Blomfield v Slater

[2015] NZHC 2239

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-005218 [2015] NZHC 2239

BETWEEN

MATTHEW JOHN BLOMFIELD

Plaintiff

AND

CAMERON JOHN SLATER Defendant

Hearing:	23 July 2015
Appearances:	Plaintiff in person Defendant in person
Judgment:	17 September 2015

JUDGMENT OF ASHER J

This judgment was delivered by me on Thursday, 17 September 2015 at 5 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Copied to: Plaintiff. Defendant.

BLOMFIELD v SLATER [2015] NZHC 2239 [17 September 2015]

[1]      In this long running defamation proceeding, the plaintiff Matthew Blomfield applies for an order that the defendant Cameron Slater be held in contempt of Court. It  is  claimed  that  Mr Slater has  breached  an  undertaking to  the Court and  has breached the confidentiality of a settlement conference.  Although he seeks no relief in his application, he asserted in his submissions that it would be appropriate for the Court  to  commit  Mr  Slater  to  a  term  of  imprisonment.    Mr  Slater  denies  the contempt and in response seeks an order that an undertaking that he filed not to publish material relating to Mr Blomfield be revoked.

[2]      The  dispute  has  something  of  a  history.    The  background  facts  to  the defamation claim and the procedural steps up to 12 September 2014 are set out in a judgment  of  that  date.1      In  brief,  Mr  Slater  is  being  sued  for  defamation  by Mr Blomfield, originally in the District Court but now in the High Court following a transfer.   The alleged defamation relates to 13 articles published on Mr Slater’s Whale Oil blog that refer to Mr Blomfield.  One such blog post was entitled “Who really  ripped  off  KidsCan?”    It  was  alleged  that  business  interests  with  which Mr Blomfield  was   associated  had  defrauded   a  charitable  trust  for   children.

Mr Blomfield claims that the articles assert that he was a thief as well as dishonest, dishonourable, a party to fraud, involved in criminal  conspiracy, bribery, deceit, perjury, conversion, the laying of false complaints, drug dealing and making pornography.

[3]      Mr Slater admits publishing the articles in question, but says that they are not defamatory.  He seeks to raise the defences of truth and honest opinion.

[4]      When  the  matter  was  originally  before  the  Manukau  District  Court,  on

1 October 2012 at a conference before Judge Charles Blackie, Mr Slater’s counsel at

the time Mr Williams orally undertook:2

…  that  there  would  be  no  further  publication  concerning Mr  Blomfield and/or his associates on the blog site or any other blog site under the control of Mr Slater or at the behest of Mr Slater, other than that might relate to information  that  is  already  in  the  public  domain  via  a  reputable  media source, for example radio, television or radio or weekly newspapers.

1      Slater v Blomfield [2014] NZHC 2221, [2014] 3 NZLR 835 at [1]–[16].

2      Blomfield v Slater DC Manukau CIV-2012-092-001969, 1 October 2012 at [6].

[5]      It was recorded by Judge Blackie in his minute that counsel had “indicated on behalf of his client” that the publications would not be made.3    Despite the slightly unusual wording, Mr Slater accepts that there was an undertaking given to the Court in the terms set out.   This was a sensible concession on his part, as the Judge appeared to treat what Mr Williams had said as an undertaking, and the parties have acted  since  on  the  basis  that  there  was  an  undertaking  which  was  binding  on

Mr Slater.  Mr Slater now seeks to have it revoked.

[6]      The proceeding is taking a long time to get to trial.   There have been a number of interlocutory arguments.  A settlement conference on 27 February 2015 was ultimately unsuccessful.  Mr Slater has appealed the decision of 12 September

2014 which refused to afford him the protection given by s 68(1) of the Evidence Act

2006, and that appeal is awaiting a hearing.  Almost three years have gone by since the giving of the undertaking.

