Attorney-General v Siemer

• Jurisdiction: New Zealand
• Judge: Ronald Young,Brown JJ
• Judgment Date: 30 April 2014
• Neutral Citation: [2014] NZHC 859
• Docket Number: CIV-2012-404-008
• Court: High Court
• Date: 30 April 2014

BETWEEN

The Attorney-General

Applicant

and

Vincent Ross Siemer

Respondents

[2014] NZHC 859

CIV-2012-404-008

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

Application under s88B Judicature Act 1908 (“JA”) (restriction on institution of vexatious actions) — Attorney-General (A-G) claimed thatfrom 2003 through to the present, the respondent had conducted a campaign of litigation almost entirely derived from a dispute that arose in 2000 (disputewas between the respondent and a receiver who was appointed to a company in which he had invested) — litigation had grown exponentially to include proceedings against lawyers, the Solicitor-General, the A-G and judges who determined the proceedings — A-G said the proceedings were vexatious because the respondent had used them to challenge the outcome of previous court cases in which he had been unsuccessful — A-G presented court documents from 19 proceedings — whether A-G could use court documents from previous proceedings under s50 Evidence Act 2006 “EA”) (civil judgment as evidence in civil or criminal proceedings) and s130 EA (offering documents in evidence without calling witness) — whether A-G had “cherry-picked” documents — whether proceedings had been vexatious — whether an order under s88B JA could apply to current proceedings.

Counsel:

A M Powell for the Appellant

A J Ellis G K Edgeler for First Defendant

T Ellis, Wellington

JUDGMENT OF Ronald Young AND Brown JJ

Introduction

1 In this proceeding the Attorney-General seeks orders under s 88B of the Judicature Act 1908 that:

• A.No civil proceeding shall, without leave of this Honourable Court, be instituted by Vincent Ross Siemer himself and/or by his agent in any court; and

• B.None of the civil proceedings so far instituted by Vincent Ross Siemer in any court shall be continued by him and/or his agent without such leave.

2 Section 88B relevantly provides:

88B Restriction on institution of vexatious actions

(1) If, on an application made by the Attorney-General under this section, the High Court is satisfied that any person has persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior Court, and whether against the same person or against different persons, the Court may, after hearing that person or giving him an opportunity of being heard, order that no civil proceeding or no civil proceeding against any particular person or persons shall without the leave of the High Court or a Judge thereof be instituted by him in any Court and that any civil proceeding instituted by him in any Court before the making of the order shall not be continued by him without such leave.

…

Summary of parties' cases

The Attorney-General's case

3 The Attorney-General'scase is that from 2003 through to the present time Mr Siemer has conducted a campaign oflitigation almost entirely derived from a dispute that arose in 2000. The dispute is between Mr Siemer and a receiver who was appointed to a company in which Mr Siemer and his wife had made an investment.

4 The litigation has grown almost exponentially and on a scale not previously seen in New Zealand to include claims against the receiver and his company, other lawyers, the Solicitor-General, the Attorney-General, judges who heard and determined the cases brought by Mr Siemer or by the receiver against Mr Siemer, and the Judicial Conduct Commissioner.

5 The principal, but not the sole, reason why those proceedings are said to be vexatious is that Mr Siemer has used them to challenge the outcome of previous court cases in which he has been unsuccessful.

6 The second amended statement of claim refers to 19 distinct legal proceedings instituted by Mr Siemer. In reliance on the principles set out in Brogden v Attorney-General 1 the Attorney-General alleges that those 19 proceedings constitute vexatious proceedings. 2

7 The Attorney-General'sevidence comprised court documents from each of the proceedings which were contended to be vexatious: the pleadings, memoranda, submissions of Mr Siemer and judgments in those proceedings. No witness was called by the applicant.

Mr Siemer'scase

8 While several of the factual allegations are conveniently admitted in the statement of defence dated 20 May 2013, the contention that the legal proceedings were vexatiously instituted is resisted on several grounds. Mr Siemer first made a number of procedural and standing objections. He says that the applicant'sdocument-based case is deficient and unfairly presented, and that for constitutional reasons it is inappropriate that the application be brought by the Attorney-General. He also objected to the persons who currently hold the offices of Attorney-General and Solicitor-General bringing this application.

