Siemer v Official Assignee HC Auckland CIV-2010-404-001709 [2011] NZHC 1400 (2 November 2011)

Last Updated: 7 November 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV-2010-404-001709}

BETWEEN VINCENT ROSS SIEMER Plaintiff

AND THE OFFICIAL ASSIGNEE First Defendant

AND KATE FARDELL Second Defendant

Hearing: 27 October 2011

Appearances: Plaintiff Self-Represented

No Appearance of or for the First Defendant

M C Harris for the Second Defendant

Judgment: 2 November 2011

JUDGMENT OF DUFFY J

_{[Re Application to Recall Judgment]}

This judgment was delivered by Justice Duffy on 2 November 2011 at 11.00 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors: Simpson Grierson Private Bag 92518 (DX CX10092) Wellesley Street

Auckland 1141 for the First Defendant

Gilbert Walker P O Box 1595 (DX CP20524) Shortland Street Auckland 1140 for the Second Defendant

Copy To: V R Siemer (Self-Represented Plaintiff) 27 Clansman Terrace Gulf Harbour

_{Whangaparaoa 0930}

SIEMER v OFFICIAL ASSIGNEE HC AK CIV-2010-404-001709 2 November 2011

[1] Following a hearing on 3 February 2011, on 4 August 2011 I delivered a judgment refusing Mr Siemer’s application to cross examine the Official Assignee’s witness, Mr Viljoen: see Siemer v Official Assignee HC Auckland CIV-2010-404-

1709, 4 August 2011. Mr Siemer has now applied for a recall of that judgment. My decision on the recall application should be read together with the judgment of

4 August 2011 (“the judgment”).

[2] The Official Assignee did not participate in the recall application. The second respondent filed no notice of opposition to the recall application, but counsel for the second respondent appeared at the hearing and tendered a memorandum for the purpose of providing the Court with information regarding events that occurred in 2005 relating to discovery in the proceedings that Mr Siemer was then bringing against the late Robert Fardell QC.

[3] The application for recall that Mr Siemer filed with the Court identified three “factual inaccuracies” in the judgment. When the hearing commenced, Mr Siemer responsibly advised me that none of the “factual inaccuracies” had a direct impact on the conclusion and do not qualify for recall of the judgment. He invited me to apply the “slip rule” in r 11.10 of the High Court Rules to correct the “factual inaccuracies”, rather than deal with the application as an application for recall. I propose to approach the application in this way.

[4] Mr Siemer submitted that the Court could do one of three things:

(a) Accept that there were errors in the judgment and correct them; (b) Note that there are errors but make no change to the judgment; or (c) Reject the argument that errors were present.

[5] I consider that the first step is to determine whether there are factual inaccuracies in the judgment and, if so, whether they are of a type which can be cured by the slip rule. I propose to set out and then to deal with each of the three “factual inaccuracies”.

[6] The “factual inaccuracies” as described in the application are as follows:

(a) In Paragraph [15] of the Judgment, Justice Duffy asserts to have “heard” evidence from the Official Assignee that his position not to assign the plaintiff’s claim against the second defendant was because the claim is “lacking in merit and without foundation.” The court did not hear from the Official Assignee AND the position ascribed to the Official Assignee in the Judgment was never expressed.

(b) In Paragraph [18], Her Honour referred to “inadmissible evidence” in the affidavit of the Official Assignee – evidence which undeniably claimed vindication of his “decision not to assign the proceedings” on a clearly irrelevant basis. The evidence is “admissible”. Moreover, it is material to the judicial review. Reliance upon this evidence was further confirmed by his counsel at the hearing upon request of Justice Duffy.

(c) In Paragraph [18], Her Honour referred to Mr Fardell QC “allegedly destroying information” after being ordered to file a statement of defence. As Mr Fardell QC admitted to deliberately erasing his work computer hard drive within days of being ordered by the Court to file a statement of defence in early 2004, this is not “alleged”. Mr Fardell destroyed extensive “evidence” in the form of his computerised legal files. It is legally inappropriate to claim this evidence was mere “information” or to categorise Mr Fardell’s destruction of it as merely an allegation.

Paragraph 15 of the Judgment

[7] Mr Siemer reads [15] as referring to the Court having “heard evidence” from the Official Assignee. Mr Siemer is correct when he asserts that the Court heard no evidence from the Official Assignee at the hearing on 3 February 2011. At the hearing, the Official Assignee was represented by counsel. On the Official Assignee’s behalf, his solicitors had filed and served an affidavit from Mr Viljoen, who is an officer of the Official Assignee. The use in [15] of the phrase “having heard from the Official Assignee” is an expression that was intended to indicate that the Court had heard submissions from the Official Assignee’s counsel. It is an expression that is commonly used in legal proceedings, and persons familiar with legal proceedings would not, in my view, read the phrase literally to mean that the Court actually heard oral evidence from one of the named parties. I do not, therefore, consider that this amounts to a factual inaccuracy that requires correction under the slip rule. Insofar as Mr Siemer may be concerned that the expression may on some later occasion be misunderstood to suggest that the Official Assignee was

personally present at the hearing on 3 February 2011 and gave evidence on that day, the comments contained herein should provide reassurance.

