SIEMER V THE SOLICITOR-GENERAL FOR NEW ZEALAND CA CA126/2010

SIEMER V THE SOLICITOR-GENERAL FOR NEW ZEALAND CA CA126/2010 24 November 2010IN THE COURT OF APPEAL OF NEW ZEALAND CA126/2010 [2010] NZCA 549BETWEEN VINCENT ROSS SIEMER Appellant AND THE SOLICITOR-GENERAL FOR NEW ZEALAND Respondent Hearing: 15 November 2010 Court: Chambers, MacKenzie and Simon France JJ Counsel: Appellant in Person F Sinclair for Respondent Judgment: 24 November 2010 at 2.30 pmJUDGMENT OF THE COURT A The appeal is dismissed. B The appellant must pay the respondent costs for a standard appeal on a Band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Simon France J)Introduction[1] This is an appeal against an order by Lang J on 26 February 2010 that Mr Siemer pay indemnity costs in relation to discontinued contempt of court proceedings brought against him by the Solicitor-General.1Background[2] In apparent breach of suppression orders applying to a pre-trial ruling in a criminal matter, Mr Siemer published extracts of the ruling on two websites. Publication occurred on 17 September 2009. [3] The following day the Solicitor-General wrote to Mr Siemer requesting that he remove the article from the websites. The Solicitor-General indicated that he would consider issuing contempt proceedings if that did not happen. Mr Siemer replied five days later. His reply indicates that he was aware that he was in breach of the suppression orders, but considered those orders to be unlawful and contrary to s 14 of the New Zealand Bill of Rights Act 1990. [4] Having received this response, the Solicitor-General applied to the trial Judge in question, Winkelmann J, for an order directing Mr Siemer to remove the material from the site. This occurred in two stages. First, her Honour was asked to confirm that her suppression orders were in force and to confirm the effect of the orders. This was done on 7 October 2009. [5] Then on 9 October, Winkelmann J ruled on an application by the Solicitor- General for orders that Mr Siemer remove the offending articles. 2 Mr Siemer filed a notice of opposition which included the reasons why he considered he was not in breach. However, he did not attend this hearing but sought an adjournment on the basis that he would be overseas at the time. Winkelmann J declined the adjournment.31 Solicitor-General v Siemer HC Auckland CIV-2009-404-6747, 26 February 2010.2 Solicitor-General v Siemer HC Auckland CIV-2009-404-6243, 9 October 2009.3 At [16].[6] Her Honour was provided with printouts from the two websites operated by Mr Siemer. The judgment records Mr Siemer's arguments as to why there was no breach. These involved a challenge to the legality of the suppression orders. Winkelmann J confirmed her orders and ruled that the articles were in breach. Orders were made requiring Mr Siemer to remove all commentary on, and extracts from, the substantive rulings of Winkelmann J.4 There has been no appeal against this judgment. [7] Five days later, the material still being on the website, the Solicitor-General initiated the contempt of court proceedings that have led to this appeal. The application sought that Mr Siemer be held in contempt of court and be committed to prison for a period not exceeding three months. It also sought costs. [8] The sequence of events following the making of the application was: a) The matter was first called on 22 October before Courtney J. The Solicitor-General and Mr Siemer both attended. Mr Siemer sought preliminary orders for discovery, and also leave to file a counter-claim. These applications were opposed and were listed for hearing on 30 October. b) On 30 October, the Solicitor-General again appeared, but Mr Siemer did not. A minute of Venning J issued two days earlier indicates that Mr Siemer's absence had been foreshadowed. Accordingly in the minute, Venning J had made it clear that the 30 October matter would proceed whether Mr Siemer was there or not. c) Keane J presided over the 30 October hearing. It was again noted that Mr Siemer disputed the legality of the underlying suppression orders. As to the preliminary issues, Keane J declined to order a jury trial, declined Mr Siemer leave to file a counter-claim, and declined to4 At [17].appoint an amicus curiae. A fixture for the substantive application was confirmed for 10 November. 5d) In a subsequent ruling on the papers Keane J ruled on other matters that had not been dealt with on 30 October.6 His Honour declined to issue the witness summons that had been sought by Mr Siemer. Further, any publication of Keane J's two rulings was suppressed in order to prevent further breach of the underlying orders. e) On 10 November, the Solicitor-General was represented by Crown counsel. Again, Mr Siemer did not appear. He had earlier advised the Court that he had engaged counsel but that a legal aid application had not been determined. The counsel Mr Siemer said had been instructed did not appear either. Venning J, who was presiding, issued an arrest warrant for Mr Siemer. This was executed and he was brought to Court later that day. On this occasion Mr Siemer had junior counsel who advised the Court that Mr Siemer's preferred counsel had now indicated he would accept instructions. An adjournment until 16 November 2009 was requested. This was acceded to. Mr Siemer was released on bail with no conditions. f) The only formal record of what occurred between 10 November and 16 November comes from Lang J's minute of 16 November. His Honour records that "[o]ver the last few days Mr Siemer has excised several passages". As a consequence, as at 16 November, the Solicitor- General considered there was no longer any current breach. Further, Mr Siemer had signed an undertaking not to breach the suppression order in the future. In these circumstances, the Solicitor-General obtained leave to discontinue. Both parties indicated they wished to apply for costs and a timetable for submissions was set.5 Solicitor-General v Siemer HC Auckland CIV-2009-404-6747, 30 October 2009.6 Solicitor-General v Siemer HC Auckland CIV-2009-404-6747, 2 November 2009.Costs ruling under appeal[9] The costs matter was dealt with on the papers. Lang J issued a judgment granting indemnity costs in favour of the Solicitor-General on 26 February 2010. 