SOLICITOR-GENERAL FOR NEW ZEALAND V SIEMER HC AK CIV 2008 404 472

SOLICITOR-GENERAL FOR NEW ZEALAND V SIEMER HC AK CIV 2008 404 472 8 July 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2008 404 472BETWEEN SOLICITOR-GENERAL FOR NEW ZEALAND Applicant AND VINCENT ROSS SIEMER Respondent Hearing: 16 and 17 June 2008 Court: Chisholm J Gendall J Appearances: M F Laracy and K Laurenson for Applicant Respondent in Person (with MacKenzie Friend) Judgment: 8 July 2008JUDGMENT OF THE COURT Table of Contents Para No. Introduction [1] Background [5] The hearing [15]Preliminary matters [16]Solicitor-General's evidence [19]Applicant's evidence [24]Respondent's evidence [32]Issues [41] What this case is not about [45] Position of Solicitor-General [47] Is there an injunction, unambiguous in its terms, binding upon Mr Siemer? [52]Whether the injunction is unambiguous in its terms [53]Whether the injunction is unlawful [55]Conclusion [59]Did Mr Siemer have knowledge of the terms of the injunction? [60] Has there been a breach of the injunction by virtue of the publication of material on the websites? [61]Whether there has been publication in contravention of the order [62]The double jeopardy/res judicata argument [79]The futility argument [83]Conclusion [86] Were the breaches calculated to impede, obstruct or prejudice the administration of justice? [87] Summary thus far [89] What sanction/penalty should be imposed for the contempt? [91] Outcome [100] Costs [102] Postscript [103] Introduction[1] This is a serious case in which the Solicitor-General asks that Mr Siemer be imprisoned indefinitely, because of his contempt of Court. It arises in the following way. [2] On 5 May 2005 Ellen France J granted an interim injunction restraining Mr Siemer from publishing specified information: Ferrier Hodgson & Anor v Siemer & Ors (HC AK CIV 2005-404-1808, 5 May 2005). It followed after full argument. An appeal to the Court of Appeal challenging the decision failed: Siemer & Anor v Ferrier Hodgson & Ors (CA87/05, 13 December 2005). [3] Later, Potter J found that Mr Siemer had published material in breach of that order and was in contempt of Court. A fine of $15,000 was imposed: Ferrier Hodgson & Anor v Siemer & Ors (HC AK CIV 2005-404-1808, 16 March 2006). Mr Siemer's appeal to the Court of Appeal against the decision of Potter J was dismissed: Siemer v Stiassny & Anor [2008] 1 NZLR 150. An application for leave to appeal to the Supreme Court was declined: Siemer v Stiassny & Anor [2007] NZSC 53. Within a short time Mr Siemer was found by Potter J to be in contempt for a second time. He was imprisoned for six weeks: Ferrier Hodgson & Anor v Siemer & Anor (HC AK CIV 2005-404-1808, 9 July 2007 and 13 July 2007).[4] The Solicitor-General now alleges that Mr Siemer has continued to breach the interim injunction granted by Ellen France J by publishing statements on websites to which the public have had access. He seeks to have Mr Siemer held in contempt and committed to prison until further order of the Court. Indemnity costs are also sought.Background[5] Between December 2000 and July 2001 Michael Stiassny of the firm Ferrier Hodgson was receiver of Paragon Services Limited, a company of which Mr Siemer had been managing director. The receivership was triggered by a dispute between shareholders in the company and followed upon Mr Siemer's application. During the receivership and thereafter Mr Siemer was critical of Mr Stiassny's actions as receiver. Ultimately those differences were compromised by an agreement they concluded on 9 August 2001. [6] But that was not the end of the matter. Mr Siemer complained about Mr Stiassny to various bodies including the Society of Accountants. A billboard then appeared in central Auckland which depicted an image of Mr Stiassny's face and contained the words "Michael Stiassny – a true story www.stiassny.org". That website contained material relating to the Paragon receivership and was also very critical of Mr Stiassny and his firm. [7] Mr Stiassny and his firm responded by seeking an ex parte interim injunction requiring the billboard to be taken down and the material removed from the web site. On 8 April 2005 Winkelmann J, ex parte, granted an interim injunction requiring the billboard to be taken down and the material removed from the website. The billboard was removed and the website closed down. [8] As the High Court Rules provide, Mr Siemer applied to have the ex parte injunction rescinded. On 5 May 2005, after a full hearing, Ellen France J rescinded the orders made by Winkelmann J and in their place granted an interim injunction directing Mr Siemer, Paragon, and their servants, contractors or agents not to:"a) Publish in any form any information containing allegations of criminal or unethical conduct or as to improper personal entitlement on the part of the plaintiffs in relation to their conduct of the receivership of Paragon Oil Systems Limited; any claim that the plaintiffs deliberately over-charged Paragon Oil Systems Limited in the sum of $10,000; together with information as to the fact of complaints made by Mr Siemer and/or Paragon Oil Systems Limited to ICANZ or to the Serious Fraud Office; and including any information obtained by Mr Siemer or Paragon Oil Systems Limited in the course of discovery in any proceedings pending further order of the Court; and ".It is that order that the Solicitor-General contends is still being breached by Mr Siemer. [9] Mr Siemer appealed to the Court of Appeal against the decision of Ellen France J granting the interim injunction. In a judgment delivered on 13 December 2005 the Court of Appeal dismissed the appeal. It upheld the injunction, albeit on the basis that it was underpinned by the cause of action in contract (breach of compromise agreement dated 9 August 2001), rather than the cause of action in defamation. It seems that Ellen France J had proceeded on the basis that the primary foundation for the injunction was the cause of action in defamation. [10] Mr Stiassny and his firm discovered that the website had been reactivated. They sought an order for the committal of Mr Siemer on the ground that he was in contempt. In December 2005 a four day hearing took place before Potter J. Her reserved judgment issued on 16 March 2006 held that entries in the website www.stiassny.org breached the interim injunction granted by Ellen France J (and also the interim injunction granted by Winkelmann J). Potter J also found that there had been other breaches arising from the distribution of "stickers" and from other communications. Mr Siemer was found to be in contempt of Court and a fine of $15,000 was imposed. The fine was paid. [11] Mr Siemer appealed to the Court of Appeal against this decision (and also against a later decision of Potter J awarding the plaintiffs costs of approximately $183,000). Those appeals were dismissed. A later application to the Supreme Court for leave to appeal to that Court was also dismissed. The costs have not been paid. [12] Mr Siemer was unmoved. Another application for his committal for contempt was brought by Mr Stiassny and his firm in April 2007. A further hearingbefore Potter J followed and her Honour found on 9 July 2007 that further breaches of the interim injunction had occurred by virtue of entries on websites, www.stiassny.org and www.kiwisfirst.com. Potter J found that these entries constituted a further contempt. A writ of arrest was issued and when Mr Siemer came before the Court on 13 July 2007 Potter J committed him to prison for six weeks. He served that sentence. In her judgment of 9 July 2007 Potter J also debarred Mr Siemer from defending the substantive proceeding against him until outstanding costs were paid. [13] From late July 2007 staff at the Crown Law Office began monitoring websites www.stiassny.org, www.kiwisfirst.com and www.kiwisfirst.co.nz. Having concluded that material on those websites constituted further breaches of the interim injunction granted by Ellen France J, the Solicitor-General applied on 29 January 2008 for Mr Siemer to be held in contempt of Court, to be committed to prison, and to remain there until further order of this Court. Affidavits in support of the application were filed. [14] In response, Mr Siemer filed a notice of opposition which advanced the following grounds of defence."1) THAT the contempt application is a certain abuse of court process, in that, it has been demonstrably proven to both the New Zealand Court of Appeal and the applicant (who has a quasi-judicial duty) that the injunction upon which imprisonment is now sought is unlawful AND this was done well before the initiation of these proceedings. 