Korda Mentha and Another v Siemer Hc Ak

• Jurisdiction: New Zealand
• Judge: ANDREWS J
• Judgment Date: 18 May 2012
• Neutral Citation: [2012] NZHC 1074
• Court: High Court
• Date: 18 May 2012
• Docket Number: CIV 2005-404-001808

[2012] NZHC 1074

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2005-404-001808

CIV 2012-404-001133

Between

Korda Mentha (Formerly Ferrier Hodgson)

First Plaintiff

and

Michael Peter Stiassny

Second Plaintiff

and

Vincent Ross Siemer

Defendant

and

Vincent Ross Siemer

Plaintiff

and

Michael Peter Stiassny

First Defendant

and

Korda Mentha

Second Defendant

Appearances:

P Hunt for Korda Mentha and M P Stiassny F Deliu and M McFarland for V R Siemer in CIV-2012-404-001133 V R Siemer in person CIV-2005-404-001808

(RESERVED) JUDGMENT OF ANDREWS J

ANDREWS J

[Application by defendants to strike out statement of claim in CIV-2012-404-001133]

This judgment is delivered by me on 18 May 2012 at 2:30pm pursuant to r 11.5 of the High Court Rules.

……………………………………………..

Registrar / Deputy Registrar

Introduction

1 There are two proceedings, and two applications, before the Court. They are related.

• (a) On 21 November 2011 (amended on 28 February 2012) Mr Siemer applied for an order to recall or set aside the judgment given by Cooper J on 23 December 2008 in the proceeding CIV-2005-404- 1808, in which Korda Mentha (formerly Ferrier Hodgson) and Mr Stiassny are plaintiffs and Mr Siemer is defendant.

• (b) On 28 February 2012 Mr Siemer issued the proceeding CIV-2012- 404-1133, in which he is plaintiff and Korda Mentha and Mr Stiassny are defendants. In his statement of claim Mr Siemer alleges that the judgment of Cooper J delivered on 23 December 2008 was obtained by fraud. He claims, by way of relief, an order setting Cooper J's judgment aside. The defendants in the 2012 proceeding have applied to strike out Mr Siemer's statement of claim in that proceeding, on the grounds that it is an abuse of process.

2 In this judgment I shall refer to the proceeding brought by Korda Mentha and Mr Stiassny against Mr Siemer as “the 2005 proceeding”, to the judgment delivered by Cooper J on 23 December 2008 as “the 2008 judgment”, and to Mr Siemer's application for an order for recall or setting aside that judgment as “Mr Siemer's recall application”. I shall refer to the proceeding brought by Mr Siemer against Korda Mentha and Mr Stiassny as “the 2012 proceeding”, and to the application brought by Korda Mentha and Mr Stiassny to strike out Mr Siemer's statement of claim as “the strike-out application”.

3 Mr Siemer's recall application, and the strike-out application, were both set down for hearing on 19 March 2012. This was pursuant to a direction of Allan J, recorded in a Minute issued after the strike-out application had been listed for mention in the Duty Judge list on 14 March 2012. His Honour directed that the strike-out application and Mr Siemer's recall application were both to be before the Judge at the hearing on 19 March 2012, so that the two applications could be considered at the same hearing.

4 In a Minute issued after the hearing on 19 March 2012, 1 I recorded that, by consent, the strike-out application was heard first. I also recorded that at the stage that Mr Hunt had made submissions on behalf of Mr Stiassny and Korda Mentha, Mr Deliu had made submissions on behalf of Mr Siemer, and Mr Hunt had replied, the hearing had lasted almost a full day. I inquired of Mr Siemer as to how much time he required to present submissions on his recall application, and as to the extent to which those submissions might repeat or duplicate Mr Deliu's. Mr Siemer's response was that his submissions would take some two hours, and that he intended to cover different matters, and that it would be appropriate for judgment to be given on the strike-out application before the Court proceeded to consider Mr Siemer's recall application. Having heard further from counsel it was evident that, in any event, there was insufficient time to hear submissions in respect of Mr Siemer's recall application. Accordingly, that application was adjourned, to be considered after judgment is given on the application to strike out.

5 Accordingly, this judgment is only concerned with the strike-out application.

Background

6 A dispute arose between Mr Siemer and Mr Stiassny and the firm in which he is a principal, Korda Mentha, formerly Ferrier Hodgson, after Mr Stiassny was appointed receiver of a company, Paragon Oil Systems Ltd (Paragon). Mr Siemer was a shareholder of Paragon, and the appointment of a receiver was sought in proceedings in which he sought relief from oppression by the majority shareholders. That proceeding was resolved in favour of Mr Siemer in 2001, and the receivership of Paragon was terminated.

