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Siemer v Chief Executive, Department of Corrections HC Auckland CIV 2010-404-3909 [2010] NZHC 1142 (2 July 2010)

Last Updated: 14 July 2010

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV 2010-404-3909}

BETWEEN VINCENT ROSS SIEMER Applicant

AND THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS Respondent

Hearing: 30 June 2010

Appearances: F Deliu for applicant

V Casey for respondent

Judgment: 2 July 2010

_{JUDGMENT OF ALLAN J}

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 4.30 pm on Friday 2 July 2010

Solicitors:

F Deliu, Auckland fdeliu@amicuslawyers.co.nz

_{Crown Law, Wellington, Victoria.casey@crownlaw.govt.nz}

VINCENT ROSS SIEMER V THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS HC AK CIV

2010-404-3909 [2 July 2010]

[1] This is an application for a writ of habeas corpus. On the morning of Tuesday, 29 June 2010, Mr Siemer arrived at Auckland International Airport aboard a flight from the USA. He was then arrested and detained pursuant to a warrant signed by a Judge of this Court.

[2] His detention arises by reason of a sentence of imprisonment for contempt imposed upon him in this Court, and subsequently varied by the Court of Appeal and then by the Supreme Court.

[3] Mr Siemer argues that the warrant, although valid on its face, is nevertheless bad because it is based upon judgments of the Courts which are fundamentally flawed. He therefore contends that he must be released immediately.

[4] For the respondent Ms Casey argues that the warrant is unimpeachable, because it rests upon the terms of judgments duly delivered by this Court, the Court of Appeal and the Supreme Court. If Mr Siemer is dissatisfied with the terms of those judgments then established procedures are or were available to him. They do not include the present application, which she argues, amounts to an abuse of process.

Background

[5] For some years Mr Siemer has been engaged in hard fought litigation against Mr M Stiassny, an Auckland chartered accountant, and his interests. In 2005, after hearing detailed argument, Ellen France J granted an interim injunction restraining Mr Siemer from publishing certain information about Mr Stiassny: Ferrier Hodgson v Siemer HC Auckland CIV-2005-404-1808, 5 May 2005. An appeal by Mr Siemer to the Court of Appeal failed: Siemer v Ferrier Hodgson CA87/05, 13 December

2005.

[6] Subsequently, after a further defended hearing, Potter J determined that

Mr Siemer had published material in breach of the injunction and that he was in

contempt of Court. She imposed a fine of $15,000: Ferrier Hodgson v Siemer HC Auckland CIV-2005-404-1808, 16 March 2006. Mr Siemer‘s appeal to the Court of Appeal against that decision was dismissed: Siemer v Stiassny [2008] 1 NZLR 150.

[7] Mr Siemer‘s application for leave to appeal to the Supreme Court was declined: Siemer v Stiassny [2007] NZSC 53.

[8] A short time later Mr Siemer appeared once more before Potter J who found him again to be in contempt in respect of the publication of further information. This time he was imprisoned for a term of six weeks: Ferrier Hodgson v Siemer HC Auckland CIV-2005-404-1808, 9 and 13 July 2007.

[9] In the light of that history, the Solicitor-General formed the view that Mr Siemer was continuing to breach the interim injunction granted by Ellen France J and that he should be further committed to prison for contempt until further order of the Court. The Solicitor-General‘s application was heard by a Full Court of this Court (Chisholm and Gendall JJ) on 16 and 17 June 2008: Solicitor-General v Siemer HC Auckland CIV-2008-404-472, 8 July 2008.

[10] In that judgment the Court held at [89] that:

a) The terms of the injunction are clear and ambiguous [sic], the order is lawful, and it remains binding on Mr Siemer until it is discharged.

b) He was aware of the injunction, having been served with it and having taken part in Court challenges to it.

c) Since he was sent to prison by Potter J, Mr Siemer has been knowingly involved in, and a party to, further publications of the websites in contravention of the injunction and his arguments based on double jeopardy, res judicata and futility are without merit.

d) His involvement in the publications since he was sent to prison constitutes a serious and deliberate attempt to thwart and impede the proper administration of justice.

[11] The Court determined that a writ of arrest should issue, and made an order committing Mr Siemer to prison for a period of six months. Both the writ and the

order were, however, suspended pending further order of the Court, to give Mr Siemer an opportunity to remove from the relevant website the offending material that was the subject of the application. If he removed all of the offending material prior to 1 August 2008 and provided a suitable undertaking that it would not be placed back on the website, then the Court indicated it would hear further submissions from the Solicitor-General and Mr Siemer as to penalty. If he did not do so, then he was to be committed to prison for six months. Either way, Mr Siemer was directed to attend at Court on 1 August 2008.