2) THAT entrenched law further obligated the Court to revoke the injunction at the time it was evidentially proven in Court to have been obtained through an abuse of process (Reid v New Zealand Trotting Conference [1984] 1 NZLR 8). This occurred before the New Zealand Court of Appeal on 8 February 2007 in Wellington, and the incontrovertible support for this can be found on the Audio- tape record from that appeal hearing (CA55/06 Siemer v Stiassny). 3) THAT there is no provision in law, or in a just society, for the respondent to abide by an invasive injunction which is itself an exemption from the law. PARTICULARLY WHERE AND AFTER another judge simply refused their legal obligation to revoke it once it had been proven to be incorrect in fact and in law. 4) THAT Res Judicata prevents further prosecution when Judy Potter J conclusively dealt with the matter by order of this Court on 13 July 2007 (CIV 2005-404-1808). 5) THAT the current attempt to re-litigate the matter is a thinly veiled attempt by a judicial official – with an overriding obligation to safeguard the law of the land – tocontravene essential Bill of Rights protections on freedom of expression, ignore certain evidence of fraud AND unduly silence a citizen in order protect an errant judge from accountability for an unlawful decision. 6) THAT the imprisonment sought relies on judicial orders which have reasonably been exposed as a means to silence a legitimate critic of certain judges (who have acted inappropriately and in breach of their judicial oaths) AND that these orders have relied extensively upon judicial discretion rather than fundamental laws to defeat the course of justice. 7) THAT through an extended court process orchestrated by a few parochial judges who have demonstrated they will not be restrained by laws, the respondent has been systematically denied his inalienable right to face prison only by law of the land or by ruling of his peers. 8) THAT the current action perpetrates the Court's denial to the respondent of his right to natural and transparent justice.9) THAT it has never been unlawful to tell the truth and it would be an egregious miscarriage of justice and travesty of judicial function for the Court to imprison the respondent for merely doing so (notwithstanding the judicial order which unlawfully prevents the respondent from speaking truthfully).Mr Siemer filed affidavits in support of his notice of opposition.The hearing[15] We begin with a summary of some preliminary matters that were considered at the beginning of the hearing. Although these matters have already been dealt with, for completeness we are repeating those matters here. Then we will summarise evidence adduced by Mr Siemer from the Solicitor-General. This section of the judgment will then conclude by summarising the evidence adduced in support of the application and in opposition to it.Preliminary matters[16] First, there was an application by the Solicitor-General to set aside a witness summons that Mr Siemer had issued against him. When we authorised the issue of the witness summons we indicated that any application for it to be set aside would be heard at the commencement of the hearing: see our Minute of 29 May 2008. After hearing argument at the commencement of the hearing we declined to set the witness summons aside, but directed that Mr Siemer could only question the Solicitor-General about the motivation behind the application and the penalties sought: see Ruling (No.1) of 16 June 2008. As his witness, Mr Siemer was not permitted to cross-examine the Solicitor-General. [17] Secondly, we heard argument from Mr Siemer that he was entitled to have the matter heard by a Judge and jury. He said that his entitlement arose from s 24(e) of the New Zealand Bill of Rights Act 1990. That section provides that where the penalty for an offence includes imprisonment for more than three months, everyone is entitled to the benefit of trial by jury. This issue was dealt with in our Minutes of 29 May and 11 June 2008. After hearing further argument, we confirmed those earlier rulings on the basis that the Court of Appeal had confirmed in Siemer v Stiassny & Anor at [9] that the contempt proceedings are civil in nature. This meant that s 24(e) was not engaged: see Ruling (No.2) of 16 June 2008. [18] Thirdly, Mr Siemer sought to have a witness summons issued to William Young P. Again, this issue had arisen before the hearing. The Registrar brought to our attention that Mr Siemer wished to have witness summons issued to both William Young P and Ellen France J. We directed that these witness summonses were not to issue because the Judges were not compellable by virtue of s 74 of the Evidence Act 2006: see our Minute of 10 June 2008. After hearing further submissions we confirmed that ruling: see Ruling (No.3) of 16 June 2008.Solicitor-General's evidence[19] We now outline the Solicitor-General's evidence which was given immediately after the preliminary matters had been resolved. [20] The Solicitor-General's recollection was that he first became familiar with the issue about mid-way through July 2007. Prior to taking action his office obtained details of the orders of Ellen France J, the judgments of Potter J and the Court of Appeal decisions. When the matter was investigated the decision of Ellen France J was taken at face value.[21] In response to questions about his motivation in bringing this proceeding the Solicitor-General said:"My motivation was due entirely to my concern Mr Siemer that you were persistently disobeying orders of this Court and I was particularly concerned that notwithstanding the fact that on two previous occasions the Courts had found you in contempt of Court and had initially imposed a fine and then a short finite period of imprisonment. I understood you continued to breach the original Court order by publishing on your website materials which this Court had banned you from publishing. You've reached the point Mr Siemer where I became extremely concerned that you appeared to be deciding what laws of this country you would obey and what laws you would not and in a civilised society all members of our community are required to obey lawful orders of these Courts and because of your failure to do so I have taken, what I instantly acknowledge, there's a very rare step of intervening to try and uphold the orders of this Court."The Solicitor-General acknowledged that he had never asked for indefinite imprisonment before, but believed that there were three reasons for doing so now. First, Mr Siemer's repeated failure to adhere to Court orders for more than three years. Second, his failure to take any notice after he had been found to be in contempt on two previous occasions. Third, if the application succeeded and a sentence of imprisonment was imposed, then Mr Siemer's destiny would be very much in his own hands. [22] When questioned about lawful orders of the Court, the Solicitor-General said that he had not in his professional career seen an unlawful order of this Court, but he accepted that such could exist where Courts had acted without authority – that is without any jurisdiction. He said that when the application was filed he was aware of the provisions of s 26 of The Bill of Rights Act (retroactive penalties and double jeopardy) and that it had been factored into the decision making process. [23] The Solicitor-General said the decision to bring the application had not been made lightly, but whether or not the plaintiffs were pursuing their defamation case against Mr Siemer was not relevant to his decision. He was aware that some of the websites had been "parked", and proceedings had not "yet" been taken against other website hosts. Although his office had had discussions with the Domain Names Commissioner, he had no ultimate control over that person or over websites outside New Zealand.Applicant's evidence[24] In her first affidavit sworn on 28 January 2008 Esther Watt, an assistant Crown counsel, deposed that staff at Crown Law had viewed