The contempt jurisdiction

[7]      The High Court has a common law jurisdiction to punish conduct which risks undermining the administration of justice.4     The power to punish includes imprisonment or a fine.  The common law power to do so is recognised by s 9 of the Crimes Act 1961.5     There is in certain circumstances statutory jurisdiction for a Judge to punish for contempt.6    There can be different types of contempt including (such as in this case) breach of Court orders or undertakings.

[8]      The rationale for punishing this type of contempt is that the rule of law depends on Court orders being obeyed.   As has been explained by the Canadian Supreme Court, if people are free to ignore Court orders because they disagree with them or believe they are wrong, anarchy cannot be far behind.7    If a client thinks

orders are wrong then there are various legal processes available to challenge them,

3 At [6].

4      Siemer v Solicitor-General [2013] NZSC 68, [2013] 1 NZLR 441 at [1].

5      This section provides that no one shall be  convicted of any common law offence in New Zealand, but then provides that the section does not affect the power of the House of Representatives or of any Court to punish for contempt.

6      For example, s 56C of the Judicature Act 1908.

7      Canada (Human Rights Commission) v Taylor (1990) 75 DLR (4th) 577 (SC) at [184] per

McLachlin J.

but they are not to be ignored.  To allow them to be ignored would be to undermine the rule of law.  The position was summed up by McGrath J in Siemer v Solicitor- General:8

Effective administration of justice under our constitution requires that the orders of the courts are obeyed unless properly challenged or set aside. Public confidence in the administration of the law, also necessary for its effective administration, requires that there is a strong expectation that those who ignore court orders are quickly brought to account.

[9]      There is no doubt that an undertaking by a person given to and recorded by the Court has the same force as an injunction, and a breach can be a contempt of Court.9   In those circumstances there is no distinction between an undertaking and an injunction.  Mr Slater, who like Mr Blomfield, represented himself, did not contest the proposition that he could be liable for contempt if there had been a breach of the undertaking.    It  was  accepted in  Malevez v Knox that an  undertaking could  be enforced by committal, and I have no doubt that it can also be enforced by a fine.10

The alleged contempts

[10]     The alleged contempts come within two categories.  First, there are posts and comments to Mr Slater’s blog, which Mr Blomfield says breached the undertaking by containing information about him which was not already available in the public domain from a reputable media source.  Second, there are references by Mr Slater where he allegedly referred to what was said in confidential settlement conferences.

[11]     In his original submissions Mr Blomfield listed 26 acts of contempt.  These alleged contempts were significantly reduced in number as the hearing before me progressed.

Breach of undertaking

[12]     It  was  Mr  Slater’s  submission  to  me,  which  was  not  challenged  by

Mr Blomfield, that after the giving of the undertaking he took all the posts down that

8      Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [26].

9      Malevez v Knox [1977] 1 NZLR 463 (SC) at 467 per Wild CJ.

10     At 467.

referred to Mr Blomfield and did not put them back.  He asserted that all posts and links to Mr Blomfield no longer exist on the site.

[13]     In the end I am satisfied that Mr Slater was in general terms accurate when he said that following the giving of the undertaking he had made all reasonable efforts to remove the references to Mr Blomfield that were the subject of the defamation proceedings.

[14]     The complaints largely concern posts that for some reason or another were a hangover from the pre-undertaking postings that re-appeared, or were commented on by third parties after the undertaking was given, or comments about the proceedings. I now go through the alleged breach of order contempts that have survived the cull that took place through the hearing.  I bear in mind that the crucial date is 1 October

2012, when the undertaking was given.   Nothing published prior to that date and promptly deleted after that could be a contempt.

Articles

[15]     The  first  complaint  concerns  an  article  entitled  “The  Herald  on  Sunday running enemy propaganda”, dated 26 August 2012.  That article claimed a journalist willingly assisted Mr Blomfield in spreading misleading stories.   It  was edited, probably after the undertaking, to delete the reference to Mr Blomfield and to refer to a “certain person”.   I consider that edit was sufficient to result in the article complying with the undertaking. There was no contempt.

