VINCENT ROSS SIEMER AND JANE CHAPMAN SIEMER AND ANOR V KATE FARDELL EXECUTRIX FOR THE ESTATE OF ROBERT FARDELL HC AK CIV-2003-404-5782

VINCENT ROSS SIEMER AND JANE CHAPMAN SIEMER AND ANOR V KATE FARDELL EXECUTRIX FOR THE ESTATE OF ROBERT FARDELL HC AK CIV-2003-404-5782 3 April 2007IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2003-404-5782BETWEEN VINCENT ROSS SIEMER AND JANE CHAPMAN SIEMER First Plaintiffs AND PARAGON SERVICES LIMITED Second Plaintiff AND KATE FARDELL EXECUTRIX FOR THE ESTATE OF ROBERT FARDELL Defendant AND MICHAEL STIASSNY AND FERRIER HODGSON Non-Parties Hearing: 16 March 2007 Appearances: V R Siemer for First Plaintiffs A A Lusk QC and H M Rice for Defendant Judgment: 3 April 2007 at 11amJUDGMENT OF HON. JUSTICE JOHN HANSEN____________________________________________________________________REASONS[1] The plaintiffs' seek leave to appeal against a decision of Williams J dated 12 December 2006. [2] The background to this dispute is fully set out in the decision of Williams J. For present purposes, on 4 August 2004 Master Lang (as he then was) made orders for non-party discovery and costs. The plaintiffs sought to review that decision.They also applied to have the review transferred to the Court of Appeal. In a reserved decision dated 18 July 2006 this application was dismissed by Williams J. [3] The judgment of the 12 December 2006 dealt substantively with the review in a lengthy decision. Each side was partially successful, and Williams J ordered the costs of the review to "lie where they fall". Of particular import for the present application for leave he reduced the costs award made by Master Lang (as he then was). Williams J allowed Mr Stiassny/Ferrier Hodgson and their solicitors, McElroys, 75 per cent of the hours claimed. In relation to McElroys he allowed photocopying of $575.21, plus the other disbursements claimed. The sums awarded were to be plus GST. [4] Initially the plaintiffs sought to appeal direct to the Court of Appeal. On 12 February 2007 William Young P., issued a Minute referring to s 26P of the Judicature Act 1908, and pointing out that the plaintiffs required leave from the High Court to pursue the appeal. [5] The plaintiffs responded by filing an application for leave to appeal dated 14 February 2007, and filed on 15 February 2007. The application seeks the reversal of Williams J's judgment of 12 December 2006, or, in the alternative, leave for the plaintiffs to file an appeal to the Court of Appeal. They also sought the Registrar to refund the filing fees paid by the plaintiffs for the third amended statement of claim in November 2005, and the costs of filing the plaintiffs' leave application to file this claim again, dated 25 August 2006. The application relies on the following grounds:1. Granting the orders sought is in the overall interests of justice. 2. The subject judgment has the very serious implications of aiding and abetting criminal misconduct as defined by the Crimes Act 1961 if allowed to stand. 3. The subject judgment is part of a pattern of alleged judicial bias by Justice Williams and it relates to a hearing that:a. Followed a formal application filed and served by the plaintiffs asking for orders that Justice Williams recuse himself. b. Followed notice to the Court that all parties to the proceeding were in agreement that Justice Williams should recuse himself. c. Was itself the subject of a transfer application to the Court of Appeal after Justice Williams repeatedly failed to hear the matter over the course of a year. 4. The filing of the third Amended Statement of Claim in November 2005 was deemed by Justice Williams (in August 2006) to be inappropriately accepted by the registrar for filing. 5. The filing of the 25 August 2006 application for leave to refile the third amended statement of claim by the plaintiffs was determined by Justice Williams to be unnecessary and was not heard. 6. As defined in the accompanying Notice of Appeal dated 10 January 2007 attached to this application. 7. Granting the order for leave is the most expeditious means to advance the matter, as the appeal has already been filed with the Court of Appeal and special leave will most certainly be sought if application for leave from the High Court is unsuccessful.[6] Two sets of submissions, dated respectively 21 and 27 February 2007 have been filed in support of the application. The non-parties have also filed written submissions. The plaintiffs and the non-parties are in agreement that the application should be dealt with on the papers. [7] The matter is out of time by some 15 days. It is governed by s 26P(1AA) of the Judicature Act, which reads:[(1AA) The determination of the High Court on a review under subsection (1) is final, unless the High Court gives leave (or the High Court refuses leave, but the Court of Appeal gives special leave) to appeal from it to the Court of Appeal.