the websites www.stiassny.org, www.kiwisfirst.com and www.kiwisfirst.co.nz two or three times a week since 7 August 2007 and by that process had confirmed that information breaching the injunction granted by Ellen France J had been continuously published on those websites since at least that date. Printouts of the www.stiassny.org site on 1 August 2007 and on various dates thereafter are exhibited to her affidavit. [25] Ms Watt deposed that the content and public accessibility of the two "kiwisfirst" websites (www.kiwisfirst.co.nz and www.kiwisfirst.com) had been varied since 19 July 2007. To explain those changes, Ms Watt exhibited a selection of correspondence and documents from the Crown Law Office's file, including printouts from those two websites on various dates. [26] A second affidavit of Ms Watt dated 11 June 2008 indicated that since her first affidavit she had viewed the three websites from time to time and that the information that breached the injunction had been continuously published on those websites up to the date of her latest affidavit. Printouts of the www.stiassny.org and www.kiwisfirst.co.nz sites as at 11 June 2008 were exhibited. [27] When cross-examined by Mr Siemer, Ms Watt said that she became involved in the matter towards the end of July, and her involvement was limited to monitoring the websites, printing them off, and producing them under cover of an affidavit. [28] In response to Mr Siemer's question whether she could identify the aspects which, on the Solicitor-General's case, constituted breaches of the injunction, Ms Watt referred to particular parts of the www.stiassny.org website. She acknowledged that all she was able to say was that these websites disclosed certain information on a particular day, but she could not say how much earlier the material had been placed on the website, or anything about the accuracy of the Internet reports. She said (correctly) that she was probably not the best person to say what constituted a breach of the injunction, it being a matter for legal submission. MsWatt also referred to parts of the www.kiwisfirst.com and www.kiwisfirst.co.nz websites which she considered breached the injunction. [29] Mr Siemer questioned Ms Watt about whether there had been any new breaches after she started monitoring the websites. She said she believed there had been alterations to the websites, but she could not comment on the intention behind the alterations. While she acknowledged that there had been deletions, she asserted that there had been additions to various articles in the websites along the way. [30] It was said by Mr Siemer that Ms Watt had only browsed or skimmed over the injunction and could not therefore say that the injunction had been breached. She responded that the terms of the injunction were relatively clear and that there were several aspects that she thought breached the injunction. Ms Watt considered that all of the examples she referred to had been continuously published since she began monitoring. She acknowledged that she was not familiar with cachet versions of websites, but explained the process she went through to obtain the printouts, including the fact that websites had been accessed from different computers. She said the website had been checked that morning from a computer at the Court. [31] Affidavit evidence as to the service of the order of Ellen France J on Mr Siemer and service of the Solicitor-General's application for contempt was also before the Court. There was no application to cross-examine those deponents.Respondent's evidence[32] Three affidavits were sworn by Mr Siemer. He was not cross-examined. [33] In his affidavit sworn on 19 February 2008 Mr Siemer said he is a victim of the Solicitor-General's claim to have him imprisoned. He recorded that this Court had ordered him to provide the affidavit (Winkelmann J had ordered him to do so). With reference to availability for a hearing he expressed concern that Winkelmann J had wrongly challenged his honesty notwithstanding that he had never broken any New Zealand or international laws (other than minor traffic matters). Those historical procedural issues are irrelevant to what the Court must now decide.[34] Mr Siemer alleged that the Solicitor-General's application:"(6) seeks to enforce an unlawful gag injunction in order to protect the unfettered reputation of a single person in an unproven civil defamation claim that has been on foot for almost three years. 7) This Solicitor-General's application has nothing to do with upholding the laws or even lawful court judgments. Before the Court of Appeal on 8 February 2007 I proved beyond a shadow of a doubt that the gag injunction was obtained on the basis of a single false declaration to the High Court on 8 April 2008 (by way of an affidavit from Michael Peter Stiassny). The incontrovertible proof of this can be found on the official Court of Appeal audio-recording of the hearing on 8 February 2007. Moreover, I couriered extensive detail of this evidence to the Office of the Solicitor-General on 24 August 2007. Based upon this, I have little doubt that Mr Collins' action in this current application is vexatious."[35] According to Mr Siemer, he had proved the injunction was an abuse of process and this Court is compelled by law to revoke what was certainly a violation of his rights guaranteed by the New Zealand Bill of Rights Act. He said there was no provision in law for Judges to simply ignore essential laws in order to "unduly assist a mate AND there is no longer a responsibility for citizens to conform to it". [36] Mr Siemer complained that Mr Stiassny had employed New Zealand Judges (before their judicial appointments) and that many of the warnings he had issued about Mr Stiassny have proved to be true. He said that it was patently unjust for the public of New Zealand, as well as himself, to be "viciously targeted by Stiassny's mates in the Courts for merely telling the truth about the man". Mr Siemer indicated that his biggest problem was the absence of judicial accountability and that he is now being persecuted by the New Zealand judiciary, and by the Solicitor- General who holds a quasi-judicial office. [37] Concerns about any further involvement of Winkelmann J were expressed by Mr Siemer. He also alleged that the affidavit of the process server, Aaron Sewell, was materially and demonstrably false in many respects. He said he has established residency in the United States as a sole reflection of "the utter corruption I have experienced with the New Zealand Courts in this case". Mr Siemer elaborated that he loved this country too much to remain silent at the rampant Court corruption that is "slowly and stealthily killing it".[38] In a second affidavit sworn on 10 March 2008 Mr Siemer deposed that he had proved on 8 February 2007 (before the Court of Appeal) that the interim injunction:"a. [Was] based upon a materially false sworn declaration by Michael Stiassny. b. Was obtained by way of an abuse of process. c. Was untenable in fact or law."He deposed that in response to irrefutable proof of the above, the Court of Appeal"simply refused my repeated applications on the day to revoke the injunction on the spot as the law required them to do" without offering any legal reason other than judicial discretion. [39] Mr Siemer alleged that an audio recording he had taken at the Court of Appeal hearing (a transcript of which is attached to his third affidavit) provides"incontrovertible proof" that all three Judges understood clearly that the gag injunction was incorrect in law and in fact. Despite this unlawful abuse of process he had been imprisoned for six weeks, and the Solicitor-General is now seeking to relitigate the matter. Mr Siemer said that this is barred by res judicata and the Solicitor-General is now persecuting him and "acting vexatiously against me in a deliberate attempt to obscure and protect the unlawful conduct of certain Judges".