[16]     The second complaint concerns an article entitled “Cowboy Liquidators”, dated 13 November 2012, published after the undertaking.   It contained links to stories  that  were  defamatory  of  Mr Blomfield.  The  links  were  created  by  an algorithm,  and  the  links  now  have  been  removed.    I accept  that  the  automatic creation of links that refer to Mr Blomfield can be a publication, and accordingly their creation was a breach of the undertaking. However, the breach was at worst technical and has been rectified.   There is no present publication in breach of the undertaking.  I find there was no contempt.

[17]     The third complaint concerns an article dated 1 January 2013 entitled “Whale Oil site stats and other info 2012”. The article includes a list of the top 10 posts with embedded hyperlinks, including “The Blomfield Files, Ctd – The real story about HELL”; “Sunday buys Blomfields spin” and “Who really ripped off KidsCan?”. These articles linked to articles that pre-dated the undertaking.  The articles and the hyperlinks have since been removed but the text of the headings remains.

[18]     Mr Slater submitted that the reference to the title of a defamatory article cannot, in of itself, be a breach of the undertaking.   I do not accept that.   The undertaking is expressed in wide terms to prohibit “further publication[s] concerning Mr Blomfield”.   A hyperlink to an offending article on a website controlled by Mr Slater  that  is  available  after  the  undertaking,  is  a  “further  publication”.    In allowing it to be accessed after the undertaking Mr Slater could be “further” making it available.   However, the links that were made inoperative after the undertaking was given but which still showed, could be a publication caught by the undertaking if the titles refer to Mr Blomfield. They are publications about Mr Blomfield.

[19]     I accept, however, that the top 10 posts would have been created without input from Mr Slater and that Mr Slater has subsequently removed the offending articles.   So there has been a publication which is in breach of the undertaking, although the removal of the hyperlink makes it a very minor breach.

[20]     The fourth complaint concerns the article entitled “Oh look I’m making the news again, HOS only tells half the story” dated 1 December 2013. The article is still online.   In it Mr Slater makes derogatory statements about Mr Blomfield.   These include, but are not limited to, referring in an oblique manner to Mr Blomfield as a ratbag  and  a  dodgy  businessman;  claiming  Mr  Blomfield  only  pursued  the defamation action because he knew it was costing Mr Slater money; and referring to him as a former bankrupt and disbarred director.

[21] Mr Slater prefaced his comments by referring to the directive from Judge Blackie cited at [4] above. He appeared to rely on the exception that he could publish material that related to information already available in the public domain.

The article itself was a response to a Herald on Sunday article which he considered to not state the whole story.

[22]     In my view the exception to the undertaking did not allow Mr Slater to publish defamatory material about Mr Blomfield.   Mr Slater did not point to a reputable media source in the public domain that supports his accusations.  Although Mr Slater may feel he is being gagged by the undertaking, he agreed to its terms. The article contains a disparaging reference to Mr Blomfield, although Mr Slater appears to be trying to limit this to matters in the public domain.  I regard this as a breach of the undertaking.   It is a minor contempt because it does not repeat the previous serious defamations, and the derogatory statements are oblique.

[23]     The fifth complaint concerns an article “High Court accepts application for appeal meanwhile wrongs commission decides to prosecute me”, dated 23 December

2013.   The article is still online.   In it Mr Slater refers to the “manipulations of Mr Blomfield” and insinuates he is behind the Director of Human Rights issuing proceedings to prosecute Mr Slater for breaching Mr Blomfield’s privacy.

[24]     Mr Slater submits that he was careful to remain within the bounds of the undertaking.  However, he does not in the article refer to information to support his claims that is or was available in the public domain via a reputable media source. The disparaging reference to Mr Blomfield breached the undertaking.   However, given the mild nature of the word “manipulations” it is a minor contempt.

Comments

[25]     In  addition  to  the  articles  themselves,  Mr  Blomfield  complains  about comments to articles on Whale Oil.

