VINCENT ROSS SIEMER AND JANE CHAPMAN SIEMER AND ANOR V KATE FARDELL EXECUTRIX FOR THE ESTATE OF ROBERT FARDELL HC AK CIV-2003-404-5782 [2007] NZHC 262 (3 April 2007)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                               CIV-2003-404-5782



              BETWEEN                  VINCENT ROSS SIEMER AND JANE
                                       CHAPMAN SIEMER
   
                                   First Plaintiffs

              AND                      PARAGON SERVICES LIMITED
           
                           Second Plaintiff

              AND                      KATE FARDELL EXECUTRIX FOR
                 
                     THE ESTATE OF ROBERT FARDELL
                                       Defendant

              AND           
          MICHAEL STIASSNY AND FERRIER
                                       HODGSON
                                       Non-Parties


Hearing:      16 March 2007

Appearances: V R Siemer for First Plaintiffs
             A A Lusk QC and H M Rice for Defendant

Judgment:     3 April 2007 at 11am


              JUDGMENT OF HON. JUSTICE JOHN HANSEN



____________________________________________________________________

                                     REASONS


[1]   The plaintiffs' seek leave to appeal against a decision of Williams J dated
12
December 2006.


[2]   The background to this dispute is fully set out in the decision of Williams J.
For present purposes, on
4 August 2004 Master Lang (as he then was) made orders
for non-party discovery and costs. The plaintiffs sought to review that decision.

VINCENT ROSS SIEMER AND JANE CHAPMAN SIEMER AND ANOR V KATE FARDELL EXECUTRIX
FOR THE ESTATE OF ROBERT FARDELL HC AK CIV-2003-404-5782
3 April 2007

They also applied to have the review transferred to the Court of Appeal. In a
reserved decision dated 18 July 2006
this application was dismissed by Williams J.


[3]     The judgment of the 12 December 2006 dealt substantively with the review
in a lengthy decision. Each side was partially successful, and Williams J ordered the
costs of the review to "lie where they fall".
Of particular import for the present
application for leave he reduced the costs award made by Master Lang (as he then
was).    Williams
J allowed Mr Stiassny/Ferrier Hodgson and their solicitors,
McElroys, 75 per cent of the hours claimed. In relation to McElroys he
allowed
photocopying of $575.21, plus the other disbursements claimed. The sums awarded
were to be plus GST.


[4]     Initially
the plaintiffs sought to appeal direct to the Court of Appeal. On 12
February 2007 William Young P., issued a Minute referring to
s 26P of the
Judicature Act 1908, and pointing out that the plaintiffs required leave from the High
Court to pursue the appeal.


[5]     The plaintiffs responded by filing an application for leave to appeal dated 14
February 2007, and filed on 15 February 2007.
The application seeks the reversal of
Williams J's judgment of 12 December 2006, or, in the alternative, leave for the
plaintiffs
to file an appeal to the Court of Appeal. They also sought the Registrar to
refund the filing fees paid by the plaintiffs for the
third amended statement of claim
in November 2005, and the costs of filing the plaintiffs' leave application to file this
claim again,
dated 25 August 2006. The application relies on the following grounds:



                       1.     Granting the orders sought
is in the overall interests
                              of justice.

                       2.     The subject judgment has the
very serious
                              implications of aiding and abetting criminal
                              misconduct
as defined by the Crimes Act 1961 if
                              allowed to stand.

                       3.     The subject judgment
is part of a pattern of alleged
                              judicial bias by Justice Williams and it relates to a
            
                 hearing that:

                            a. Followed a formal application filed and served by
              
                the plaintiffs asking for orders that Justice Williams
                               recuse himself.

                            b. Followed
notice to the Court that all parties to the
                               proceeding were in agreement that Justice Williams
  
                            should recuse himself.

                            c. Was itself the subject of a transfer application
to the
                               Court of Appeal after Justice Williams repeatedly
                               failed to
hear the matter over the course of a year.

                       4.      The filing of the third Amended Statement of Claim
  
                            in November 2005 was deemed by Justice Williams
                               (in August 2006) to be
inappropriately accepted by
                               the registrar for filing.

                       5.      The filing of
the 25 August 2006 application for
                               leave to refile the third amended statement of claim
         
                     by the plaintiffs was determined by Justice Williams
                               to be unnecessary and was
not heard.

                       6.      As defined in the accompanying Notice of Appeal
                               dated 10
January 2007 attached to this application.

                       7.      Granting the order for leave is the most expeditious

                              means to advance the matter, as the appeal has
                               already been filed with
the Court of Appeal and
                               special leave will most certainly be sought if
                          
    application for leave from the High Court is
                               unsuccessful.

[6]    Two sets of submissions, dated
respectively 21 and 27 February 2007 have
been filed in support of the application. The non-parties have also filed written
submissions.
The plaintiffs and the non-parties are in agreement that the application
should be dealt with on the papers.


