Lobb v Ryan
[2020] NZHC 2841
•30 October 2020
NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-1543 CIV-2019-404-1595
[2020] NZHC 2841
UNDER Family Proceedings Act 1980, Property (Relationships) Act 1976 and Credit Contracts and Consumer Finance Act 2003 BETWEEN
STUART JAMES LOBB
Appellant
AND
VERENA COLLEEN RYAN
Respondent
Hearing: 24 August 2020 Appearances:
Appellant in person
P Cobcroft for the Respondent
Judgment:
30 October 2020
JUDGMENT OF POWELL J
[Costs and contempt issues]
This judgment was delivered by me on 30 October 2020 at 3.30 pm pursuant to R 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
LOBB v RYAN [2020] NZHC 2841 [30 October 2020]
[1] Following a hearing on 27 February 2020, I issued two judgments dismissing appeals brought by the appellant, Stuart Lobb, against three decisions of Judge Burns in the Family Court.
[2] The first judgment (“the dissolution appeal”)1 dismissed an appeal against a decision of Judge Burns in the Family Court dissolving Mr Lobb’s marriage to the respondent, Verena Ryan. The second judgment (“the occupation, spousal maintenance and credit contracts appeal”)2 dismissed appeals against two further decisions of Judge Burns declining to grant Mr Lobb an occupation order, declining to grant spousal maintenance, and refusing to open a credit contract.
[3] Costs were awarded to Ms Ryan in respect of both judgments,3 with the occupation, spousal maintenance and credit contracts appeal judgment including directions for determining the amount of costs, as well as if there had been any contempt by Mr Lobb in the course of the appeal process in this Court.4
[4] Mr Lobb promptly appealed both judgments to the Court of Appeal. The application for leave to appeal the dissolution appeal judgment has been dismissed.5 With regard to the occupation order, spousal maintenance and credit contracts appeal the Court of Appeal advised that if Mr Lobb wished to appeal on the occupation order and credit contract issues leave would have to be sought in the High Court. Mr Lobb subsequently applied for leave and this was declined on 11 August 2020 (“the leave judgment”).6 Costs were awarded to Ms Ryan on the leave application, the leave judgment noting that following the filing of submissions the costs arising on the leave judgment would be addressed at the same hearing as the costs on the earlier two judgments.7
1 Lobb v Ryan [2020] NZHC 347.
2 Lobb v Ryan [2020] NZHC 834.
3 Dissolution appeal at [12], Occupation, spousal maintenance and credit contract appeal at [68].
4 Occupation, spousal maintenance and credit contract appeal at [68]-[69].
5 Lobb v Ryan [2020] NZCA 244.
6 Lobb v Ryan [2020] NZHC 2031.
7 At [19].
There are accordingly two issues to be determined in this judgment:
(a)the quantum of costs payable in favour of Ms Ryan arising out of the two appeals and the leave judgment; and
(b)the contempt issues and in particular:
(i)whether Mr Lobb was in contempt of court at any point? and, if so;
whether any sanction should be imposed against him?
Costs
[6]Ms Ryan seeks costs and disbursements as follows:
(a)in relation to the dissolution and occupation, spousal maintenance and credit contract appeals:
(i)costs totalling $46,605.00 calculated on a category 2C basis in accordance with the time allocations set out in Schedule 3 of the High Court Rules 2016. Ms Cobcroft on behalf of Ms Ryan submitted that scale costs are fair as the documents filed by Mr Lobb were “extraordinarily, and unnecessarily long”, and took a significant amount of time and resources to read, take instructions on and respond to. Ms Cobcroft also submitted the amounts claimed reflected the need for additional case management conferences, appearances and memoranda as a result of Mr Lobb’s conduct throughout.
(ii)disbursements totalling $4,919.25, being the costs incurred by Ms Ryan for the preparation of the common bundle at short notice.