[26]     First, there were comments to an article entitled “Serial troublemaker: alleged blackmailer Graham Mcready is at it again”, dated 10 November 2012.   The comments made indirect reference to Mr Blomfield as a liar in affidavits and a vexatious litigant.  The comments are old and have been deleted.  Since they were made by persons other than Mr Blomfield, and the comments have been deleted, I consider any breach to have been rectified. There is no contempt.

[27]     Second,  there  was  a defamatory comment  to  the article  “The  Herald  on Sunday running enemy propaganda”, dated 29 August 2012, as well as one to an article “An Idea for Anne Tolley”, dated 29 August 2012.  The comments have been removed, and accordingly I consider they are similarly rectified.   There is no contempt.

[28]   Third, there are comments Mr Slater made to a story entitled “Which Government Department the Herald certainly has no idea”, dated 14 February 2013. In the comments Mr Slater made pejorative references to Mr Blomfield as “little Matty” who had “decided to try a bit of vexatious litigation”.  These comments have been now deleted but I accept Mr Blomfield’s submission that their publication was in breach of the undertaking and deliberate in that Mr Slater made the comments himself.  These comments are in a different more serious category from the original pre-undertaking  allegedly  defamatory  statements,  because  they  were  posted  in breach of the undertaking and did not relate to matters in the public domain.  There was a minor contempt.

[29]     Fourth,  Mr  Blomfield  complains  about  a  comment  to  an  article  entitled

“Random impertinent questions – number 3 in a very regular series” dated 1 May

2013.   There is  a comment  to  that article which  states  “Perhaps  it’s  a kind  of

Mattjik”. The comment is still online.

[30]     Mr Slater was obliged to remove all references to Mr Blomfield not in the public domain.  Once comments that offended the undertaking were brought to his attention he should have promptly removed them.  The reference to “Mattjik” is a pejorative reference to Mr Blomfield whose first name is “Matthew” and is a publication  about  Mr Blomfield  in  breach  of  the  undertaking.    “Mattjik”  is  not strongly pejorative, and the contempt is minor.

[31]     Fifth is a comment to an article entitled “Stupid is as stupid does, ctd”, dated

25 May 2012.   The article is about a drug dealer.   The offending comment states “Probably Matt Blomfields’ dealer”, which is a clear insinuation that Mr Blomfield is a drug user.   The article itself does not mention Mr Blomfield and it and the comment were first published before the undertaking came into force.   However,

Mr Slater continued to publish the comment and it is seen each time someone visits the article.    Accordingly I consider the defamatory comment, which still exists, is being published in breach of the undertaking.  This is contempt.  Given that this is one of a long list of comments in an old article, it is a minor breach.

Miscellaneous claim

[32]     Finally Mr Blomfield claims that Mr Slater has breached the undertaking by uploading documents from his hard drive to the website “slashdocs”.   I do not consider this claim has merit.  There is no evidence that “slashdocs” is Mr Slater’s website, no proof that he uploaded the documents, and in any event the upload occurred before the undertaking took place. The website itself is no longer online. I put this claim to the side.

Obstructing justice

[33]     In addition, Mr Blomfield claims that Mr Slater has obstructed justice by terrorising witnesses.   He claims this was done by Mr Slater posting on 9 August

2012  a  story  entitled  “Mattfeasance”,  and  tagging  the  story  with  names  of individuals  who  had  supplied  will  say  statements  for  a  judicial  settlement conference.

[34]     There is no merit in this claim.  As Mr Slater points out, there is no evidence of an intention to terrorise witnesses or that the witnesses felt threatened by this post. The post pre-dates the undertaking and has been removed.  I do not accept Mr Slater acted in contempt in the way alleged.

Breaching the confidentiality of a settlement conference

[35]     There  are  two  claims  of  breach  of  the  confidentiality  of  a  settlement conference.     The  first  relates  to  the  “Mattfeasance”  post  referred  to  above. Mr Blomfield  claims  that  posting  the  names  of  individuals  tagged  to  the  post breached the confidentiality of a judicial settlement conference, presumably in the District Court, although this is not clear.

