BLOMFIELD v THE OWNER AND/OR ADMINISTRATOR OF WWW.LAUDAFINEM.COM [2018] NZHC 2747

BLOMFIELD v THE OWNER AND/OR ADMINISTRATOR OF WWW.LAUDAFINEM.COM [2018]NZHC 2747 [24 October 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2016-044-001215[2018] NZHC 2747IN THE MATTER OF the Defamation Act 1992BETWEEN MATTHEW JOHN BLOMFIELDPlaintiffAND THE OWNER AND/ORADMINISTRATOR OFWWW.LAUDAFINEM.COMUnknown DefendantHearing: 17 October 2018Appearances: M J Blomfield (Self-represented Plaintiff) in PersonJudgment: 24 October 2018JUDGMENT OF EDWARDS J[Application for Contempt]This judgment was delivered by Justice Edwardson 24 October 2018 at 10.30 am, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:To: M J Blomfield, Auckland[1] On 12 October 2016, Woodhouse J made orders prohibiting publication of anyinformation or material relating to Mr Blomfield on the www.laudafinem.com website(".com website") or elsewhere. He also required existing material on the website tobe removed. The orders were subsequently amended on 24 October 2016 to includeanother website, www.laudafinem.org (".org website"), and social media accounts.[2] Mr Blomfield submits that the orders have been breached, and he applies for afinding of contempt of court. Furthermore, Mr Blomfield contends that there is nowsufficient evidence before the Court to be satisfied that Mr Dermot Nottingham isresponsible for the breach.[3] Accordingly, Mr Blomfield asks this Court to impose a short term ofimprisonment on Mr Nottingham for contempt of court. In the alternative, if this Courtis not satisfied that Mr Nottingham is the previously unidentified defendant, thenMr Blomfield seeks an order of contempt to be made with the sentencing to follow ifand when his or her identity is established.The law of civil contempt[4] A knowing breach of a court order may constitute a contempt of court,punishable under the Court's inherent jurisdiction.1 To establish a civil contempt, anapplicant must prove each of the following elements beyond reasonable doubt:2(a) The terms of the order in question were clear, unambiguous, andbinding on the defendant.(b) The defendant had knowledge, or proper notice, of the terms of theorder, typically as a result of personal service of the order upon him orher.31 Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [1].2 See Zhang v King David Investments Ltd (in liq) [2016] NZHC 308 at [39]; Solicitor-General vKrieger [2014] NZHC 172 at [24]–[26]; Mike Pero (New Zealand) Ltd v Krishna [2018] NZHC40 at [40]–[41]; Burmester v Burmester [2018] NZHC 2352 at [12]; Horowhenua 11 (Lake) PartReservation Trust v Taueki [2017] NZHC 4, [2017] NZAR 221 at [3]; Official Assignee vMathiesen [2018] NZHC 843, [2018] NZAR 623 at [14]; Law Commission Reforming the Law ofContempt of Court: A Modern Statute (NZLC R140, 2017) at [5.69].3 Solicitor-General v Krieger [2014] NZHC 172 at [24].(c) The defendant acted in breach of the terms of the order.(d) The defendant's conduct was deliberate in the sense that he or shedeliberately or wilfully acted in a manner that breached the order.Deliberate conduct can be contempt notwithstanding a lack of intent tobreach.4Is there a contempt of court?[5] Mr Blomfield has filed two affidavits in support of his application whichtogether comprise six large bundles of documents. Copies of the offending articlescomprise the bulk of the documents filed. In oral submissions, Mr Blomfield took meto several of those articles which he submitted prove that the defendant was both awareof the orders and deliberately breached them.[6] That evidence, and those articles, evidence a breach of the orders made byWoodhouse J. The original orders prohibited the posting of material on the.com website "or elsewhere". When the .com website was closed down, the materialwas republished on the .org website. The amended orders required the removal ofmaterial from the .org website. Articles referring to Mr Blomfield remain on the.org website, in breach of the court orders.[7] There is also strong evidence that the breach of the orders was madeknowingly, that is, with knowledge of the orders prohibiting publication and requiringremoval of the offending articles. At least one of the articles refers to the fact that theywere first published on the .com website. Several of them make reference to the ordersmade by Woodhouse J, and one includes a picture of Woodhouse J with commentarysuggesting that there was a lack of jurisdiction to make the orders. This is powerfulevidence that there has very likely been a deliberate flouting of court orders.