[12] Mr Siemer did not appear on 1 August; he was accordingly committed to prison for six months.

[13] Mr Siemer appealed to the Court of Appeal which granted him bail pending a hearing in determination of his appeal. The judgment of the Court of Appeal was delivered on 9 March 2009: Siemer v Solicitor-General [2009] 2 NZLR 556 (CA). The Court concluded that the contempt proceedings were properly classified as civil in character, but that the sanction imposed by this Court (a fixed term of imprisonment not contingent on continued defiance of the Court order) was in the nature of a criminal rather than a civil sanction. The effect was that this Court had applied a punitive sanction which meant that the proceedings had a criminal character for the purposes of the New Zealand Bill of Rights Act 1990 (NZBORA). The Court of Appeal held that such a sanction was available only if Mr Siemer had been offered the election of trial by jury.

[14] In consequence, the Court of Appeal quashed the term of imprisonment of six months imposed by this Court and replaced it with a term of imprisonment of a maximum of six months. This was subject to Mr Siemer‘s compliance with the injunction and his provision of an undertaking to the Court to comply, at which time the term of imprisonment would come to an end.

[15] Mr Siemer appealed to the Supreme Court: Siemer v Solicitor-General [2010] NZSC 54. The judgment of that Court was delivered on 17 May 2010 at a time when Mr Siemer was overseas. The minority (Elias CJ and McGrath J) held that the established summary procedure for all contempt of Court proceedings

whether civil or criminal was a justified limitation of the right to a jury trial under s 24(e) of the NZBORA. In consequence, Mr Siemer‘s right to a jury trial had not been breached by the process applied in the High Court. Elias CJ and McGrath J considered that the finite sentence imposed by this Court was correct in principle and did not require modification, as had occurred in the Court of Appeal.

[16] The majority (Blanchard, Wilson and Anderson JJ) took a different view. They considered that the NZBORA guarantee required a generous reading. Where at a trial a penal consequence is in prospect and the term actually available could exceed three months, then ss 24 and 25 rights must incorporate the right to elect trial by jury (at [56]). Accordingly, the majority held, there was no relevant distinction for contempt purposes between imprisonment for criminal and civil contempts (at [57]).

[17] At [66] the majority said:

[66] In summary: to this point we have determined: (1) that s 24(e) of the Bill of Rights Act requires a jury trial to be made available upon election to any person faced with the possibility of being imprisoned for more than three months; (2) that someone who is the subject of an application for committal for a contempt faces that possibility even if the prosecution seeks or suggests a lesser penalty, including an order enabling imprisonment to cease as soon as the contempt is no longer being committed; and (3) that in New Zealand a proceeding for any contempt of court (other than one which is a statutory offence carrying a maximum term of imprisonment for more than three months) can only be dealt with by way of summary (judge alone) process.

[18] At [67] the majority held that as a necessary consequence of the enactment of s 24(e) the power of a New Zealand Court to impose a sentence of imprisonment for contempt has been limited to imprisonment for no more than three months and/or a fine. That was because the jury trial procedure for contempt was undesirable, in that it would undermine the authority of the Court by interposing a body of lay persons between the Court‘s order and its enforcement, so giving them the task of interpreting the order. That was a task that should be for the Court alone (at [65]).

[19] In consequence, the majority said at [70]:

[70] We have given thought to whether the matter should now be returned to the Court of Appeal for it to reconsider the appropriate sentence.

We believe, however, that even allowing for the fact that the Court did not appreciate that it was imposing a sentence which was above the maximum, and therefore did not put its mind to the question of whether the case demanded a sentence at or near the maximum actually available, it is very plain the Court considered the matter to be very serious (it was not Mr Siemer‘s first contempt) and would, if it had been conscious of the limit on its powers, have chosen a three-month term. It was of course making the term subject to a condition which would give Mr Siemer the keys to his own prison. Anything less than three months might, in the case of someone who had already served time for breach of another court order, have been unlikely to produce compliance, particularly when the effect of s 86 of the Parole Act is factored in.

[20] In the result the appeal was allowed, and the order made in the Court of Appeal was quashed. It was replaced by an order committing Mr Siemer to prison for a term of a maximum of three months, subject to the proviso that the term of imprisonment would come to an immediate end if Mr Siemer complied with the injunction issued on 5 May 2005 (made permanent in Korda Mentha v Siemer HC Auckland CIV-2005-404-1808, on 23 December 2008) and that he also provided an undertaking to this Court in a form approved by this Court, that he and Paragon Oil Services Ltd would continue to comply with the injunction for so long as it remained in force.