(b)costs in the sum of $5,258 on the application for leave to appeal calculated on a category 2B basis in accordance with the time allocations set out in Schedule 3 of the High Court Rules 2016.
Mr Lobb’s position
[7] Mr Lobb opposes any award of costs against him. In oral submissions he suggested that the amounts claimed by Ms Ryan were inflated “by a factor of five – 10”, but provided no detail or other reasons as to why this was so, other than stating that the Family Court has not ordered scale costs against him, and that he had otherwise “not had the time to pick apart the costs claimed”.
[8] Instead, and rather surprisingly given the results of the appeals and the leave judgment, Mr Lobb himself sought costs from Ms Ryan asserting:
I seek punitive costs for this matter, that appear outside the law and were clearly designed to harm my standing in the court, prevent my access to natural justice and deliberately inflict further delay, financial harm and anxiety on me.
I seek costs in the amount Ms Cobcroft sort [sic] plus an additional $50,000 for stress and to send a clear message that the law must be used for a proper purpose.
Costs in my favour of $100,000 would appear justified given the $5,000,000 in assets that are being put at risk through the ongoing deceptive and abusive behaviour of the respondent and her lawyers.
Discussion - costs
[9] It is well established that costs ordinarily follow the event so that the loser in civil litigation, including an appeal, will pay the winner’s costs according to the scale set out in the High Court Rules 2016.8 Given that, as noted, I had already determined Ms Ryan was entitled to costs on both appeals and the application for leave to appeal, there is clearly no basis for Mr Lobb to seek costs from Ms Ryan. Instead, the only issue is whether the costs and disbursements claimed are appropriate and otherwise in accordance with the scale set out in the High Court Rules.
8 Rules 14.2 – 14.5.
[10] Turning first to the costs claimed on the appeals, in my Minute (No. 3) of 29 October 2019 I categorised the proceedings as 2C for the purposes of costs, and having considered the amounts claimed by Ms Ryan I am satisfied the amounts sought are appropriate. I note in particular the nature and duration of the proceedings, the way in which they were conducted by Mr Lobb, as well as the significant number of documents required to be considered, and the sheer size of the documents created by Mr Lobb. On this latter point I note the extensive repetition that pervades the documents filed by Mr Lobb. While the same issues are therefore repeated again and again, it is still necessary to work through each of the documents filed in order to consider any new material, and I accept that this has inevitably increased costs for Ms Ryan. I also observe that the fact that the Family Court may not have previously awarded scale costs is of no moment in determining costs on the matters I have heard, given costs are a matter of judicial discretion at each stage of the court process.
[11] Overall, having observed the proceedings throughout I am also satisfied that Mr Lobb has absolutely no basis to assert that neither Ms Ryan or Ms Cobcroft have conducted themselves in otherwise than an absolutely appropriate manner. In fact, both Ms Ryan and Ms Cobcroft are commended for maintaining their composure throughout the appeal proceedings notwithstanding considerable provocation as will be further detailed with regard to the contempt issue.9
[12] There is equally no basis on which to disallow the disbursements sought by Ms Ryan. Although the task of preparing the bundle usually lies with an appellant, Mr Lobb failed to comply with a number of directions with regard to the production of the bundle10 and as a result Mr Lobb was informed on 20 February 2020 (a week prior to the hearing of the appeals) that unless the agreed bundle was filed by 12 noon on 24 February 2020 Ms Cobcroft was directed to arrange for production of the bundle to ensure the hearing of the appeals could proceed on 27 February 2020.11 At the same time Mr Lobb was advised that if it was necessary to have Ms Cobcroft arrange production of the bundle it would have costs consequences for him. The amount now
9 See [39] to [42].
10 See Minute (No. 3) of 29 October 2019, Minute (No. 5) of 10 December 2019 and Minute (No. 6) of 23 December 2019.
11 See Minute (No 8) of 20 February 2020.
sought to be reimbursed by Ms Ryan for production of the bundle is reasonable and Ms Ryan is therefore entitled to recover that cost.