9 Proceeding from the footing that the Court of Appeal'sapproach in Brogden 3 was either obiter or clearly wrong, Mr Siemer contended that none of the relevant proceedings were vexatiously “instituted”. If they were, however, then they were instituted “with reasonable cause”. In particular Mr Siemer contends that it was necessary to exhaust his domestic remedies as a precondition to his pursuit of complaints in international fora and that such exhaustion of domestic remedies constitutes “reasonable cause” in the context of s 88B.

10 Mr Siemer read to the Court a substantial brief of evidence comprising some 246 paragraphs which addressed the circumstances of each of the allegedly vexatious proceedings and his motivations for bringing them. He was not cross-examined. A short brief of evidence from Mrs Jane Siemer (Mr Siemer'swife) was received by consent. She did not give evidence in person.

11 The focus of the evidence was the 19 proceedings in question. We intend to focus our decision on those proceedings. Nevertheless, to fully comprehend the context of the particular proceedings in issue, it is necessary to refer first to previous litigation in which Mr Siemer was involved.

Background litigation

12 In 2000 Mr and Mrs Siemer entered into a commercial agreement with a company called Waterford Holdings Ltd (“Waterford”), the purpose of which was to facilitate an investment by the Siemers in a business that Waterford was seeking to develop. The agreement would put Paragon Oil Systems Ltd (“Paragon”) in control of the business and allocate shareholdings in that company to the Siemers on the one hand and to the Waterford interests on the other.

13 The relationship broke down due to oppressive conduct by the Waterford interests and the proceeding Siemer v Paragon Oil Systems Ltd was commenced. 4 It appeared to the Siemers that Paragon and their significant financial investment in it were imperilled by the actions of the Waterford interests. On the advice of the late Robert Fardell QC the Siemers asked the High Court to appoint a receiver to

Paragon. On Mr Fardell'srecommendation Mr Michael Stiassny of Ferrier Hodgson, Auckland, was appointed as receiver

14 In one of his two reports to the Court Mr Stiassny recommended that Paragon should cease trading pending the outcome of the proceeding in Siemer v Paragon Oil Systems Ltd. Following the ruling of Hammond J in that proceeding, the shares in Paragon were transferred to the Siemers and the receivership was discharged.

15 However differences arose between Mr Siemer and Paragon on the one hand and Mr Stiassny and his company on the other concerning the conduct of the receivership. Although an agreement was entered into on 9 August 2001 which ostensibly was a settlement of those differences, during 2002 to 2005 Mr Siemer made a series of complaints to professional organisations to which Mr Stiassny belonged.

16 Mr Siemer also erected a billboard in Hobson Street, Auckland, directing attention to a website on which Mr Siemerhad placed information which he claimed demonstrated misconduct by Mr Stiassny and his company. Mr Stiassny and Ferrier Hodgson took proceedings against Mr Siemer in defamation and alleging a breach of the settlement agreement of 9 August 2001. 5 An interim injunction was grantedby Ellen France J requiringthe billboard and website to be taken down and restraining

Mr Siemer from any similar conduct pending resolution of the substantive proceedings. Mr Siemer'sappeal to the Court of Appeal against the decision of Ellen France J was dismissed on 13 December 2005. 6

17 The Attorney-General'ssubmissions note that between 2005 and 2013 Stiassny v Siemer has been the subject of 22 judgments of the High Court, five of the Court of Appeal and four of the Supreme Court. However in those proceedings Mr Siemer was the defendant and none of those judgments count against him for the purposes of the current application under s 88B.

18 It was the Attorney-General'ssubmission that Stiassny v Siemer appears to have been the catalyst for the subsequent litigation to which the present application is directed. In that regard our attention was drawn to two particular aspects of the litigation. First, Mr Siemer suffered a number of interlocutory defeats including his imprisonment for contempt and his being debarred from defending the proceeding. The Attorney-General suggests that the documents which Mr Siemer has filed in that proceeding show that he attributes his setbacks in the course of that litigation to dishonesty on the part of the Stiassny interests and bias and incompetence on the part of judges and officers of the courts.

19 The second point of significance is that Mr Siemer continued to maintain his expression of grievance against Mr Stiassny. In his capacity as a shareholder in Vector Limited, a public company of which Mr Stiassny was a director, Mr Siemer sought to attend the annual general meeting on 19 October 2007 but was not permitted to enter. Mr Siemer subsequently issued proceedings against two security guards (who removed him from the building where the meeting...