[8] The second part of Mr Siemer’s concern with [15] is that he says it ascribes a position to the Official Assignee that he never expressed at the hearing. Again, Mr Siemer is correct that the Official Assignee never appeared in person to state that Mr Siemer’s proceedings against the estate of the late Mr Fardell (“the Fardell proceedings”) were “lacking in merit and without foundation”. Paragraph 15 sets out the view I had reached of the Official Assignee’s stance as to whether he should assign the Fardell proceedings to Mr Siemer. This assessment was given to explain the Official Assignee’s stance in opposing the judicial review proceeding. When [15] is read in its entirety, it is clear that I have ascribed the view that the Fardell proceedings were lacking in merit and without foundation to the Official Assignee, based on his reliance on the legal principles I refer to in [15], rather than something that he directly expressed. I consider, therefore, that [15] is not factually inaccurate. Accordingly, there is no basis for altering this part of the Judgment under the slip rule.

Paragraph 26 of the Judgment

[9] Mr Siemer’s submission that [26] of the judgment contains a factual inaccuracy is founded on his view that the evidence in question was “irrelevant” but nonetheless “admissible” and “material to the judicial review”. The evidence in question is certain passages of Mr Viljoen’s affidavit. I do not propose to repeat the criticisms I made of that evidence in this judgment.

[10] Paragraph 26 refers to the subject evidence in two ways. First, it expresses the view that as tendered by the Official Assignee, the evidence was irrelevant and objectionable. My reasons for this view are expressed earlier at [23]-[25] of the judgment. Paragraph 26 then goes on to state that the same evidence has become “highly relevant and available for Mr Siemer to use” in pursuing his breach of natural justice and breach of s 27 of the New Zealand Bill of Rights Act 1990 grounds of review. Mr Siemer recognises that the subject evidence is helpful and relevant to those grounds of judicial review. He is concerned that the earlier

reference in [26] to the evidence being inadmissible may be relied upon by a Court to exclude the evidence from admission altogether.

[11] Mr Siemer’s concern is founded on a lack of recognition that evidence can be inadmissible for one purpose but admissible for another. The discussion in [23]-[26], read in its entirety, reveals that I considered that the evidence was inadmissible insofar as the Official Assignee wanted to rely on it to support the decision not to assign the Fardell proceedings to Mr Siemer. But it is equally clear that I considered that the same evidence was highly relevant and thus available for Mr Siemer to use to support his judicial review of the Official Assignee’s decision. For completeness, I add that the judgment refers to the relevance and admissibility of evidence in the judicial review proceeding because the character of the evidence had some bearing on whether leave was granted to Mr Siemer to cross-examine Mr Viljoen.

[12] There is another matter that confirms that [26] contains no factual inaccuracy. Mr Siemer asserts that, as used by the Official Assignee, the subject evidence is irrelevant. In [26] I also described the use of the subject evidence by the Official Assignee as irrelevant. Section 7(2) of the Evidence Act 2006 provides that evidence that is not relevant in a proceeding is not admissible in a proceeding. Thus, the latter use of the term “inadmissible” to describe the use of the subject evidence by the Official Assignee is legally consistent with the evidence being irrelevant.

[13] I do not, therefore, consider that [26] reveals a factual inaccuracy that should be cured by the slip rule. Insofar as there might be a risk of [26] being read as if the subject evidence was inadmissible for all purposes and, therefore, unavailable for Mr Siemer to use to support his judicial review, the reasoning set out herein should exclude that risk.

Paragraph 18

[14] Mr Siemer submits that the reference in [18] to the late Mr Fardell “allegedly destroying information” is factually inaccurate, given that during the interlocutory stage of the Fardell proceeding, Mr Fardell admitted to having data from one of his computers transferred to another computer and during this process not all of the data

on the first computer was transferred to the new computer. At the time, there were discovery orders in place. Mr Siemer infers that Mr Fardell intentionally destroyed the missing data. The issue was raised before Associate Judge Lang at an interlocutory hearing in the Fardell proceeding. The Associate Judge’s views are set out at [78] of his judgment: see Siemer & Ors v Fardell CIV-2003-404-5782 HC Auckland, 22 June 2005. I do not want to traverse them here.

[15] Having heard from Mr Siemer and counsel for the second respondent, as well as reading the judgment of Associate Judge Lang, I have reached the view that the better way of describing what occurred would have been for the relevant part of [18] of the judgment to state “suspect conduct in allegedly intentionally destroying evidence”. It was necessary in [18] to outline the grounds of Mr Siemer’s judicial review application. One of those grounds is the assertion that the Official Assignee failed to take into account a relevant consideration: namely, Mr Fardell’s suspect conduct in allegedly intentionally destroying evidence after he was subject to a direction from the Court. The phrase “allegedly destroying information” that I used in [18] is imprecise as it could be read to suggest that no information/data was lost during the transfer process when in fact there was no dispute that data was lost. The dispute is over whether this loss was inadvertent or intentional, and, if it is the latter, what this signifies.

[16] The slip rule can be used to correct an accidental slip or omission. There has been a failure in [18] to precisely describe the factual basis of one of the grounds of judicial review on which Mr Siemer relies. This is an accidental slip or omission that can be cured by the slip rule. Since the error has been brought to my attention, it is appropriate that I exercise the discretionary power available to me to correct the error. Accordingly, [18] of the judgment is corrected by deleting the phrase “allegedly destroying information” and substituting it with the phrase “allegedly intentionally destroying evidence”.

Result

[17] Paragraph [18] of the judgment Siemer v The Official Assignee and Anor HC Auckland CIV-2010-404-1709, 4 August 2011 is to be corrected pursuant to r 11.10. The remainder of the application is dismissed.

Duffy J