[36]     I have not been supplied with enough information to determine the issue. Mr Blomfield’s allegation is hard to follow and does not make clear what settlement conference is referred to, nor the terms of any confidentiality order that is said to have been breached, nor how the posting of names breaches that order.  The post is old and has since been removed.  Given those factors I do not consider it necessary to seek further submissions on this alleged contempt.  I will put it to one side as not proven.

[37]     The second breach relates to a judicial settlement conference on 27 February

2015 in front of Associate Judge Sargisson.  At the conference the Judge made clear the importance of confidentiality and that nothing from the conference should be shared with a third party.

[38]     On 28 April 2015 an article entitled “Face of the day” was posted on the Whale Oil site.  “Face of the day” is a daily article posted on the Whale Oil blog along the same lines of “Cartoon of the day” and “Word of the day”.  On 28 April the “Face of the day” was Graham McCready. The post went on to state:

We have personal experience of a serial litigant who just wastes our time over and over again using the court process as a way to try to bully us and cost us time and money defending the ridiculous charges.  Our serial litigant has done it to us for four years and it is his MO as he has used the exact same techniques to bully other people.  He can’t win in court but he can cost his victims time off work and money defending themselves against the rubbish charges and he does it over and over again.

He was given the chance to settle and the judge advised that he settle and told him it was the best deal he was ever going to get. The judge also said he had no chance of winning if he continued to pursue it.  Guess what he did? He  ignored  the  judge  because  winning  is  not  his  motivation,  just  like Graham McCready.

[39]    As Mr Slater accepted, this post breached the confidentiality of judicial settlement conferences.  To any regular reader who was aware of Mr Slater’s dispute with Mr Blomfield, the “serial litigant” was plainly Mr Blomfield.

[40]     The integrity of the court settlement conference process depends on parties being able to freely exchange views and make concessions, without fear of that material being later used against a party in the court proceedings, or being published. Publishing material despite a direction of the Court that the material is confidential

interferes with the administration of justice and the public’s confidence in the courts, and is contempt.  In this case the publication of material stated in confidence in the settlement conference was unfair to Mr Blomfield, who would have relied on that confidentiality when he voluntarily participated in the settlement process.

[41]     The question arises whether Mr Slater had the required mens rea given that his wife published the post.   It was said by a full Court of the High Court in Solicitor-General v Radio New Zealand:11

Accordingly we hold that the mens rea element is satisfied by proof that the defendant knowingly carried out the act or was responsible for the conduct in question.  Proof of an intention to interfere with the due administration of justice may assist the conclusion that the publication had the required tendency, and its presence or absence would be relevant to penalty; but the absence of such an intention will not necessarily lead to a conclusion that no contempt has been admitted.

[42]     Mr Slater said in explanation for the publication that after the settlement conference he went home and told his wife what had happened.  He had no intention that anything be published about the conference.  He did not think to tell her about the  confidentiality  order,  and  the  reference  to  the  settlement  conference  was composed and posted by her while he was en route by plane to Europe.  His lack of intention or knowledge was not disputed by Mr Blomfield.

[43]     I have no doubt that Mr Slater had the requisite mens rea for contempt, even though he did not himself compose or direct the publication of the contemptuous statement.  His wife can be seen for the purposes of the publication as his agent (I have no evidence as to whether she was in any formal way an employee), and it clearly was within his control to ensure that there was no publication.   When a defendant who is in control of a publishing site such as a newspaper or a blog fails to take reasonable steps to ensure that Court orders and directions are obeyed, that can be contempt, even if the publication is carried out without the defendant’s actual

knowledge.12     Mr Slater was at least careless in telling his wife about what had

happened without warning her of the confidentiality. This led to the publication.

11     Solicitor-General v Radio New Zealand [1994] 1 NZLR 48 (HC) at 55–56.

12     Attorney-General v Hancox [1976] 1 NZLR 171 (SC) at 174, and Norbrook Laboratories v

Bomac Laboratories Ltd (No 7) HC Auckland CIV-2002-404-1732, 18 December 2003 at [40].