[21] Mr Siemer was directed to surrender to his bail at the High Court at Auckland no later than 4 pm on Thursday 20 May 2010, unless by then he had complied with the injunction and provided the undertaking to this Court in a form approved by it.

[22] Mr Siemer did not surrender to his bail. He was still overseas. As earlier related, he returned to New Zealand on 29 June 2010, and was thereupon arrested and detained.

Grounds for the application

[23] Mr Siemer relies on four separate grounds. They are that:

a) he has never been given proper notice of what he was enjoined from doing, and in any event has never intentionally breached any Court order;

b) the Supreme Court lacked the proper evidential foundation to order him to serve a term of imprisonment for contempt of Court, where the evidence shows that the Crown Law Office and/or the Domain Name Commissioner were satisfied with Mr Siemer‘s compliance, and where impermissible Crown evidence by memorandum was used against him which did not paint a full, fair, or accurate picture;

c) Mr Siemer no longer has control of stiassny.org and is fully compliant in respect of the legal news websites he does control (kiwisfirst.co.nz and kiwisfirst.com), and is therefore unable to comply with the Court‘s order, and thus does not hold the proverbial keys to his freedom in his own pocket or, if he does hold them, he has already used them and is entitled to release;

d) he has never been properly served with a sealed duplicate of the injunction granted by Ellen France J in 2005.

The writ of habeas corpus

[24] It is unnecessary to dwell upon the nature and scope of the habeas corpus remedy. I accept that in appropriate cases it will be available as a remedy to those who have been arbitrarily or unlawfully detained. The ambit and flexibility of the remedy was usefully summarised by Blanchard J in Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616 at [60]:

[60] The great writ of habeas corpus ad subjiciendum – a writ of right – has been the means whereby in Great Britain over some hundreds of years, and in New Zealand since the founding of the nation, the lawfulness of a detention has been able to be tested, and, if found to be unlawful, the release of the detainee obtained. The writ is therefore of great historical and constitutional importance. In the hands of creative lawyers and judges it has proved to be a flexible remedy against oppression and unlawful conduct. In recent years its use in this country may largely have been confined to immigration and refugee matters because alternative convenient and specific remedies have been developed to meet particular problems in the general law. Bail laws and legislation relating to child custody disputes are examples. But habeas corpus is not to be shackled by precedent. It will adapt and enlarge as new circumstances require. Nor, however, in another sense, is the writ to be diminished by its unnecessary use where another effective

remedy is available through which compliance with the law can speedily be ensured and where, overall, the circumstances are not of a kind justifying resort to the writ.

[25] At [63] Blanchard J further observed with respect to the enactment of the

Habeas Corpus Act 2001 (the Act):

[63] We do not consider that the 2001 Act has brought about any relevant change to the substance of the law of habeas corpus. For that matter, neither has it prevented further judicial development.

[26] Mr Deliu emphasises the acknowledged flexibility of the remedy, which is designed to provide summary relief to those detained in a very wide variety of circumstances. In particular, he refers to s 3 of the Act where the term ―detention‖ is defined as including every form of restraint of liberty of the person. And there is express provision in s 6 for the making of an application for a writ of habeas corpus to challenge the legality of a person‘s detention.

[27] Mr Deliu relies also on the provisions of s 14(2), which provides:

(2) A Judge dealing with an application must enquire into the matters of fact and law claimed to justify the detention and is not confined in that enquiry to the correction of jurisdictional errors; but this subsection does not entitle a Judge to call into question—

(a) a conviction of an offence by a court of competent jurisdiction, the Court Martial of New Zealand established under section 8 of the Court Martial Act 2007, or a disciplinary officer acting under Part 5 of the Armed Forces Discipline Act 1971; or

(b) a ruling as to bail by a court of competent jurisdiction.

[28] It is argued that, although the Court is not entitled to call into question a conviction of an offence by a Court of competent jurisdiction, the omission in s 14 of a reference to a contempt finding, albeit criminal in character, leaves open the argument that the Court can and should inquire into matters of fact and law underpinning the present warrant, derived from the contempt finding of the Court.