7[10] In that ruling, Lang J noted that the starting point was that normally a party who discontinues a proceeding will pay costs to the other party. However, his Honour noted the presumption may be displaced if circumstances render a different outcome just and equitable. It was also noted that one of the circumstances in which the presumption may be displaced was when a discontinuing plaintiff had achieved all that it had set out to. [11] His Honour noted that by the time proceedings were issued, Winkelmann J had made specific orders directed at Mr Siemer with which there had been no compliance. In Lang J's opinion, the Solicitor-General had little option but to issue the proceedings. [12] His Honour then noted that the Solicitor-General sought discontinuance only after the websites had been brought into compliance, and after Mr Siemer had signed the written undertaking. He was accordingly of the view that the plaintiff had achieved all that it had legitimately set out to do in the proceedings. [13] Lang J considered that at least increased costs should be ordered. However, reviewing the circumstances he was of the view that increased costs would not adequately deal with the situation. It was a case of open defiance of orders of the Court, such defiance taking place in the knowledge that the Solicitor-General would inevitably respond with those proceedings. Accordingly he held that indemnity costs were justified, but deferred making a final determination until a memorandum setting out the calculation of costs was filed. [14] Subsequent to that ruling, at the Court's request, an itemised schedule of costs was filed. Of that figure, approximately $8,000 related to preparation of court documents and a further $27,000 related to travel time, research and preparation for7 Solicitor-General v Siemer HC Auckland CIV-2009-404-6747, 26 February 2010.the various court appearances. Final judgment for $38,281.40, plus disbursements of $898.68 and travel costs of $3,310.87 was issued on 24 March 2010. 8Notice of appeal[15] Mr Siemer's appeal notice refers to the judgment of 26 February. The appeal should be against the final judgment. Without opposition from the respondent, we treat the appeal as if filed against the ruling of 24 March, and if needed grant leave to appeal out of time. [16] The appeal notice first disputes a statement in the judgment of Lang J that the discontinuance was conditional on the undertaking. This is said to be incorrect. [17] Next there is an allegation of bias against Lang J. This relates to the steps taken by Lang J after first being advised that the Solicitor-General considered the article was no longer in breach. Mr Siemer submits that the Judge was wrong to query this stance and should not have entered the arena. [18] Finally it is submitted that the ruling was wrong not to follow the standard rule that costs follow the event. The notice claims that the evidence showed that the initial application was a vexatious and ill-conceived abuse of process and selective in its focus on Mr Siemer.Process leading up to appeal[19] Mr Siemer had sought from Lang J an order that the transcript of the hearing that occurred on 16 November 2009 be obtained. Lang J declined to do so. Mr Siemer repeated the application in the context of the appeal, and Arnold J directed that to occur. [20] When the transcripts were supplied, Mr Siemer disputed their accuracy. Accordingly, Chambers J directed that:8 Solicitor-General v Siemer HC Auckland CIV-2009-404-6747, 24 March 2010.a) Mr Siemer provide to the Court by 10 September 2010 a marked up version of the Court transcripts, indicating those parts which had been wrongly transcribed or where there were omissions; b) the Registrar at the High Court at Auckland was then to arrange for a Deputy Registrar to listen to the official recording paying particular attention to those parts of the current transcripts which Mr Siemer said were wrong; c) the Deputy Registrar was then to provide to this Court the official transcripts certified as accurate to the best of his or her knowledge. [21] Mr Siemer did not take that opportunity, and accordingly we proceed on the basis of the transcripts as provided.Submissions on appeal[22] Mr Siemer advances two bases for the appeal. [23] He first submits that there was a cheaper alternative route available to the Solicitor-General. He advises the Court that initially the Solicitor-General wrote to the Domain Name Commissioner alleging the websites were in breach of the suppression rulings. Mr Siemer advises that the Commissioner replied seeking a copy of the ruling, but instead of doing this the Solicitor-General chose the more expensive option of contempt proceedings. We take this submission to be that the costs were needlessly incurred and therefore Mr Siemer should not be required to meet them. [24] We do not consider this complaint provides a tenable defence. The Solicitor-General is entitled to bring proceedings directly against the person believed to be responsible for a contempt. It is a matter for his discretion, and costs should not be denied because there may have been other options. We accordingly do not address this further.