[13] Taking these matters together Mr Lobb is ordered to pay Ms Ryan costs and disbursements as claimed, totalling $51,524.25 in respect of the appeals.
[14] Similarly, in regard to costs on the application for leave to appeal, I can see no basis on which to disallow or reduce the amounts claimed. Instead I am satisfied the amounts claimed are reasonable, given it has been calculated on a category 2B basis even though arguably costs could have been claimed on a 2C basis as per the earlier direction. The sums claimed are otherwise calculated in accordance with the High Court Rules, with a deduction in the time allowance for the preparation of submissions so as to ensure that the costs claimed did not exceed the actual costs incurred by Ms Ryan.
[15] Accordingly, on the application for leave to appeal, Mr Lobb is ordered to pay Ms Ryan costs of $5,258.00 in respect of the leave judgment.
Contempt issues
[16] The contempt of Court issue in these proceedings involve two distinct issues and orders made. The first issue arises because since the appeals were first filed Mr Lobb has chosen to circulate information, correspondence and other documents relating to the appeals to third parties who have no legitimate interest in the proceedings. The second issue is the language Mr Lobb has consistently used to describe Mr Ryan and Ms Cobcroft throughout the appeal process.
[17] The first issue arose at the second call of the appeals on 8 October 2019. Ms Cobcroft sought what she described as non-publication orders in respect of both appeals. There was not time to address the issue on that day and it was adjourned for determination at the next call of the appeals. Nonetheless in my Minute (No. 2) I directed:
(a)by 15 October 2019 Ms Cobcroft is to file any application for increased security for costs together with any application with regard
to non-publication in relation to these two appeals, as well as a draft timetable to get these appeals through to hearing;
(b)Mr Lobb will then have until 22 October 2019 to respond on each of these three issues;
(c)the appeal will be called again at 9 am on 29 October 2019 to resolve each of those issues; and
(d)in the meantime, there will be an interim order precluding publication of any details of these appeals in any media pending further order of this Court.
[18] The issue of non-publication was argued before me on 29 October 2019 following which I directed:
Following the provision of further documents in relation to the non- publication application, my decision on that part of M[s] Ryan’s application is formally reserved. In the meantime, the interim order made on 8 October 2019, precluding publication of any details of these appeals in any media pending further order of this Court, remains in force.
[19] My decision on this issue was set out in my Minute (No. 4), issued on 8 November 2019. This provided:
In my Minute (No. 3) I confirmed a number of timetable orders made at the most recent conference and reserved my position on the application made on behalf of Ms Ryan for ongoing orders protecting confidentiality until the conclusion of the proceedings.
I have now had the opportunity to consider the application, in respect of which I have been assisted by Mr Lobbs provision of various letters that he has written with regard to the proceedings between himself and Ms Ryan. Specifically Mr Lobb has provided copies of a letter to Caroline Veron of Barfoot & Thompson Remuera dated 14 May 2019 and a letter to the Board of Directors of Panuku (being one of the Auckland City Council commercial organisations), of which Ms Ryans current partner is the Chief Executive Officer. Both letters confirm the entirely inappropriate dissemination of material from the Family Court proceedings to third parties. In the circumstances, I accept that the orders sought by Ms Cobcroft on behalf of Ms Ryan are entirely appropriate and can be made pursuant to this Courts inherent jurisdiction.
The existing interim orders will accordingly remain in place until the appeal is determined, subject to any further orders put in place by the appeal Judge at that point.
[20] After Ms Cobcroft raised further issues with Mr Lobb’s compliance with the orders made I issued Minute (No. 7) on 19 February 2020, and stated:
The apparent circulation by Mr Lobb of his submissions beyond the Court and parties is also on the face of it in breach of my earlier directions. Again, it is not necessary to determine this issue prior to the substantive hearing but it will be for the Judge hearing the appeals to determine whether there are costs and/or contempt consequences for Mr Lobb.
