation where the decision which was taken and which is the subject of the appeal has, as Mr Miles QC put it, “determined [the subsequent] course of the litigation.” There have been many subsequent hearings, decisions and appeals.
[16] Fourthly, this has created undoubted substantial prejudice and costs to the respondents. They have continued to litigate on the basis that there is no appeal on the disbarment point.
[17] Fifthly, as to the merits of the proposed appeal, it is difficult at this point to see any realistic prospects of success for Mr Siemer. Clearly the Judge had jurisdiction to take the course that she did. The Judge made factual findings which were supported by documentary evidence. See [47] of the judgment sought to be appealed which, amongst other things, recites an email from Mr Siemer to the respondents’ advisors stating, “I hope you don’t mind that I ignore the injunction”. This is hardly a propitious basis for an appeal: Mr Siemer simply thumbed his nose at the law.
[18] In these circumstances we do not find it necessary to plunge again into the saga of Mr Siemer’s continuing contempt, which is understandably raised by Mr Miles.
[19] It is sufficient to observe that on entirely orthodox principles this application does not succeed. It is dismissed.

Solicitors:
McElroys, Auckland for Respondents

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[1] Stiassny v Siemer HC Auckland CIV 2005-404-1808, 9 July 2007.
[2] At [12].
[3] At [13].
[4] At [18].
[5] Siemer v Stiassny and Korda Mentha [2009] NZCA 624.