Siemer v Stiassny

• Jurisdiction: New Zealand
• Judge: Blanchard,Tipping,William Young JJ
• Judgment Date: 03 June 2011
• Neutral Citation: [2011] NZSC 63
• Docket Number: SC 49/2011
• Court: Supreme Court
• Date: 03 June 2011

Between

Vincent Ross Siemer

Applicant

and

Michael Peter Stiassny

First Respondent

and

Korda Mentha Formerly Ferrier Hodgson

Second Respondent

[2011] NZSC 63

Court:

Blanchard, Tipping and William Young JJ

SC 49/2011

IN THE SUPREME COURT OF NEW ZEALAND

Application by Siemer seeking leave to appeal against a Court of Appeal judgment dismissing his challenge to High Court decision awarding defamation damages of over $900,000 — whether the High Court Judge had wrongly accused Siemer of vile racist abuse — whether the Court of Appeal had been wrong when it said it had not encountered a worse case of defamation in the British Commonwealth.

Counsel:

Applicant in person

J G Miles QC and P J L Hunt for Respondents

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

REASONS

1 Vincent Ross Siemer seeks leave to appeal against a judgment of the Court of Appeal of 30 March 2011 1 dismissing his challenge to a judgment of Cooper J delivered on 23 December 2008 awarding the first respondent, Michael Peter Stiassny, defamation damages totalling $825,000 and the second respondent, Korda Mentha, damages of $95,000 ($75,000 for defamation and $20,000 for breach of an agreement settling a dispute between the parties). 2

2 An unusual feature of the case is that Mr Siemer had been debarred from defending the proceedings. 3 For this and other reasons, his appeal gave rise to a number of procedural difficulties. These were addressed in a judgment of the Court of Appeal of 22 December 2009, 4 the effect of which was to strike out the appeal in all respects save as to the quantum of damages. 5 A subsequent application for leave to appeal against that decision was dismissed by this Court. 6

3 Most of the bases upon which the applicant seeks leave to appeal involve attempts by him to revisit arguments which have been conclusively rejected by earlier judgments and which we therefore need not discuss. These include complaints about Hammond J which have been earlier addressed and rejected by this Court. This leaves in contention three possible issues which we will briefly discuss:

• (a) Mr Siemer's complaint that the judgment of Cooper J wrongly accused him of engaging in “vile racist abuse”;

• (b) a comment made by the Court of Appeal that its attention had not been drawn to a worse case of defamation in the British Commonwealth and that its own researches had not disclosed one; and

• (c) complaints about the way Mr Siemer was treated in the course of a hearing before the Court of Appeal.

4 In the part of his judgment where he was reviewing the case for Mr Stiassny, Cooper J observed:

[48] [Mr Stiassny] complained also that some of the language used by Mr Siemer had apparently been calculated to be offensive to him and caused distress. Examples that he gave included ridicule of his name. Mr Siemer had distributed stickers saying “There is an ‘ass’ in our website www.stiassny.org”. Also there had been references to his Jewish religion and to the persecution of the Jews. Thus, in his letter to the New Zealand

Institute of Chartered Accountants of 14 February 2005 Mr Siemer had written:

News Flash! Michael Stiassny tells Professional Conduct Committee that sky is yellow … again, the sky is yellow.

[49] Further, on www.stiassny.org, on the “interviews page” Mr Siemer had referred to him as a man with “exceptional sway within the small Jewish community” and had commented that “ when the judiciary determines that a ruthless and powerful man's reputation is so priceless … the Gestapo cannot be far behind … people like Adolph [sic] Hitler …”.

[50] On a page headed “the Smartest Guy in the Room”, Mr Siemer had stated:

Stiassny will likely have taken his family and ill-gotten gains to exile in Israel or Switzerland.

[51] On the welcome page, Mr Siemer had referred to Mr Stiassny in the phrase:

… what a good Jew he is (no joke).

(Emphasis added)

Toward the end of his judgment, Cooper J, in what must have been a reference back the paragraphs just set out, said that “the defamatory comments have been accompanied in some cases by clear instances of vile racist abuse”. 7

5 As we understand Mr Siemer's position, the words referred to by Cooper J at [49] which we have italicised appeared in a different “article” (if that is the right word 8) from the reference to Mr Stiassny's “exceptional sway within the small Jewish community”. He claims that his references to Mr Stiassny being Jewish are innocuous and that there was thus no basis for the Judge to find that he had engaged in “vile racist abuse”.

6 Mr Siemer's argument was dealt with by the Court of Appeal in this way:

[69] A second matter is that Mr Siemer takes strong exception to the way in which he was characterised by the Judge as having made “vile racial attacks” on Mr Siemer. In his brief written submissions he said, “It is evidence Cooper J fabricated vile racist evidence because the anti-Semitic quote he created is a combination of words he took from different articles and juxtaposed into an unrepresentative quote”. Before us, he enlarged on

this: he suggested that the Judge had taken “Hitler”, “Gestapo” and “Jew” out of discrete publications and rolled them all up, out of context, into a “quote” that he attributed to the appellant. In fairness to the Judge, the “quote” had been put in that manner by the plaintiffs in their submissions.

[70] We accept that the words Cooper J set out were taken from different articles and that intervening passages were omitted. However, we understand that the articles in question ran continuously on, one from another article on the website. It must also be said that Mr Siemer was, at the very least, sailing very close indeed to the wind. It was hardly unreasonable for the Judge to reach the view that,...