[21] After the Court was copied into further correspondence from Mr Lobb, and which was also clearly copied to a number of third parties, I issued my Minute (No. 8) the next day which relevantly stated:
The Court notes a range of further communications from Mr Lobb on a variety of matters. All parties and in particular Mr Lobb should note that the matters before this Court are limited to the two specific appeals that will be heard next Thursday 27 February 2020. The Court has no jurisdiction to entertain anything outside the matters which are before the Court.
In addition, in the event that the earlier directions form the Court were unclear I confirm Mr Lobb is not to copy in third parties on any matter related to these appeals. To confirm: the only recipients of communication relating to the appeal should be Ms Cobcroft and the Court Registry.
[22] The inappropriateness of the language used by Mr Lobb was first objected to by Ms Cobcroft at the first call of the appeals on 13 August 2019. At that point the focus was on the notices of appeal which did not comply with the High Court Rules 2016 and, in addition, contained considerable amounts of inappropriate and pejorative language to describe Ms Ryan in particular. Following discussion with Mr Lobb in Court he was given a chance to consider his position and file amended notices of appeal that complied with the High Court Rules and refrained from using such language.12
[23] Amended notices of appeal were filed as directed and Mr Lobb’s use of language was not formally raised again until the 19 December 2019 conference, in which the parties had sought guidance on a variety of issues. I subsequently issued Minute (No. 6) dated 23 December 2019 in which I advised the parties:
While preparing for the hearing I was struck by the intemperate and pejorative language used by Mr Lobb in his written material, both in terms of his references to Ms Ryan but also in relation to Ms Cobcroft. This language was repeated in his initial oral submissions at the conference which resulted in a discussion between Mr Lobb and I about the inappropriateness of such references. As a result, a direction was issued to Mr Lobb to desist from such
12 Minute (No. 1) dated 13 August 2019.
language and noting that should he persist in such references with regard to either Ms Ryan or Ms Cobcroft:
(a)if those references are in a document filed by Mr Lobb the document will be returned to him by the Registry and will not be considered by the Court; or
(b)in the event that Mr Lobb was to use such language orally it would, depending on what is said, require further sanction from the Court including being regarded as a contempt of Court with the sanctions that flow from that.
[24] Despite this when Mr Lobb filed his submissions in respect of the appeals it brought an immediate response from Ms Cobcroft which led to the following comment in my Minute (No. 7) of 19 February 2020:
A preliminary perusal of Mr Lobb’s submissions confirms Ms Cobcroft’s observation that the language used in places is intemperate and pejorative and is contrary to my earlier directions on this topic. However, as any directions for Mr Lobb to amend those submissions will invariably result in an adjournment of the fixture, I decline to order the removal of his submissions from the Court file and instead leave issues with regard to the language to be considered in the context of costs and/or contempt following the hearing. Likewise, Mr Lobb is reminded to be careful in the language he uses in the hearing as this too may have costs and/or contempt consequences for him.
Ms Ryan’s position on contempt
[25] Ms Ryan seeks an order holding Mr Lobb in contempt of Court for consistently breaching the suppression order dated 8 November 2019 in the face of numerous warnings and his continued use of intemperate and pejorative language directed toward Ms Ryan and Ms Cobcroft.
[26] On the first issue Ms Ryan has annexed an array of correspondence from Mr Lobb which Ms Ryan asserts is in breach of the various orders made. These include emails to members of the wider Lobb and Ryan families, Ms Ryan’s former lawyers or her lawyers in other proceedings, the then independent trustee of the Lothbury Trust, Ms Ryan’s employer, their daughter’s school, other friends and the Westpac Bank. On the second issue Ms Ryan simply relies upon Mr Lobb’s own written submissions, not only in the course of determining the appeals and the application for leave to appeal, but the present costs and contempt application.