[40] The third affidavit was sworn by Mr Siemer on 9 June 2008. To a large extent it refers to the issue of witness summonses (against the Solicitor-General and the two Judges), why it was imperative for the hearing in this Court to be digitally recorded (as it was), and his right to have a jury. Mr Siemer said that all he has ever wanted is justice, particularly a Court free of secretly held, unrecorded trials. He states that for once he would like to attend a Court hearing where Judges do not tell him "the facts do not matter" and do not claim that exceptions need to be made to some of the most essential laws of the land.Issues[41] It is necessary for the Court to focus on the issues it is properly required to decide. It cannot be led into irrelevant topics. [42] Although, as we have already mentioned, the application before the Court is of a civil nature, the onus rests on the Solicitor-General to prove the alleged contempt beyond reasonable doubt: Siemer v Stiassny & Anor at [11]. Before a contempt could be established in this case each of the following will have to be proved: (a) An injunction, unambiguous in its terms, binding on Mr Siemer. (b) Mr Siemer had knowledge of the terms of the injunction. (c) The injunction was breached by Mr Siemer by virtue of publication of material on the websites. (d) Any breach/s were intended, or calculated, by Mr Siemer to impede, obstruct or prejudice the administration of the justice, that is, the integrity of Court orders. If those requirements are proved beyond reasonable doubt, then a contempt will have been established. [43] Thereafter, it would be necessary to consider what action the Court should take to compel compliance with its orders. Obviously, compliance with Court orders and preventing future breaches should be the primary aim of the Court. However, the Court can only punish for past breaches and those that are continuing at the time the punishment is imposed. While that may act as a deterrence against future offending, the Court cannot punish breaches that have not occurred, and might not occur. [44] Before we address the four issues set out in [42], we record:a) What this application is not about; and b) The status of the Solicitor-General in these proceedings, he not being a party to the civil action out of which the injunction arose.What this case is not about[45] The contempt application is concerned solely with the issue of Mr Siemer's obedience, or not, of the terms of the injunction issued by Ellen France J, as upheld by the Court of Appeal. We are not concerned with any other material contained on the websites. [46] Nor is the case about the rights of the plaintiffs (Ferrier Hodgson and Mr Stiassny) in the civil proceeding against Mr Siemer. The various decisions since the injunction was granted by Ellen France J have merely sought to enforce compliance with the injunction. While those decisions and this proceeding by the Solicitor- General (if successful) might indirectly have the allied effect of enforcing the plaintiff's rights under the injunction, the primary purpose of the Solicitor-General's application (and any order that we might make) is to punish Mr Siemer for wilful defiance of the law, through breach of the injunction.Position of Solicitor-General[47] The Solicitor-General is not acting on behalf of the plaintiff in the civil proceeding. Nor is he acting on behalf of the Government. He is acting in the performance of his duty to safeguard the administration of justice. He does so because of his belief, and submission to us, that there has been a serious and continuing contempt of the Court by Mr Siemer. That does not mean to say that the Solicitor-General is necessarily right. As we have said, the contempt must be proved by the Solicitor-General beyond reasonable doubt.[48] Sir John Donaldson M R in Attorney-General v Newspaper Publishing Plc[1988] 1 Ch. 333 (CA) at 362 said, when describing principles underlying the law of contempt:"Despite its protean nature, contempt has been classified under two heads, namely, 'civil contempt' and 'criminal contempt'. Whatever the value of this classification in earlier times, I venture to think that it now tends to mislead rather than assist, because the standard of proof is the same, namely, the criminal standard, and there are now common rights of appeal. Of greater assistance is the reclassification as (a) conduct which involves a breach, or assisting in the breach, of a court order, and (b) any other conduct which involves an interference with the due administration of justice, either in a particular case or, more generally, as a continuing process, the first category being a special form of the latter, such interference being a characteristic common to all contempts: per Lord Diplock inAttorney-General v Leveller Magazine Ltd [1979] AC 440, 449. What distinguishes the two categories is that, in general, conduct which involves a breach, or assisting in the breach, of a court order, is treated as a matter for the parties to raise by complaint to the court, whereas other forms of contempt are generally considered to be a matter for the Attorney-General to raise. In doing so, he acts not as government minister or legal advisor, but as the guardian of the public interest in the proper administration of justice."Thus in the case of a failure to comply with some Court orders (for example, those relating to procedural timetables) the appropriate reaction of the Court is not usually punishment in the form of committal, attachment or a fine. Rather it is by way of an order striking out all or part of the claim, or refusing to entertain the whole or part of a defence. On the other hand, where there is conduct striking at the heart of the administration of justice it may become necessary for the Solicitor-General to step in as guardian of the public interest. [49] On two earlier occasions the plaintiffs, as parties to the civil action, have brought contempt proceedings to compel compliance with the order of Ellen France J. On the first occasion Mr Siemer was fined and on the second occasion he was imprisoned. [50] This proceeding is different. It is not brought by a party in the civil proceeding, but by the Solicitor-General, as guardian of the public interest for the proper administration of justice. He acts, and appears, as amicus. [51] Now we return to the four matters referred to in [42] that must be proved by the Solicitor-General before his allegation of contempt can be made out.Is there an injunction, unambiguous in its terms, binding upon Mr Siemer?[52] Under this heading we will address two issues: first, whether the injunction granted by Ellen France J is unambiguous in its terms; second, whether, as asserted by Mr Siemer, it is unlawful, this being relevant to whether it is binding on Mr Siemer.Whether the injunction is unambiguous in its terms[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 section 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.Whether the injunction is unlawful[55] As a primary contention, Mr Siemer claimed that the order made by Ellen France J was unlawful (and not binding on him) because it constituted an abuse of the Court's process to the extent that it was based on false evidence from Mr Stiassny. On this basis Mr Siemer claimed that the interim injunction should not have been granted and that this was proved by him in the Court of Appeal during his cross-examination of Mr Garrett in that Court on 8 February 2007. Under those circumstances, he argued, that Court was obliged to revoke the interim injunction on the spot. And this Court, he says, also has a duty to take that step. [56] An oral application for judicial review by this Court of the decision of Ellen France J, as confirmed by the Court of Appeal, was made by Mr Siemer. However, it is elementary that judicial review does not confer jurisdiction for this Court tochallenge decisions of superior Courts. In response to Mr Siemer's challenge to the injunction, the Court of Appeal said:"[13] These challenges are irrelevant to this appeal. It is no answer to an allegation of contempt of court involving breach of an injunction to assert that the injunction was wrongly granted. Nor could Mr Siemer realistically have expected Potter J to have set aside (in enforcement proceedings) the injunction which had been granted by Ellen France J and upheld by this Court. Similar considerations apply to Mr Siemer's complaints based on freedom of expression ".Given that the challenge to the lawfulness of the order made by Ellen France J was specifically raised before, and rejected by, the Court of Appeal, the judicial review remedy sought by Mr Siemer clearly requires this Court to challenge the authority of the