[8] But "very likely" is insufficient to make a finding of contempt. Contemptrequires proof beyond reasonable doubt that the breach was deliberate. Mr Blomfield4 Burmester v Burmester [2018] NZHC 2352 at [12(d)]; citing Carpet Barn-Hamilton-Ltd v Jobe[2017] NZHC 2920 at [13]. See also Siemer v Stiassny [2007] NZCA 117, [2008] 1 NZLR 150 at[10].faces real difficulties in meeting that threshold in a case involving an unidentifieddefendant. Although the proceeding has been served on the owner of the .com website,he or she has not identified him or herself. There is accordingly no evidence from himor her as to the circumstances in which the breach of the orders occurred. Theimportance of the circumstances in which the breach occurred was explained byLang J in McAllister v Solicitor-General:5[47] In other cases, however, the physical acts giving rise to the allegedcontempt may not comprise the whole of the relevant factual matrix. A findingof contempt may depend, for example, upon the judge's conclusion as to whya person has acted in a particular way. In such a case, the judge will need toensure that the person is given an adequate opportunity to provide anexplanation for his or her actions. This may include giving the person anopportunity to provide the judge with further relevant evidence before a finaldecision regarding the issue of contempt is made.[9] Furthermore, a finding of contempt in the absence of an identified defendantwould not serve any immediate purpose. An order punishing a contempt of court isintended to operate coercively so as to enforce compliance with court orders.6 Thatkey purpose would be left unfulfilled by a declaration of contempt without anidentified defendant to whom it may attach. If a defendant is identified at a later pointin time, then the application for contempt may be pursued against that person with thefinding of contempt and the appropriate punishment for that contempt (including aterm of imprisonment if necessary) made at the same time.[10] I consider these hurdles preclude a finding of contempt at this stage with apenalty hearing to be convened later. The preferable course is for the finding ofcontempt, and the penalty hearing, to be addressed at the same time once the defendanthas been identified.Should Mr Nottingham be held in contempt?[11] Mr Blomfield says there is sufficient information before the Court to enableMr Nottingham to be identified as the previously unidentified defendant. He relies on5 McAllister v Solicitor-General [2013] NZHC 2217, [2013] 3 NZLR 708.6 Grant v Bhana [2016] NZHC 2755 at [3].Mr Nottingham's recent conviction and sentence in the District Court for breaches ofnon-publication orders, and five charges of criminal harassment to support that claim.7[12] The breaches of non-publication orders at issue in that case related tosuppression orders made by Winkelmann J in relation to the identities of defendantsin a criminal proceeding. The offending articles were published on the .com website.A police investigation followed which established a link between Mr Nottingham andthe offending articles published on that website. That investigation led to five othercomplainants identified in laudafinem articles who had previously complained aboutharassment by Mr Nottingham and the laudafinem website. Mr Nottingham wasconvicted of the charges following a jury trial. He was sentenced to 12 months' homedetention and community work of 100 hours.[13] This evidence shows a very strong link between Mr Nottingham and thelaudafinem websites. Mr Nottingham's conduct in the criminal proceedings is alsobroadly consistent with the conduct in this case. Mr Blomfield submitted from the barthat the laudafinem websites became inactive following Mr Nottingham's sentence tohome detention which included a condition prohibiting him from using the internet.That adds further substance to Mr Blomfield's belief that Mr Nottingham is behind thebreach of the Court orders.[14] But there is a procedural hurdle to making Mr Nottingham liable for thecontempt at this stage in the proceeding. Mr Nottingham has not been formally joinedto the proceeding as a defendant. He has not been personally served with theapplication for contempt. He has not had an opportunity to contest a finding ofcontempt or make submissions on the appropriate penalty. Notice of the applicationis the minimum first step before a finding of contempt may be made againstMr Nottingham.8[15] Mr Blomfield has found himself in a difficult position with orders in his favourwhich cannot be enforced until the defendant is identified. If Mr Blomfield is nowconfident that he has sufficient evidence that Mr Nottingham is responsible for the7 See R v Nottingham [2018] NZDC 15373.8 See McAllister v Solicitor-General [2013] NZHC 2217, [2013] 3 NZLR 708 at [44]–[45].contempt, then the proper course is to join him as a defendant to the proceeding andpursue the application for contempt against Mr Nottingham directly.Result[16] In the absence of an identified defendant as a party to this proceeding, I declinethe application for contempt.___________________Edwards J