[27] In her submissions Ms Cobcroft acknowledged that the penalty for contempt is typically a monetary fine. Despite expressing concern that Mr Lobb would not comply with any such penalty Ms Cobcroft did not seek that this Court order a sentence of imprisonment for Mr Lobb’s conduct.
[28]Instead Ms Cobcroft requests this Court to:
(a)censure Mr Lobb and condemn his conduct;
(b)impose a financial penalty (with 50 per cent of the fine to be paid to Ms Ryan); and
(c)award indemnity costs on the contempt application.
Mr Lobb’s response
[29] Mr Lobb denies being in contempt of Court at any point. He argues variously that:
(a)he has not breached any suppression order as none were made; or
(b)the terms of any order made was so unclear, ambiguous, vague and/or wide as to render them not binding; and/or
(c)any such order ought to be considered a ‘gag order’ and repugnant to justice; and
(d)in any event he never published anything in violation of any order.
[30] In regard to his choice of language, Mr Lobb says that he was simply doing what was necessary to relieve himself of financial abuse, and that if he crossed a line, Ms Ryan can bring a claim in defamation.
Discussion - contempt issues
[31] As Mr Lobb noted in his submissions, this area of the law is currently in transition with the enactment of the Contempt of Court Act 2019. This Act had however not come into force at the date of the hearing and the transitional provisions within the Act make it clear the law to be applied is “as if this Act had not been passed”.13
[32] Applying the law as it was, the authorities are clear that disobedience of a court order by a party to litigation constitutes a civil contempt.14
[33] As the Supreme Court noted, the purpose of the summary contempt of court process under the common law was:15
… to protect the ability of the courts to exercise their constitutional role of upholding the rule of law. 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. Achieving these aims is part of the objective of the law of contempt. The purpose of the summary process, whereby that law is administered by the judges without the assistance of juries, is to put the administration of the contempt law in their hands.
[34] The jurisdiction to punish for contempt follows from these principles. Its purpose is twofold; to coerce compliance with Court orders for the benefit of a private party, and to serve the public interest in ensuring the administration of justice is maintained and rule of law is upheld.16
13 Contempt of Court Act 2019, sch 1, cl 1.
14 Young v Zhang [2017] NZCA 622, [2018] NZAR 207 at [41] citing Siemer v Solicitor-General [2009] NZCA 62, [2009] 2 NZLR 556. Ms Cobcroft also noted the jurisdiction of this Court to punish contempt pursuant to s 165 of the Senior Courts Act 2016. Section 165 provides that a person will be in contempt of court where they have wilfully and without lawful excuse disobeyed any order or direction of the court in the course of the hearing of any proceedings. A person will however, only be in violation of this provision where their conduct is in breach of an order that has been made in the course of the hearing. Mr Lobb’s conduct does not fall within this category. The subject conduct has generally occurred outside of the hearing process in the written material filed by Mr Lobb, and for the purposes of this judgment I have relied on the common law relating to contempt, as outlined above.
15 Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [26].
16 Grant v Bhana [2016] NZHC 2755 at [3], citing Attorney-General v Times News Papers Ltd [1974] AC 273 (HL) at 308 per Lord Diplock. See also Solicitor-General v Krieger [2014] NZHC 172 at [59].
[35]For contempt to be made out the following elements must be satisfied:17
(a)the existence of an order unambiguous in its terms and binding upon the party;
(b)the party must have knowledge of the terms of the order (typically but not necessarily as a result of personal service of the order upon him or her);
(c)the party, by one or more acts, breached the terms of the order; and
(d)the party’s conduct was deliberate in the sense that he or she knew the obligation cast by the order, but nonetheless intentionally breached that obligation. An applicant need not prove the party knew his or her conduct would constitute a contempt of court.