Court of Appeal. We are not able or prepared to do so. It makes no difference that the order was an interim order and not a final order. [57] Mr Siemer referred to, and relied on, Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 (CA) and Hunter v Chief Constable of West Midlands Police [1982] AC 529; [1981] 3 All ER 727 (HL). Those cases were relied on by Mr Siemer to support his proposition that this Court must use its inherent jurisdiction to prevent an abuse of process where an order, such as the injunction of Ellen France J, has been improperly or unlawfully obtained. But both those authorities relate to the Court's inherent power to strike out a plaintiff's proceeding or causes of action upon application by a defendant. They do not support the much wider proposition that Mr Siemer seeks to draw from them. In our view neither case is relevant to the matters that we are required to decide. [58] Cases where defendants have succeeded in having a plaintiff's proceedings struck out on the grounds that there has been an abuse of the Court's process are not unknown, and the authorities referred to by Mr Siemer reflect that. However, this is not an application, formal or otherwise, to strike out the proceeding of a party (who, in any event, is not a party to the proceeding now before the Court). The application to rescind the ex parte injunction of Winkelmann J was, in fact, argued on the basis that it should not have been granted, and the decision of Ellen France J, confirmed by the Court of Appeal, is not impeachable in this proceeding. There is no possible foundation in law for this Court to act "inherently" and thereby declare that theorders made by Ellen France J, which have been confirmed by the Court of Appeal, are unlawful.Conclusion[59] The interim injunction granted by Ellen France J was clear and unambiguous. There is no merit in Mr Siemer's argument that it is unlawful. The interim injunction is binding on him.Did Mr Siemer have knowledge of the terms of the injunction?[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.Has there been a breach of the injunction by virtue of the publication of material on the websites?[61] We will start this part of the judgment by examining whether there has been any publication in contravention of the order. Then we will consider the issues of double jeopardy and res judicata which have been raised by Mr Siemer. Finally, we will consider whether there is any merit in Mr Siemer's argument that it is futile to pursue the matter now because the offending material has been in the public domain since before Potter J found Mr Siemer to be in contempt.Whether there has been publication in contravention of the order[62] The terms of the order made by Ellen France J, whilst not mandatory in the sense of requiring removal of material from the website, are nevertheless prohibitory. In other words the order prevents continuing or repeated publication of the material on the websites provided, of course, Mr Siemer had control over such publication/s. Plainly the underlying objective of the order is to prohibit publication of the designated material.[63] It is alleged by the Solicitor-General that material on three websites breached the injunction. A printout of the www.stiassny.org website on 1 August 2007 includes an article dated 14 April 2007 which states that Mr Stiassny:" was about to be publicly exposed for falsely labelling a company insolvent in order to personally steal its technology and walk away with its substantial cash accounts. Moreover, this single case would expose the systematic and insidious way he had been able to achieve such a staggering personal income. Mr Stiassny's ignominious conduct in the debacle he created with Paragon Oil Systems Limited – which in turn provided a blueprint of how he was able to financially bilk other companies – was coming back to haunt the once venerated insolvency practitioner due to two billboards being put up in Auckland and a website being launched that both detailed and proved his malfeasance."With reference to the injunction granted by Ellen France J the article describes the Judge as rationalising that:" Mr Stiassny's seemingly criminal malfeasance did not extend to public utility Vector Limited, the monopoly electric utility of which Stiassny was chairman and which also was at the time deeply involved in a complex and expensive acquisition and public share float. Better, she thought, that a private word be taken up with Stiassny to ensure this was not the case. Hence, Stiassny had to lie again ."And with reference to the Court of Appeal hearing on 8 February 2007 the article states that the challenge during that hearing:" revealed incontrovertible evidence that Mr Stiassny lied under oath when he swore an affidavit that, amongst other things, said he had never labelled Paragon insolvent and had inadvertently invoiced Paragon some $11,000 in fees that should have been charged to "Paramount" another lie .".Further printouts on 26 October 2007, 25 January 2008 and 11 June 2008 contain the same material. And Ms Watt said that the material was still on the website on the morning that the hearing before us began. [64] The other two websites alleged to contain material in breach of the injunction are www.kiwisfirst.com and www.kiwisfirst.co.nz. These are linked sites which means that the material on the two sites is effectively identical. A printout on 13 August 2007 of www.kiwisfirst.com includes an article dated 9 August 2007 containing the following:"On 2 August 2007, a further letter was sent by the Solicitor General, this time alleging the website breached an 'interim' injunction that has been in place for more than two years – an injunction that prevents evidence of likely criminal deceit by Vector Energy Chair Michael Stiassny being made public Recently, the Court of Appeal ignored evidence – evidence furthermore caught on tape – that showed Mr Stiassny had perjured himself when filing the affidavit required to obtain the injunction In 2005, Mr. Siemer estimated Mr. Stiassny, mainly through his company Ferrier Hodgson, had siphoned off as much as $7 million from his public positions and stewardship of imperilled New Zealand businesses. Moreover, Siemer uncovered evidence that formal complaints of gross financial misconduct against Stiassny by some of New Zealand's most talented investors and business people dating back 15 years were regularly buried in complaint committees ".Subsequently a printout of the site on 22 August 2007 showed that it was blank. However, by 27 August 2007 the site was again accessible and, while some of the offending material had been deleted, it still contained an allegation that Mr Stiassny had perjured himself. A printout on 11 June 2008 mentions Mr Stiassny's "mis- management and furtive accounting methods". Ms Watt confirmed that this material was still there when this hearing started. [65] Two things emerge from these websites. First, assuming for the moment that there has been publication, parts of the material remaining on the websites after Mr Siemer had been sentenced to imprisonment patently contravene the interim injunction granted by Ellen France J. Second, the sites were active in the sense of being positively updated after the sentence of imprisonment was imposed. In other words, this was not a situation where the site was created before the prison sentence was imposed and then simply left in an archived or dormant state on the site (although, having regard to the cases we will discuss shortly, the outcome of this proceeding might not have been any different if that had been the case). [66] The second point (that the sites were active after Mr Siemer was sent to prison) can be illustrated by the following. The stiassny.org website printout of 25 January 2008 contains articles dated 20 October 2007 and 10 January 2008 and refers to events that occurred after Mr Siemer was sentenced to imprisonment. Similarly the printout of 11 June 2008 includes articles dated 10 January 2008 and 25 March 2008 and also refers to events that took place after the prison sentence wasimposed. The same applies to the kiwisfirst.com site which includes articles carrying various dates in 2008 and references to contemporaneous events. So the sites were obviously updated after the prison sentence was imposed. Added to