[7]    The matter
is out of time by some 15 days. It is governed by s 26P(1AA) of
the Judicature Act, which reads:


       [(1AA) The determination
of the High Court on a review under subsection
       (1) is final, unless the High Court gives leave (or the High Court refuses
       leave, but the Court of Appeal gives special leave) to appeal from it to the
       Court of Appeal.

[8]    In Waller v
Hider  [1998] 1 NZLR 412 (CA), the Court of Appeal set out the
relevant applicable principles to leave applications.             At 413 Blanchard J, in
delivering
the decision of the Court, stated:

       Notwithstanding frequent reminders of the test, applications continue to be
       made
which have little or no prospect of success. Counsel are of course to be
       commended for making all reasonable efforts to advance
the cause of their
       clients but after a first appeal they must draw back and appraise the state of
       the case dispassionately,
asking whether in truth the disputed matter contains
       the requisite element of sufficient importance. The scarce time and resources
       of the High Court and of this Court are not to be wasted, nor additional
       expense for an unsuccessful client incurred
without realistic hope of benefit.

       Upon a second appeal this Court is not engaged in the general correction of
       error.
Its primary function is then to clarify the law and to determine whether
       it has been properly construed and applied by the
Court below. It is not every
       alleged error of law that is of such importance, either generally or to the
       parties, as
to justify further pursuit of litigation which has already been twice
       considered and ruled upon by a Court.

       When the
disputed matter is entirely or largely a question of fact the task of
       the applicant under s 67 is harder. An issue of fact
in a matter falling within
       the jurisdiction of an inferior Court will seldom be of public importance. It is
       better
that we make no attempt to define the circumstances in which a factual
       contest can be taken to have private importance but
obviously it may do so if
       the amount at stake is very substantial or the decision reflects seriously on
       the character
or conduct of the would-be appellant or, as in Cuff, the
       judgment below has special consequences (for example, bankruptcy)
for the
       losing party. Even then, however, leave cannot be anticipated if the applicant
       is seeking to disturb concurrent
findings of fact in the lower Courts

[9]    In his written submissions Mr Siemer referred to the House of Lords decision
of Hunter
v Chief Constable of West Midlands  [1981] 3All ER 727, to support his
proposition that the Court has an inherent power and duty to take affirmative action
when faced with abuse of process.
He said this principle was particularly important
where the abuse was committed by officers of the Court.


[10]   The written submissions
then proceed to criticise Williams J for poor and
improper conduct, bias, ineptitude and personal confusion.


[11]   Mr Siemer also
submits that an appeal will likely expose an apparent attempt
by a sitting High Court Judge to aid and abet criminal fraud, as defined
under s 228
of the Crimes Act 1961. Mr Siemer submitted that the audio recording and notes
taken before and by Williams J will show
the opposing counsel attempted to defraud
the Court and the plaintiffs.

[12]      It is also submitted that the record shows that
Williams J has "regularly
perverted the law to suit, rigorously disputed the unassailable facts on record,
regularly claimed the
relevant documents were not in the Court file, and, on the issue
of leave to file an amended statement of claim alone, has changed
his position four
times."


[13]      For the non-parties Mr Hunt's written submissions are to the effect that this
was a straight-forward
case of non-party discovery in which costs of $23,170.95
have been awarded. He submitted there were no important issues of law, or
of
public importance. He submitted the case clearly falls outside the accepted criteria
for permitting a second appeal to the Court
of Appeal.


Discussion


[14]      As Williams J noted at [114] the sole issue for determination in the review
was Master Lang's
(as he then was) costs allowance. Notwithstanding the narrow
point, the matter was considered at considerable length by Williams
J in his reserved
decision. He considered the documentary evidence submitted to support the claims
and deemed it appropriate to reduce
the award. The Judge recognised at [4] that
while the non-parties have never been parties to this claim, their position had been
somewhat closer than many other third parties against which discovery is sought.
Indeed, the plaintiffs' position is that but for
a compromise agreement, they would
be parties to this claim. However, this factor was taken into account by the Judge,
but otherwise
he applied standard and appropriate principles to the issue before him
in reaching his decision.


[15]      Leaving aside the allegations
Mr Siemer makes against the Judge, there is
nothing in this matter that raises any question of law or fact capable of bona fide and
serious argument where the public, or private, interest is of such sufficient
importance to outweigh the cost and delay of a further
appeal.


[16]      The allegations made by Mr Siemer, set out above, are serious and couched
in intemperate language. If there was
any factual basis for them, they would, of

course, warrant the grant of leave. But the allegations are not apparent on the face
of
the record and there is no other evidence to support them.


[17]   Accordingly, this application for leave to appeal is dismissed.


[18]   Mr Siemer applied for the refund of certain fees relating to the filing of the
third amended statement of claim. The plaintiffs
should only pay a single filing fee
for this pleading. If he has paid more than once the fee should be refunded. If he
has paid a
filing fee on any application for leave to file the third amended statement
of claim that should also be refunded.




Solicitors
D.J. Gates Auckland for Plaintiffs
(Counsel B.P. Henry, Auckland)
V.R. Siemer, Auckland
Heaney & Co., Auckland for Defendant
McElroys,
Auckland for Non-Parties.