Discussion

[29] In my view, the case for the applicant is, as Ms Casey submits, misconceived. To grant this application would not only call into question, but effectively over-rule, the judgment of the Supreme Court. Indeed, merely to embark upon the process of reviewing the judgment of that Court would be to countenance an abuse of process. The prohibition against the relitigation of disputes determined by the Courts, outside the ordinary appeal process, has been confirmed on numerous occasions. For example in Reichel v Magrath (1889) 14 App Cas 665 (HL) at 668, Lord Halsbury said:

... I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again.

[30] Later in Hunter v Chief Constable of West Midlands Police [1981] UKHL 13; [1982] AC 529, Lord Diplock said at 541:

The abuse of process which the instance case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another Court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the Court by which it was made.

[31] In Saif Ali v Sydney Mitchell & Co [1980] AC 198, Lord Diplock expressed the same principle at 222:

Under the English system of administration of justice, the appropriate method of correcting a wrong decision of a court of justice reached after a contested hearing is by appeal against the judgment to a superior court. This is not based solely on technical doctrines of res judicata but upon principles of public policy, which also discourage collateral attack on the correctness of a subsisting judgment of a court of trial upon a contested issue by re-trial of the same issue, either directly or indirectly in a Court of co-ordinate jurisdiction.

[32] And at 223 he continued:

My Lords, it seems to me that to require a Court of co-ordinate jurisdiction to try the question whether another Court reached a wrong decision and, if so, to inquire into the causes of its doing so, is calculated to bring the administration of justice into disrepute.

[33] In Bryant v Collector of Customs [1984] 1 NZLR 280 (CA) at 284, the Court of Appeal observed that these principles apply equally whether the second proceedings are criminal or civil.

[34] In a criminal context (Mr Deliu contends that the contempt in this case was criminal in character) an application for a writ of habeas corpus following conviction was considered in Re Newton [1855] EngR 441; (1855) 16 CB 97. At 103, Williams J said:

The averment that the offence was committed within the jurisdiction of the Central Criminal Court was just as material as any other averment contained in the indictment. If the prosecutor had failed to prove it, he would have failed to sustain the indictment, and the prisoner would have been entitled to an acquittal. If any application of this sort could be entertained, it would be open to a party, after a lengthened inquiry at the assizes as to whether or not the alleged offence was committed within the county, to cause himself to be brought up by habeas corpus, and have the whole matter tried over again upon affidavits. So monstrous a state of things never could be.

[35] To the same effect are Re Corke [1954] 1 WLR 899; Re Wring [1960]

1 WLR 138 (QB), and Linnett v Coles [1987] QB 555, where at 561 Lawton LJ observed that, having regard to the limitation on the issue of the writ of habeas corpus in criminal causes, it was not the appropriate remedy save in exceptional cases for appealing against committal orders. Those comments were approved in T v Regional Intellectual Care Agency [2007] NZAR 643 (CA) at [9].

[36] In effect, Mr Siemer seeks to have this Court over-rule the decision of the Supreme Court which led directly to the warrant pursuant to which he is now detained. I am satisfied that it would be an abuse of process for this Court to embark upon the task of reviewing the judgment of the Supreme Court, let alone finding that it was wrong. Indeed, Mr Siemer himself seems in the first instance to have understood that his true remedy lay in applying to the Supreme Court for recall because that is exactly what he did. He made successive applications for recall, dated 4 and 14 June 2010 respectively. Each application was refused in a brief minute from the Court. The applications set out detailed grounds upon which Mr Siemer sought recall. There is a degree of similarity between those grounds and the argument now advanced in this Court.

[37] For the foregoing reasons, I am satisfied that the application for habeas corpus is misconceived and must be dismissed.

[38] However, in deference to Mr Deliu‘s argument, I propose to deal very briefly with the four grounds upon which the application is made because, in my opinion, they would be insufficient in any event to justify the granting of relief.

[39] The first ground is that he has never been given proper notice of what he was enjoined from doing, and that in any event he has never intentionally breached any Court order.

[40] The question of his intention is not for this Court. As to the question of proper notice of what he was enjoined from doing, it is sufficient to refer to [53] and [54] of the High Court judgment which reads:

[53] According to the Crown the interim injunction granted by Ellen France J was unambiguous in its terms. Potter J twice found that to be the case. It plainly prohibits Mr Siemer from publishing, in the sense of making available to the public or a member or Supreme Court of the public, the material specifically referred to in the order. Moreover, he has been directed not to publish the specified information ‗in any form’. Mr Siemer had not suggested that the terms of the injunction were unclear or ambiguous.

[54] We are satisfied that the terms of the injunction granted by Ellen

France J are clear and unambiguous.