those matters is the fact that the kiwisfirst.com site was deleted and then reinstated after the prison sentence was imposed. [67] Now we consider whether the offending material on those websites was published in terms of the interim injunction after Mr Siemer was sentenced to imprisonment on 13 July 2007. In Pullman v Hill & Co (1891) 1 QB 524, 527 it was said that "publication" means:"The making known the defamatory matter after it has been written to some person other than the person with whom it is written . if he wishes not to publish it, he must, so far as he possibly can, keep it to himself, or he must send it himself straight to the person to whom it is written."It has long been accepted that repetition of a defamatory statement is a fresh publication, creating a fresh cause of action. Furthermore, a person who originates a defamatory statement is liable for its repetition by others if that repetition was foreseen as a natural and probable consequences of the original publication. [68] An example of a "continuing publication" can be seen in Byrne v Deane[1937] 1 KB 818 (a case concerning the affixing of a defamatory statement to a golf club noticeboard). In that case Greene LJ said (at 837):" publication, of course is a question of fact, and it must depend on the circumstances in each case whether or not publication has taken place. It is said that as a general proposition where the act of a person alleged to have published a libel has not been any positive act, but has been merely the refraining from doing some act, he cannot be guilty of publication. I am quite unable to accept any such general proposition. It may very well be that in some circumstances, a person, by refraining from removing or obliterating the defamatory matter, is not committing any publication at all. In other circumstances he may be doing so. The test it appears to me is this: having regard to all the facts of the case is the proper inference that by not removing the defamatory matter the defendant really made himself responsible for its continued presence in the place where it had been put?"For reasons that will be given shortly, we believe that Mr Siemer made himself responsible for the continued presence of the offending material on the websites after he was imprisoned by Potter J.[69] When discussing contrasting factual situations regarding ease of removal of defamatory material his Lordship said (p 838):"On the other hand you have a case such as the present where the removal of this particular notice was a perfectly simple and easy thing to do, involving no trouble whatsoever. The defendants, having the power of removing it, and the right to remove it, and being able to do so without any difficulty at all, and knowing that members of the club, when they came into the room, would see it, I think must be taken to have elected deliberately to leave it there. The proper inference, therefore, in those circumstances is that they were consenting parties to its continued presence on the spot where it had been put up. That being so, it seems to me that they must be taken to have been parties to the publication to each member who saw it."Again, for reasons that will follow, we have no doubt that it can be safely inferred that at the very least Mr Siemer was a consenting party to the continued presence of the material on the websites. [70] With the arrival of the internet, Courts have been alive to the scope for continuing, and continuous, publication of material on the electronic facility. Some cases have dealt with when and where publication via the internet takes place, and they all point in the same direction – publication occurs where, and when, the offending statement is downloaded and read. While that is not the law in many States of the USA where the "one publication" principle applies, it is the law in England, Australia, and, we hold, New Zealand. [71] In Godfrey v Demon Internet Ltd [2001] QB 201, Morland J held that the transmission of a defamatory posting from the storage of a news server constituted a publication of that posting to any subscriber who accessed the newsgroup containing that posting. The Judge considered that the situation was analogous to that of a bookseller who sold a book, defamatory of a plaintiff, to a circulating library which provides books to subscribers and distributors. Thus, rather than being merely the owner of an electronic device through which postings had been transmitted, the defendant had published the posting whenever one its subscribers accessed the news group and saw that posting. [72] Morland J said (at 208-209):"the defendant, whenever it transmits and whenever there is transmitted from the storage of its news server a defamatory posting, publish that posting to any subscriber to its ISP who accesses the newsgroup containing that posting. Thus, every time one of the defendant's customers accesses [the site] and sees that posting defamatory of the plaintiff, there is a publication to that customer."These comments are particularly relevant to Mr Siemer's argument that publication had not been proved because Ms Watt might have only accessed archived versions of the websites (see [77]). [73] Likewise in Loutchansky v Times Newspapers Ltd (No. 2) [2002] 1 All ER 652 the Court of Appeal rejected the argument that publication of a newspaper on a website took place once and for all when it was first placed there. The Court held that each individual publication was a libel which gave rise to a separate cause of action. [74] The decision of the High Court of Australia in Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 confirmed that a Victorian citizen could sue in the Courts of that State for a defamatory statement contained on a website of an American newspaper. The basis of the decision was that the defamatory matter was published in Australia when it was downloaded and read there. That case confirms that internet publications are no different from other sorts of universal publications and it reinforces the long-standing principle applied in Loutchansky that each individual publication of a libel gives rise to a separate cause of action. [75] In Dow Jones v Gutnick, Gleeson CJ, McHugh, Gummow and Hayne JJ observed that although many States in the United States have adopted the "single publication rule" so that a plaintiff could bring only one action against a defendant to recover damages for all publications, that was not the law in England or Australia. At page 605, their Honours said:"[38] In the course of argument much emphasis was given to the fact that the advent of the World Wide Web is a considerable technological advance. So it is. But the problem of widely disseminated communications is much older than the Internet and the World Wide Web. The law has had to grapple with such cases ever since newspapers and magazines came to be distributed to large numbers of people over wide geographic areas. Radio and television presented the same kind of problem as was presented by widespread dissemination of printed material, although internationaltransmission of material was made easier by the advent of electronic means of communication. [39] In the end, pointing to the breadth or depth of reach of particular forms of communication may tend to obscure one basic fact. However broad may be the reach of any particular means of communication, those who make information accessible by a particular method do so knowing of the reach that their information may have. In particular, those who post information on the World Wide Web do so knowing that the information they make available is available to all and sundry without any geographic restriction. [40] Because publication is an act or event to which there are at least two parties, the publisher and a person to whom material is published, publication to numerous persons may have as many territorial connections as there are those to whom particular words are published. It is only if one starts from a premise that the publication of particular words is necessarily a singular event which is to be located by reference only to the conduct of the publisher that it would be right to attach no significance to the territorial connections provided by the several places in which the publication is available for comprehension. . [44] In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on