Siemer v Stiassny

JurisdictionNew Zealand
CourtSupreme Court
JudgeBlanchard,Tipping,William Young JJ
Judgment Date03 June 2011
Neutral Citation[2011] NZSC 63
Date03 June 2011
Docket NumberSC 49/2011

[2011] NZSC 63

IN THE SUPREME COURT OF NEW ZEALAND

Court:

Blanchard, Tipping and William Young JJ

SC 49/2011

Between
Vincent Ross Siemer
Applicant
and
Michael Peter Stiassny
First Respondent

and

Korda Mentha Formerly Ferrier Hodgson
Second Respondent
Counsel:

Applicant in person

J G Miles QC and P J L Hunt for Respondents

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.

Held: The Court of Appeal recognized that Siemer's expressions did not have any apparent anti-Semitic connotation but was nonetheless of the view that it was open to the High Court Judge to conclude on the basis of the material as a whole that Siemer was “poking racial gibes” at Stiassny. In light of this, and in the more general context of the way the Court described Siemer's behaviour, there was nothing of substantial moment in this proposed appeal point.

On the second question, it was clear that the egregiousness of Siemer's conduct lay not so much in the detail of his allegations against Stiassny which, while serious enough, must have been surpassed, in terms of sting, in other cases. Rather, it lay in the unusually broad scope and harassing nature of Siemer's campaign against Stiassny and his persistence in defiance of court orders. The Supreme Court had not surveyed Commonwealth jurisprudence in search of a case which was worse in the respects just mentioned, but interestingly, if there was a worse case, it has not been identified by Siemer. In light of this, this complaint did not warrant leave to appeal.

There was nothing in the material put to the Court by Siemer to suggest anything approaching bias. The failure of the Court of Appeal by not referring the conduct of counsel for the respondent to the Law Society did not display bias. If Siemer was of the view that counsel was guilty of professional misconduct, there was no reason why he should not complain himself.

Application for leave to appeal 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...

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