[41] Having regard to the detailed and precise terms of the injunction, that finding is plainly correct.

[42] Mr Siemer‘s second argument is that the Supreme Court lacked the proper evidential foundation to order him to serve a sentence of imprisonment for contempt of Court. That is simply a head-on challenge to the correctness of the decision to which that Court came.

[43] At [69] of the judgment of the Supreme Court the majority said:

[69] We must first, however, respond to an attempt made in this Court by counsel for Mr Siemer with a view to persuading us that the High Court had erred in finding that Mr Siemer was in contempt of court. It is not clear whether this submission was advanced before the Court of Appeal. However that may be, the High Court was plainly right. The extracts from the websites

which constituted the material that the Solicitor-General had said in the High Court was in breach of the injunction were provided to us in the written submissions of Ms Laracy, counsel for the Solicitor-General. Mr Lithgow QC did not seek to dispute that it was those passages that the contempt order made by the High Court on 8 July 2008 was related to nor that they continued to appear on the websites. It is quite obvious that the High Court was correct to conclude that they constituted a breach. On the plain meaning of the words in the passages, the argument that there was no breach could not possibly succeed.

[44] It is not open to this Court on a habeas corpus application, even where jurisdiction exists, to review such findings of another court or tribunal. Habeas corpus is a summary remedy to be dealt with on a summary basis. It is available where the detention is plainly unlawful. It is not available in circumstances which effectively oblige this Court to sit in effect as an appellate Court. Having said that, it is clear from the above passage that Mr Siemer‘s own counsel proceeded on the basis that there had been a breach. In any event, this ground was effectively subsumed in Mr Siemer‘s recall applications to the Supreme Court, which raised successively a number of issues going to the substance of the Supreme Court‘s decision; each application was summarily dismissed by way of a brief minute.

[45] The third ground relied upon is concerned with the question of whether Mr Siemer has now complied with the terms of the injunction, or alternatively, is no longer in a position to comply because the websites concerned are now out of his control.

[46] That is simply not a matter for this Court on the present application. If Mr Siemer considers himself to be in a position in which he is entitled to be discharged because he has complied so far as he can with the terms of the order of the High Court (as varied by the Supreme Court), then he must make a proper application to the Court in the proceeding in which the contempt finding was made. The present respondent is not a party to that proceeding; the other parties to that proceeding are not parties to the present application. It is not appropriate, as Mr Deliu invited me to do, to treat the present application for habeas corpus as an application for discharge in the contempt proceedings.

[47] Mr Siemer‘s final ground is that he had never properly been served with a

sealed duplicate of the injunction. The argument is that the evidence before the

Court of service of a sealed duplicate of the relevant order is defective for various procedural reasons. Mr Deliu contends that there is no reliable evidence before the Court to the effect that Mr Siemer ever received a sealed duplicate of the injunction order. That being so, he argues, the Court lacked jurisdiction to commit Mr Siemer for contempt.

[48] Mr Deliu relied upon r 258(3) of the earlier High Court Rules in force at the time. That sub-rule provided:

(3) An order must not be enforced by committal unless the order has been served personally on the person in default or that person had notice or knowledge of the order within sufficient time for compliance with the order.

[49] The Court was therefore unable to make a committal order unless either the earlier order had been personally served on Mr Siemer or he had notice or knowledge of the order in sufficient time for compliance.

[50] In the High Court, their Honours dealt with the question of Mr Siemer‘s

knowledge of the terms of the injunction at [60]:

[60] Clearly the terms of the injunction were known to Mr Siemer. He did not contend otherwise. Proof of service exists and the subsequent hearings in this Court and the Court of Appeal reinforce that Mr Siemer was well aware of the terms of the order. This requirement has also been established.

[51] It appears that Mr Siemer has never taken the point about service of a sealed duplicate until the present application was heard. Mr Deliu accepts that the High Court was correct to say that Mr Siemer was well aware of the terms of the order, and expressly accepts now that Mr Siemer had a copy of the judgment in which the order was made. This argument is completely meritless.

[52] Mr Deliu also referred to the old r 542 but it is concerned with the enforcement of judgments, not interlocutory orders, and is plainly irrelevant.

[53] I conclude that, even if the Court had jurisdiction to entertain this application, none of the grounds relied upon could possibly have led to the granting of the relief sought.

Result

[54] In my judgment, Mr Siemer‘s application for a writ of habeas corpus amounts

to an abuse of process. The application is accordingly dismissed.

C J Allan J