to the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done. Ordinarily then, that will be the place where the tort of defamation is committed."In our view those observations are equally applicable to the New Zealand situation. [76] These authorities highlight that in an internet context it is the accessing of the material that completes the publication, such publication having been facilitated by the creator of the material placing it on the internet. Applying those principles to the evidence, we have no difficulty in concluding that there has been publication (or republication) of material on the websites since Potter J sent Mr Siemer to prison. Since that time there has been a positive updating of the websites which is not only relevant to the issue of publication, but also indicates that these were deliberate actions by those involved in the publications. Publication was completed when Ms Watt and others at the Crown Law Office downloaded the material on to their computers and read it. We also note that Mr Siemer acknowledged when presenting his submissions that the websites had received up to 100 "hits" a day. It matters not that the hosts of www.stiassny.com and www.kiwisfirst.com are based offshore.The offending material was published in New Zealand when it was downloaded and read in this country. [77] We reject Mr Siemer's argument that there has been no publication because Ms Watt was unable to say whether the websites were cachet versions (as we understand Mr Siemer's proposition, he was saying that they could have been archived versions). Mr Siemer's argument is destroyed by the fact that Ms Watt and others were able to access and download material from the websites on numerous occasions and from different computers. Moreover, as already mentioned, Godfrey v Demon Internet Limited illustrates that even if material is being stored, publication will occur if the material can be accessed and viewed by other people. [78] Finally, we are satisfied that the Solicitor-General has proved that Mr Siemer was a party to the publications occurring after the prison sentence was imposed. He has not denied involvement and his letter of 24 August 2007 in response to the request from the Crown Law Office for the offending material to be removed is only explicable on the basis that he has control over the websites. Indeed, the inference that Mr Siemer is actively involved in the authorship of the publications is overwhelming. A similar conclusion was reached by Potter J. At the very least he was a consenting party to the publication of the offending material on the websites after the prison sentence had been imposed. He had the power to have the offending material removed and chose not to exercise that power.The double jeopardy/res judicata argument[79] To a large extent Mr Siemer based his double jeopardy argument around s26 of the Bill of Rights Act 1990 which provides:"Retroactive penalties and double jeopardy(1) No one shall be liable to conviction of any offence on account of any act or omission which did not constitute an offence by such person under the law of New Zealand at the time it occurred. (2) No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again."His argument, as we understand it, is that any offending material was placed on the sites before he was punished on the second occasion for contempt. Under those circumstances he believes he cannot be punished again because he is protected by s26(2). [80] For reasons already given with reference to s24(e) (see [17]) we do not accept that s26(2) applies in this case. But that is not necessarily the end of the matter because the proposition that a person can only be punished once for the same offence is well ingrained in the common law: see Crepps v Durden (1777) 2 Cowper's Reports 640; Church's Trustee v Hibbard [1902] 2 Ch 784 and R v Justices of Portsmouth [1892] 1 QB 491. More recent examples in contempt proceedings areLamb v Lamb [1984] FLR 278, and B v B (contempt: committal) [1991] 2 FLR 588. [81] Those authorities cannot, however, avail Mr Siemer because there has been no double jeopardy in this case. As we have already observed, the injunction was framed by Ellen France J in a way that prohibited the continuing publication or republication of any offending material. Potter J penalised Mr Siemer for breaching the injunction up to the time that he was sentenced to imprisonment. She did not purport to impose a penalty for any breaches beyond that time, nor could she. On the other hand, we are concerned with breaches that have arisen after Potter J sent Mr Siemer to prison, an entirely different matter. There is no question of Mr Siemer being punished again for the same breaches. We are considering new breaches that were not before Potter J. [82] For similar reasons the res judicata argument cannot succeed. Potter J did not consider and adjudicate upon the breaches with which we are concerned. They had not occurred.The futility argument[83] Mr Siemer argued that it was futile to pursue the application when the offending material was already in the public domain (internet websites) and could not be retrieved. Under those circumstances, he submitted, no useful purpose wouldbe served by the enforcement and committal proceeding initiated by the Solicitor- General. [84] To support his argument Mr Siemer referred to the judgment of Wild J inBerryman v Solicitor-General [2005] 3 NZLR 121, where His Honour observed:"[38] First, there is the futility – the pointlessness – of restraining TVNZ from using the bridge report when it is already in the public domain. The legal basis on which the Courts have refused to restrain further publication in such a situation is that the document has already been published to such an extent as to destroy its confidentiality .".That case is far removed from the present. It involved an application by the Solicitor-General for an injunction restraining TVNZ (a third party) from publishing documents handed to it by a solicitor in breach of his undertaking to the Court. TVNZ was a "third party" in the sense that it was not directly involved in the substantive proceeding or in the earlier release of the information on to the internet. [85] Significantly Wild J referred to the judgment of Lord Nichols of Birkenhead in Attorney-General v Punch Ltd [2003] 1 AC 1046 where it was said that the disclosure of information already fully in the public domain as the result of the actions of a third party would not normally constitute a contempt. Lord Nichols of Birkenhead said:"[55] Contempt lies in knowingly subverting the Court's purpose in making its interlocutory order by doing acts having some significant and adverse effect on the administration of justice in the action in which the order is made. If the third party publishes information which is already fully and clearly in the public domain by reason of the acts of others, then the third party's act of publication does not have this effect." (Our underlining).Mr Siemer's situation is quite different. The material is already on the internet by virtue of his actions. He cannot rely upon his own earlier publication in breach of the Court order to justify an argument that the offending material is already in the public domain and no useful purpose would be served by pursuing the matter any further.Conclusion[86] The Crown has proved beyond reasonable doubt that material remaining on the websites after Mr Siemer was sent to prison by Potter J contravenes the injunction granted by Ellen France J. These were new publications (or republications) of the offending material. Mr Siemer's arguments based on double jeopardy, res judicata and futility are unsustainable. The Solicitor-General has proved the third requirement.Were the breaches calculated to impede, obstruct or prejudice the administration of justice?