[25] Mr Siemer next submits that it is inappropriate to award costs against him when he has never had an opportunity to defend the proceedings. He does not accept the legitimacy of the proceedings, and has never had an opportunity to advance a substantive defence. He rejects the proposition that there was a settlement. His essential position is that the Solicitor-General chose to bring the application and chose to end it before it could be argued and he should not be responsible. [26] The Solicitor-General seeks to uphold the award. Mr Sinclair advised that by the morning of the hearing the Solicitor-General was of the view that the article was now in substantial compliance with the orders. Although one could still query some of the content, the degree of non-compliance, if any, no longer merited proceedings. He submits that this explains the questions raised by Lang J. His Honour was interested in strict compliance but the Solicitor-General's focus in contempt proceedings was different. [27] Notwithstanding discontinuance, it is submitted that the circumstances merited departure from the usual rule that a party that discontinues pays costs. There was deliberate defiance of Court orders from the outset, and an eleventh hour retreat. The public interest in stopping the breach was strong and it was an exceptional case meriting indemnity costs.Decision[28] We commence by observing that the events of 16 November, and the discontinuance that occurred on that day, cannot be viewed in isolation. There had been several hearings and rulings preceding that day. On each occasion that a Court was required to determine anything, Mr Siemer was unsuccessful. This included both whether the articles were in breach of the suppression orders and a raft of procedural applications in relation to the contempt application. 9 Rule 14.2(a) of the High Court Rules provides that the party who fails with respect to a proceeding orinterlocutory application should pay costs to the other party. Up to the point of discontinuance on 16 November, Mr Siemer had been unsuccessful in each application he had made or opposed and was liable for costs as regards them.9 We note that an application for discovery was dealt with by consent.[29] Next, concerning the discontinuance itself, we agree that Lang J was correct to see this as a situation where the discontinuing party had achieved what he set out to achieve. The application was for imprisonment for contempt; it is not to be treated as unsuccessful because the Solicitor-General chose to accept alternative redress in the form of compliance with the Court's orders, and an undertaking not to breach in the future. The contempt jurisdiction is an important cog in maintaining the integrity of the criminal justice system, and in ensuring the rights of accused persons to a fair trial. The outcome brought about by the application met those aims. The breach ceased by removal of the material from the website; the likelihood of future compliance was secured by a personal undertaking. [30] We accordingly are of the view that it was a case where it was appropriate to award costs to the discontinuing party. In brief that party had significant procedural success prior to discontinuance, and ultimately achieved the goals of an application brought solely in the public interest. [31] Although the quantum of the costs award was not a focus of the appeal, we have considered it appropriate to address the issue of whether indemnity costs were properly awarded. [32] Rule 14.6(4) of the High Court Rules provides that indemnity costs may be awarded if:a) the party has acted vexatiously, frivolously, improperly or unnecessarily in commencing, continuing, or defending a proceeding or a step in the proceeding; b) the party has ignored or disobeyed an order or direction of the court; f) some other reason exists which justifies the court making an order for indemnity costs despite the principle that the determination of costs should be predictable and expeditious.[33] We consider that the procedural history we previously outlined would justify recourse to para (f). However, we do not consider that necessary as in our view the circumstances fit within both paras (a) and (b).[34] Beginning first with para (b), this was not a contempt proceeding based only on an allegation by the Solicitor-General that Mr Siemer was in breach. Rather the fact of breach was first established by a ruling of the Judge who issued the contravened orders. Mr Siemer was not, as he submitted before us, deprived by the discontinuance of an opportunity to present his defence. The process before Winkelmann J offered Mr Siemer an opportunity to challenge the underlying orders. [35] The initial suppression orders applied to Mr Siemer as much as to anyone else. However, here the initial breach is aggravated by continued defiance of a specific ruling holding that Mr Siemer's publications were in breach. We have no difficulty with seeing this situation as coming within para (b). [36] Further, viewed as a whole we consider Mr Siemer's conduct can be viewed as vexatious and frivolous within para (a). The proceedings were delayed because of non-appearance; applications were made which were all unsuccessful; specific orders of the Court were ignored and then finally there was a piecemeal deletion of the offending material. From 9 October when Winkelmann J made her unchallenged orders, there was a sequence of delay and unnecessary steps culminating in compliance immediately prior to the rescheduled substantive hearing. In our view r 14.6(4)(a) equally provided a basis on which indemnity costs could be ordered. [37] Finally, we address the allegation of bias. Our decision to date confirms the correctness of Lang J's decision. However, we reject the complaint which is based on the fact that the Judge raised with counsel for the Solicitor-General whether the excisions were sufficient. The contempt application formally put the publication before the Court, and the Judge was entitled to satisfy himself as to whether there was an on-going breach of Court orders. Indeed, he was invited by counsel for the Solicitor-General to do so. The process that was followed was a proper one.Conclusion[38] The appeal is dismissed. The respondent is entitled to scale costs on this appeal, and the normal disbursements.Solicitors: Crown Law Office, Wellington, for Respondent