7 A dispute had arisen between Mr Siemer and Korda Mentha (then called Ferrier Hodgson) as to costs charged during the receivership. The parties subsequently entered into a compromise agreement. The terms of the compromise

agreement included that neither party would comment on any matter arising in or from the receivership.

8 However, Mr Siemer made numerous complaints concerning Mr Stiassny and his firm, and their conduct of the receivership. In April 2005 Mr Siemer published a number of complaints concerning Mr Stiassny and his firm on a website www.stiassny.org, and advertised the existence of the website on a large billboard erected next to a billboard advertising Vector Ltd (of which Mr Stiassny was chairman). The billboard and website gave rise to the 2005 proceeding.

9 In the 2005 proceeding Mr Stiassny and Korda Mentha alleged that the contents of the website were defamatory. An interim injunction was granted on 8 April 2005, directing that the billboard be removed, that all material relating to Mr Stiassny and Korda Mentha be removed from the website, and restraining publication of any further material.

10 Mr Siemer applied to rescind the injunction. The application was granted, but a new interim injunction was granted which directed Mr Siemer and Paragon not to publish specified material. At that time, Mr Stiassny and Korda Mentha's claim had been amended to include a claim of breach of the compromise agreement. The second injunction was upheld on appeal. 2

11 In judgments of this Court dated 16 March 2006 and 9 July 2007, Mr Siemer was found to have breached the injunction order. In the latter judgment, the Judge made an order debarring Mr Siemer from defending the 2005 proceeding until further order of the Court (the debarring order). This was on the grounds that Mr Siemer had continued to breach the injunction and had refused to pay costs orders made against him. Mr Siemer did not appeal against the debarring order.

12 The substantive 2005 proceeding was heard before Cooper J on 8 October 2008. As a consequence of the debarring order, Mr Siemer did not appear, and was not represented. In the 2008 judgment Cooper J held that the claims made by Mr Stiassny and Korda Mentha were made out. He awarded Korda Mentha damages

totalling $95,000 for defamation and breach of the compromise agreement. His Honour awarded Mr Stiassny damages totalling $825,000 for defamation (including aggravated and exemplary damages). Cooper J also granted a permanent injunction prohibiting any further defamatory publication.

13 Mr Siemer appealed to the Court of Appeal on the ground that the Judge erred in fact and law and that the Judge “engaged in what an impartial observer might likely consider an unprincipled and materially-deceptive summary of the facts, resulting in the evidence being materially and improperly changed, consummating in an unsafe Judgment of the Court.” Mr Siemer set out ten particulars of the latter ground.

14 Mr Stiassny and Korda Mentha applied to strike out the appeal. In a judgment delivered on 22 December 2009 the Court of Appeal struck out his appeal, except to the extent that it related to a challenge to the quantum of the damages award made in the High Court. Further, that challenge was limited to an argument based on the facts as found in the High Court. 3 Mr Siemer then applied for leave to appeal to the Supreme Court. The Supreme Court dismissed the application in a judgment delivered on 20 May 2010. 4

15 On 28 July 2010 Mr Siemer applied to “[s]et aside or rescind” the permanent injunction ordered by Cooper J in the 2008 judgment. By a Minute dated 29 July 2010, Cooper J struck out Mr Siemer's application on the grounds that it was vexatious and an abuse of process. Mr Siemer applied on 13 October 2010 for an extension of time to appeal against Cooper J's decision to strike out his application to set aside or rescind the judgment. Mr Siemer's application was dismissed by the Court of Appeal in a judgment delivered on 14 December 2010. 5

16 On 15 December 2010 (and in an amended application dated 22 December 2010), Mr Siemer applied to the Court of Appeal to recall its judgment of 14 December 2010. In its judgment delivered on 17 February 2011 the Court of Appeal accepted the respondent's submission that the application for recall was plainly an

attempt to have the Court reconsider matters it had already considered and dealt with, and declined the application. 6

17 Mr Siemer then applied for leave to appeal to the Supreme Court against the Court of Appeal's decision declining him an extension of time to appeal. The Supreme Court dismissed the application in a judgment delivered on 9 May 2011. 7 In doing so, the Court agreed with the view of the Court of Appeal that the proposed appeal was an abuse of process. 8

18 On 7 March 2011 Mr Siemer applied to the High Court to vary, set aside, or rescind the permanent injunction ordered by Cooper J. In a Minute dated 17 March 2011, Cooper J ordered that the application be struck out on the grounds that it was vexatious and an abuse of process.

19 On 30 March 2011, the Court of Appeal delivered its judgment on Mr Siemer's appeal against the quantum of the damages award made in the 2008 judgment, having heard the appeal on 2 November 2010. 9 The appeal was dismissed. Mr Siemer...