[87] As McLachlan J said in Canada (Human Rights Commission) v Taylor[1990] 75 DLR (4 th ) 577, 635:"If people are free to ignore Court Orders because they believe their foundation is unconstitutional, anarchy cannot be far behind. The citizen's safeguard is in seeking to have the legal orders set aside through the legal process, not disobeying it."Mr Siemer himself submitted in oral argument that he just wanted to be treated lawfully and that "if the law does not matter you have anarchy". He espoused the principle that in society there cannot be people who break the law (and submitted that he had not done so). [88] We find that Mr Siemer's continuing defiance of the injunction since he was sent to prison by Potter J constitutes a deliberate and serious attempt to thwart and impede the proper administration of justice in New Zealand. In an obdurate and misguided way he has chosen to take the law into his own hands and to act in defiance of the interim injunction. On the evidence before us there is no room at all for any defence based on good faith or mistake.Summary thus far[89] To summarise to this point:a) The terms of the injunction are clear and ambiguous, 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 taking 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 constitute a serious and deliberate attempt to thwart and impede the proper administration of justice. [90] We find it proved beyond reasonable doubt that Mr Siemer's contempts of Court have continued since he was sent to prison by Potter J on 13 July 2007.What sanction/penalty should be imposed for the contempt?[91] The Solicitor-General has sought imprisonment for an indefinite period. He says this is necessary to secure compliance by Mr Siemer with the Court order. As we have said, the purpose of these proceedings is twofold, namely, to impose a penalty or punishment upon Mr Siemer for his serious continuing defiance of the authority of the Court and the law and, secondly, as an adjunct to that, to secure compliance with the law so that Mr Siemer no longer infringes the injunction. [92] We accept that it is within the inherent jurisdiction of this Court to impose an indefinite period of imprisonment for contempt. But that is a very extreme step carrying numerous potential pitfalls. Amongst other things such a sentence can prove to be unjust when the length of the term of imprisonment extends to a point where it exceeds the gravity of the contempt. In Re Maria Annie Davies (1888) 21 QBD 236 illustrates the difficulties that can arise where a person refusing to obey a Court order is committed to an indefinite sentence of imprisonment. In that case MrsDavies was eventually released from prison. The only New Zealand case that we have been able to find where an open-ended sentence of imprisonment was imposed is Jones v Skelton (High Court, Hamilton Registry, CIV 2006-419-1489, 25 October 2006, Keane J) where Mrs Skelton was to be imprisoned until such time as she disclosed the location of her son. [93] In the United Kingdom the Contempt of Court Act 1981 caps the period of imprisonment at two years. There is no comparable legislation in New Zealand. Rule 609 of the High Court Rules empowers the Court to commit a person in contempt to prison for such term as to the Court appears necessary and as may be allowed by law unless the person sooner complies with the order. It is debatable, however, whether that Rule applies when the application has not been made by one of the parties to the substantive action. For that reason we rely on our inherent jurisdiction. [94] Naturally we are reluctant to commit Mr Siemer to prison. But his contumacious defiance of the interim injunction leaves us with no choice. [95] This is the third of a series of contempts by Mr Siemer. He has failed to respond to the previous sanctions imposed by the Court, the most recent being a six week sentence of imprisonment. While there has been some modification to the offending websites since that time, offending material still remains on the three websites. Despite our attempts during the hearing to persuade Mr Siemer that the best course for him was to remove the offending material, he remained steadfast. He seems to be unwilling to accept, or incapable of accepting, that he is obliged to obey the injunction regardless of what he thinks of it. [96] Under those circumstances we can see no alternative to the imposition of a lengthy, but finite, period of imprisonment. First, it will punish him for his breaches since he was sent to prison by Potter J, there having been two earlier breaches. Second, it should provide a powerful message to Mr Siemer that, like other citizens, he is obliged to obey Court orders. Third, we hope that it will persuade Mr Siemer that the offending material must be removed from the websites. Finally, a sentenceof imprisonment is necessary to provide general deterrence so that the community understands that those who defy Court orders will receive a stern response. [97] A writ of arrest to bring Mr Siemer before the High Court at Auckland at 10am on 1 August 2008 is to issue under the Court's inherent powers. At that time Mr Siemer will be committed to prison for a period of six months. However, execution of both the writ of arrest and the order committing Mr Siemer to prison will be suspended and will lie in Court pending further order of the Court on 1 August 2008. Suspension of the writ and warrant is to allow Mr Siemer a final opportunity to arrange for the removal of the offending material from the websites and to provide the Court with a suitable undertaking that it will not be placed back on any websites in contravention of the Court order. If Mr Siemer does not take advantage of this indulgence he will be committed to prison for six months. On the other hand, if the offending material is removed from the website before 1 August 2008 and a suitable undertaking is provided, we will hear further submissions from the Solicitor-General and Mr Siemer as to penalty. Either way it will be necessary for Mr Siemer to attend at 10am on 1 August 2008. [98] We are satisfied the Court's inherent powers at common law entitle it to suspend execution of the warrant to commit for a fixed period; see Lee v Walker[1985] QB 1191 (CA) and Morris v Crown Law Office [1970] 2 QB 114 and Dent v Dent & Hall [1962] P 187; [1962] 1 All ER 746 In Morris Lord Denning said (at page 125):"I hold, therefore, that a Judge of the High Court still has power at common law to commit instantly to prison for criminal contempt, and this power is not affected in the least by the provisions of [the Criminal Justice Act 1948]. The powers at common law remain intact. It is a power to fine or imprison, to give an immediate sentence or to postpone it, to commit to prison pending his consideration of the sentence, to bind over, to be of good behaviour and keep the peace, and bind over to come up for judgment if called upon. These powers enable the Judge to give what is, in effect, a suspended sentence."The same principles must apply in respect of a civil contempt arising from wilful disobedience of Court orders. [99] We hope that the merciful approach that we have taken will avoid us having to perform the unhappy task of sending Mr Siemer to prison for six months. But heneeds to understand that we will not hesitate to do so if his defiance of the injunction continues. Mr Siemer has a final chance to remove the offending material and satisfy us that it will not be reinstated. The outcome is in his hands.Outcome[100] There will be a writ of arrest and an order committing the Respondent to prison for a period of six months. [101] The writ and the order committing Mr Siemer to prison will, however, be suspended pending further order of the Court in terms of [97].Costs[102] Given that the Solicitor-General has sought costs on an indemnity basis, we will also consider that matter on 1 August 2008. The Solicitor-General is to file and serve particulars of the costs he seeks well before that hearing. At the hearing we will hear submissions from the Solicitor-General and Mr Siemer on the costs issue. If Mr Siemer intends to oppose any order for costs on the basis of impecuniosity he will need to file and serve appropriate details of his means, assets and liabilities so that that issue can be properly considered.Postscript[103] We are mindful that although the injunction is an interim order, it has now been in force for over three years. Although the matter is out of our hands, we hope that it will be possible for the substantive proceeding to be brought to a head one way or other so that the continuance or otherwise of the interim order can be determined.____________________________L H Chisholm J____________________________J W Gendall JSolicitors: Crown Law Office, Wellington Copy to: Mr Siemer