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Michael Stiassny, the Official Assignee and a dead QC’s widow


  • Michael Stiassny, the Official Assignee and a dead QC’s widow

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    Rogue web publisher Vince Siemer is nothing if not persistent in his search for what he believes is fair play. His latest High Court skirmish – in which Mr Siemer established an Official Assignee (OA) exceeded his authority and was wrong to consider him a vexatious and frivolous litigant – emerges as a two steps forward, one step back result.

    But after succeeding with a High Court judicial review against the Official Assignee in March, Mr Siemer now claims the OA – found by the court to have erred in law – went behind his back to secretly and illegally settle a claim against the estate of Auckland Queen’s counsel Robert Fardell.

    What is it all about?

    A long-running struggle pitted Mr Siemer and his wife Jane against his former lawyer Mr Fardell, who died in 2005, Mrs Fardell as executor of her husband’s estate, company receiver Michael Stiassny and – as a result of Mr Siemer’s bankruptcy in 2008 – the Official Assignee, Christoffel Johannes Viljoen.

    It began when, as managing director of Paragon Services, Mr Siemer was concerned by the actions of another director, which he considered to be hostile to the interests of Paragon, and himself and his wife as shareholders. He took advice from high-profile Rolls Royce-driving Auckland QC Robert Fardell.

    Relying on Mr Fardell’s advice, the Siemers instructed him to issue proceedings and obtain an order appointing well-known insolvency specialist Michael Stiassny as the receiver of Paragon. The receivership was later revoked.

    Siemer accuses Fardell

    Mr Siemer claimed Mr Fardell’s advice was negligent in a number of areas and sought $969,021.10, plus interest, from him. The nub of his claim was conflict of interest arising from Mr Fardell’s professional and personal relationship with Mr Stiassny.

    When Mr Fardell was alive he twice offered Mr and Mrs Siemer $175,000 to settle their claim, which they declined. When Mr Fardell (52) died in 2005, the Siemers continued their claim against his estate and widow Kate. After much lurid speculation in legal circles surrounding the circumstances of Mr Fardell’s death, and a public clash with Mr Siemer over evidence, coroner Murray Jamieson found Mr Fardell’s body was covered in injuries consistent with a fall when found at the high-tide mark on Devonport’s Narrow Neck Beach in December, 2005.

    The re-positioned claim against the Fardell estate related to the advice given to Mr Siemer in his capacity as managing director of Paragon.

    Enter the Official Assignee

    But when Mr Siemer was bankrupted in 2008, the OA, Mr Viljoen, became responsible for his estate and had to decide what to do about the Fardell proceeding. Mr Viljoen decided the Fardell case was vested in the OA, he refused to continue the proceeding in Mr Siemer’s name and would not assign the proceeding to Mr Siemer to continue action himself.

    Taking exception to the OA’s decision not to assign the matter to him, Mr Siemer this year sought a judicial review of the decision. Mr Siemer’s grounds were error of law, breach of natural justice, failure to properly take into account relevant considerations, taking into account irrelevant considerations, procedural impropriety, mistake of fact, bad faith and, in a late move, unreasonableness.

    When the case came before the Auckland High Court earlier this year Justice Tim Brewer dispensed with all of Mr Siemer’s claims except one – his claim of error of law.

    Here’s where it gets interesting

    At the time of his bankruptcy Mr Siemer advised OA Mr Viljoen he was involved in, and gave details of, five active court cases. After considering details of the cases, and taking legal advice from Simpson Grierson, Mr Viljoen decided Mr Siemer was a vexatious litigant. Mr Viljoen correctly made the point that it would be improper for him to allow the assignment of claims that were vexatious and frivolous.

    OA goes too far

    But, as Justice Brewer found, Mr Viljoen went too far by going on to describe Mr Siemer and not his claim. Mr Viljoen was concerned the Fardell proceeding would be used by Mr Siemer “as a platform to further your apparent antagonism to the judiciary and legal system”.

    He went on to refer to Mr Siemer having been “the subject of significant adverse judicial comment”, that he had “been the subject of repeated and regular criticism” and that he had been imprisoned for contempt of court.

    Responding to Mr Siemer’s suggestion at the time that High Court Justice Grant Hammond would be called as a witness, Mr Viljoen again went too far when he told Mr Siemer: “This, with respect, simply supports the view that you are unlikely to conduct any claim without engaging in further frivolous acts and processes.”

    Justice Brewer drew the line here, ruling it was not the OA’s role as an officer of the court to shield the court from the attentions of an unreasonable litigant by denying him the chance to advance a case. The OA confused Mr Siemer’s case with Mr Siemer himself – a confusion of “case with advocate” Justice Brewer said amounted to an error of law.

    Justice Brewer found that when the OA decided Mr Siemer was a vexatious litigant, it was not the OA’s place to make that call. Quashing Mr Viljoen’s decision not to assign the proceeding to Mr Siemer, the judge directed the OA to reconsider his decision.

    Siemer claims bad faith

    And this is where Mr Siemer claims he is the victim of bad faith. In a letter dated June 7, Mr Viljoen told Mr Siemer that solicitors for the Fardell estate offered the OA $50,000 in May in settlement of the claims against the estate.

    Mr Siemer had offered $1000 to have the proceeding assigned to him. “At the time the offer was made it was expressly confidential to the Official Assignee and was not to be disclosed to you or any other person,” Mr Viljoen wrote.

    In accepting the $50,000 offer to settle the claim and maximise the return to the OA, Mr Viljoen said the claim against Mr Fardell’s estate was weak and unlikely to succeed. Mr Siemer regards this secret settlement as illegal and “demonstrative of bad faith as any government agency can get”.

    He says $175,000 of public funds have been spent to prevent any settlement. But says the OA’s decision is “great news” because with the evidence he has from the judicial review he says he has a “solid claim” for $250,000 against the OA – a claim Mr Siemer says has much narrower legal issues than in the Fardell case.

    The story, it seems, is far from over. Credit Jock Anderson/ NBR
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