[44]     It is also the case that by telling his wife he breached confidentiality.  While the telling alone might not in all the circumstances amount to contempt, telling his wife without also telling her of the confidentiality and ensuring that there was no publication could be seen in itself as a contempt.

[45]     Accordingly I find Mr Slater in contempt of court for breaching court ordered confidentiality.  I accept, however, that Mr Slater’s explanation of events is relevant to sentencing and goes some way to mitigate the seriousness of the contempt.

Conclusion on breaches

[46]     In conclusion, I consider Mr Slater has acted in contempt of court in seven ways.  Six of those relate to breaches of a court undertaking.  The seventh is a breach of the confidentiality that attaches to the 27 February 2015 judicial settlement conference.

The appropriate punishment for contempt

Approach

[47]     I  have  already  referred  to  McGrath  J’s  statement  in  Siemer  v  Solicitor- General that the objective of contempt of Court proceedings is to uphold the rule of law and public confidence in the effective administration of justice.  As such there is a strong expectation that those who ignore court orders are brought to account.13

[48]     It must be recognised therefore that those who commit contempt must be denounced, and that deterrence is an important consideration.  However, as with all sentencing exercises the objective seriousness of the relevant conduct and the defendant’s personal culpability for the conduct must be assessed.   In accordance with   ordinary   sentencing   principles   a   defendant’s   means   and   any   personal

aggravating or mitigating factors will be taken into account.14

13     Siemer v Solicitor-General, above n 8, at [26].

14     Solicitor-General v Krieger [2014] NZHC 172 at [59]; Solicitor-General v Alice [2007] 2 NZLR

783 (HC) at [88].

[49]     I have no affidavit evidence concerning Mr Slater’s personal circumstances. The tenor of Mr Blomfield’s submissions was that he has backers and has access to funds.   Mr Slater claimed that he had no backers and was self-funded.   On the information before me there is no reason to believe that Mr Slater has significant resources.    Clearly  he  has  some  assets,  but  for  the  purposes  of  the  sentencing exercise I will treat him as being of relatively modest means.

The breaches of the undertaking

[50]     There is no doubt that a defendant who runs a blog and has a very large number of followers, who have the ability to comment on posted articles, has a vast amount of material to cover if certain subject areas have to be removed.  However, as was  acknowledged  in  submissions  by Mr Slater,  there are electronic techniques whereby  references  to  particular  words  and  names  can  be  removed  en  masse.

Mr Slater claims to be a journalist and was indeed found to be a journalist.15   In these

circumstances there was a particular duty on him to ensure that the undertaking was complied with, and that reasonable measures were put in place by him to ensure any further postings on his site by third parties did not breach the undertaking.

[51]     I am not satisfied that Mr Slater at any stage set out to deliberately breach the undertaking.  The minor breaches that I have outlined were not intended to offend. By and large they were short statements left over after Mr Slater had made efforts to remove all offending material, or new statements which referred to current proceedings in a way that is pejorative of Mr Blomfield, but in a different and much more mild way than the earlier allegedly defamatory statements.  He made attempts to comply with the undertaking. No identified particular harm resulted from the dissemination of any of the information.

[52]     On an overview, I see the contempts as minor, but not so trivial as to warrant a finding of no contempt.  They were more than technical.  I have decided that in

relation to all the breach of undertaking contempts the appropriate fine is $500.

15     Slater v Blomfield [2014] NZHC 2221.

Confidentiality of the settlement conference

[53]     The  breach  of  the  confidentiality  of  the  settlement  conference  is  more serious.   I have already referred to the  circumstances.   This was essentially an accidental contempt of Court by Mr Slater, but one that was the result of significant carelessness.  There appear to have been no adverse consequences for Mr Blomfield or the Court process as a result, in that the posting does not appear to have been a matter of any interest to the media or any other person.  Mr Slater, when he became aware of the contempt, provided a full and unqualified apology to Associate Judge Sargisson.   The article was  removed.   The Associate Judge  did  not  consider  it necessary to take any action of her own volition.