[8] In Waller v Hider [1998] 1 NZLR 412 (CA), the Court of Appeal set out the relevant applicable principles to leave applications. At 413 Blanchard J, in delivering the decision of the Court, stated:Notwithstanding frequent reminders of the test, applications continue to be made which have little or no prospect of success. Counsel are of course to be commended for making all reasonable efforts to advance the cause of their clients but after a first appeal they must draw back and appraise the state of the case dispassionately, asking whether in truth the disputed matter contains the requisite element of sufficient importance. The scarce time and resources of the High Court and of this Court are not to be wasted, nor additional expense for an unsuccessful client incurred without realistic hope of benefit. Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court. When the disputed matter is entirely or largely a question of fact the task of the applicant under s 67 is harder. An issue of fact in a matter falling within the jurisdiction of an inferior Court will seldom be of public importance. It is better that we make no attempt to define the circumstances in which a factual contest can be taken to have private importance but obviously it may do so if the amount at stake is very substantial or the decision reflects seriously on the character or conduct of the would-be appellant or, as in Cuff, the judgment below has special consequences (for example, bankruptcy) for the losing party. Even then, however, leave cannot be anticipated if the applicant is seeking to disturb concurrent findings of fact in the lower Courts[9] In his written submissions Mr Siemer referred to the House of Lords decision of Hunter v Chief Constable of West Midlands [1981] 3All ER 727, to support his proposition that the Court has an inherent power and duty to take affirmative action when faced with abuse of process. He said this principle was particularly important where the abuse was committed by officers of the Court. [10] The written submissions then proceed to criticise Williams J for poor and improper conduct, bias, ineptitude and personal confusion. [11] Mr Siemer also submits that an appeal will likely expose an apparent attempt by a sitting High Court Judge to aid and abet criminal fraud, as defined under s 228 of the Crimes Act 1961. Mr Siemer submitted that the audio recording and notes taken before and by Williams J will show the opposing counsel attempted to defraud the Court and the plaintiffs.[12] It is also submitted that the record shows that Williams J has "regularly perverted the law to suit, rigorously disputed the unassailable facts on record, regularly claimed the relevant documents were not in the Court file, and, on the issue of leave to file an amended statement of claim alone, has changed his position four times." [13] For the non-parties Mr Hunt's written submissions are to the effect that this was a straight-forward case of non-party discovery in which costs of $23,170.95 have been awarded. He submitted there were no important issues of law, or of public importance. He submitted the case clearly falls outside the accepted criteria for permitting a second appeal to the Court of Appeal.Discussion[14] As Williams J noted at [114] the sole issue for determination in the review was Master Lang's (as he then was) costs allowance. Notwithstanding the narrow point, the matter was considered at considerable length by Williams J in his reserved decision. He considered the documentary evidence submitted to support the claims and deemed it appropriate to reduce the award. The Judge recognised at [4] that while the non-parties have never been parties to this claim, their position had been somewhat closer than many other third parties against which discovery is sought. Indeed, the plaintiffs' position is that but for a compromise agreement, they would be parties to this claim. However, this factor was taken into account by the Judge, but otherwise he applied standard and appropriate principles to the issue before him in reaching his decision. [15] Leaving aside the allegations Mr Siemer makes against the Judge, there is nothing in this matter that raises any question of law or fact capable of bona fide and serious argument where the public, or private, interest is of such sufficient importance to outweigh the cost and delay of a further appeal. [16] The allegations made by Mr Siemer, set out above, are serious and couched in intemperate language. If there was any factual basis for them, they would, ofcourse, warrant the grant of leave. But the allegations are not apparent on the face of the record and there is no other evidence to support them. [17] Accordingly, this application for leave to appeal is dismissed. [18] Mr Siemer applied for the refund of certain fees relating to the filing of the third amended statement of claim. The plaintiffs should only pay a single filing fee for this pleading. If he has paid more than once the fee should be refunded. If he has paid a filing fee on any application for leave to file the third amended statement of claim that should also be refunded. Solicitors D.J. Gates Auckland for Plaintiffs (Counsel B.P. Henry, Auckland) V.R. Siemer, Auckland Heaney & Co., Auckland for Defendant McElroys, Auckland for Non-Parties.