[54]     It is also a mitigating factor that Mr Blomfield was not specifically named and  that  only  those  that  had  been  following  the  dispute  with  Mr  Blomfield reasonably closely would have been aware that the reference was to a dispute with him.

[55]     In these circumstances Mr Slater must be found guilty of the contempt and fined, but I am satisfied that a modest fine will be a sufficient penalty.   I have decided that a fine of $1,000 is appropriate.

[56]     It follows that I do not accept Mr Blomfield’s proposal that Mr Slater should be imprisoned.  For the reasons that I have outlined the contempts are far from the category of serious contempt which might warrant such a penalty.

Discharge of the undertaking

[57]     Mr Slater argued for a discharge.   Following the hearing I received further submissions  from  Mr  Slater  and  Mr Blomfield  on  this  matter.    Mr  Slater  filed lengthy submissions, including over 200 pages of blog articles and affidavits, that expanded his argument that what he has said about Mr Blomfield is true.

[58]     This is not the appropriate forum to canvass those arguments, which are particularly  complex.    Suffice  to  say  that  the  truth  of  the  allegations  against Mr Blomfield will be vehemently put forward and strongly contested at trial.  I am

not persuaded that the undertaking should be discharged.  It was voluntarily given, and given the wide and extreme nature of the allegations that were the subject of the claim, it was appropriate.  Nothing has happened to change that position.

[59]     Mr Slater complains about the length of time which these proceedings are taking to get to trial.  The case is proceeding very slowly, and neither seems to be pushing hard for trial.  It is Mr Slater’s appeal which presently delays progress.

Payment

[60]     The Court has inherent jurisdiction to order a fine imposed for contempt of court to be paid directly to the complainant.  In Taylor Bros Ltd v Taylors Group Ltd the Court of Appeal said:16

Perhaps there is no fundamental objection in principle to accepting even that the Court could order the whole fine to be paid to the complainant.   We think, however, that this would be to go too far.  The contempt jurisdiction exists in the public interest as a sanction to ensure that orders of the Court are complied with. An element of amends to the public institution should always be present in a fine.

[61]     That statement has been frequently applied.17   In Netherland Holdings, it was ordered that 90 per cent be paid to the complainant.   I accept Mr Blomfield is a victim of the contempt, but I would not go as far as in Netherland Holdings as a substantial portion of Mr Slater’s wrong is in the disrespect he has shown to the solemnity of Court undertakings and the confidentiality of Court processes.   I consider it appropriate that Mr Slater pay half the fine ($750) to Mr Blomfield.

Result

[62]     Mr Slater is found guilty of contempt of Court by posting material in breach of the undertaking, but they were minor contempts and the fine is $500.   I order Mr Slater to remove the material that has been found to be in contempt of Court, and

is still present, from Whale Oil as soon as reasonably possible.

16     Taylor Bros Ltd v Taylors Group Ltd [1991] 1 NZLR 91 at 93.

17     For example Queen Elizabeth the Second National Trust v Netherland Holdings Ltd [2014] NZHC 1094; Shotover Jet Ltd v Butterfli Enterprises Ltd HC Christchurch CIV-2005-425-593,

24 May 2006; Morris v Douglas (1996) 10 PRNZ 363 (HC).

[63]     The breach of confidentiality of the settlement conference of 27 February

2015 was not a minor contempt, but it was not deliberate and in the circumstances there were significant mitigating features as outlined. The fine is $1,000.

[64]     I order Mr Slater pay half the fine ($750) to Mr Blomfield.  The other half is payable to the Crown.

[65]     The application by Mr Slater that he be discharged from the undertaking is declined.

[66]     In essence both parties have had a measure of success in this hearing.  In any event they were both self-represented. There will be no order as to costs.

……………………………..

Asher J