[36] Where those elements are satisfied, the common law provides that the maximum penalty that may be imposed is a term of imprisonment for no more than three months and/or a fine.18
[37] The summary at the start of this section makes it clear that from 8 October 2019 Mr Lobb was “not to publish any details of these appeals in any media pending further order of the Court”. At the time I issued the order and following discussion with the parties it appeared entirely clear that the ambit of the order prevented Mr Lobb from emailing (a form of media) copies of documents filed in the proceedings to third parties (being anyone other than Mr Lobb, Ms Ryan or their counsel) as that would amount to publication of the material. I find it difficult to accept that Mr Lobb as an intelligent professional could seriously assert that he did not understand that the use of email is a form of media and therefore sending material to people other than the parties was publishing that material in contravention of the order. I do however acknowledge that Mr Lobb sought clarification prior to the 19 February 2020 conference as to exactly what he could not do, clarification I declined to provide
17 Solicitor-General v Krieger [2014] NZHC 172 at [24] –[26].
18 Siemer v Solicitor-General [2009] NZCA 62, [2009] 2 NZLR 556 at [78] – [81].
because I considered the order to be clear. In these circumstances I therefore conclude it is appropriate to give Mr Lobb the benefit of the doubt until the clarifying direction contained in my Minute (No. 8) on 20 February 2020 when the nature of the order was, without question, spelled out for Mr Lobb.19 Despite this Mr Lobb continued to copy specific correspondence relating to the appeals to a variety of third parties including Bill Patterson (Ms Ryan’s lawyer in other proceedings), Mason Lockhart (the independent trustee of the Lothbury Trust) and Alexandra Lowe (Mr Lockhart’s lawyer). None of these individuals had any legitimate interest in the matters under appeal and Mr Lobb was told explicitly that correspondence regarding the appeal was not to be circulated more widely that Ms Cobcroft and the Registry. It follows that there has been at least a technical breach of the orders made relating to publication of appeal material between the issue of Minute (No. 8) on 20 February 2020 and the hearing on 27 February 2020.
[38] Looking at the issue more broadly, I observe that in relation to much of the correspondence complained of by Ms Cobcroft between the initial orders being made and the hearing, it is clear that the overwhelming majority fell outside any of the orders made. Specifically, although it is clear that Mr Lobb chose to air a variety of his issues with Ms Ryan in a most public way, involving as he did their daughter’s school, Ms Ryan’s employer and other friends and family, it did not entail copying Court documents to those parties. Instead Mr Lobb covered a range of matters relating to the relationship as opposed to and well beyond the specific issues addressed in the appeals. At no stage did the orders issued purport to prevent Mr Lobb from raising those issues, nor would I have had the jurisdiction to make such wide orders in the context of the matters before me. As a result that correspondence, however unpleasant for the recipients could not in any event have amounted to a contempt of Court on these appeals, and any remedy for Ms Ryan or indeed the other individuals who were the subject of such correspondence will have to be sought in a different forum.
[39] There is considerably less difficulty with the second contempt issue. As has been previously noted I was struck by what I have described as the intemperate and pejorative language that Mr Lobb has chosen to use in relation to both Ms Ryan and
19 See [21] above.
Ms Cobcroft since the appeals were first filed. As has been set out above he has been repeatedly warned both in writing and in person to cease and desist from using such language but has been unable to do so.
[40] The inappropriate language used has permeated almost without exception all of the documents filed by Mr Lobb, notwithstanding that the descriptors he used were not relevant to any of the matters at issue in the appeals or indeed the leave application. Although far too numerous to list, the following passage, which is taken from the affidavit he filed in respect of the costs and contempt issues, is indicative of how Mr Lobb has consistently referred to Ms Ryan throughout the course of the appeals (and which given its unnecessary and gratuitous content will be redacted from published versions of this judgment):
I also believe that common sense needs to be applied where there is proven deception. Verena has been telling different lies to different parties, police, courts and members of our community. The only defence to this is to communicate and share her various deceptions and my responses so that the deception is uncovered, and justice prevails.
The court seems to have forgotten that the Lobb family of four chartered accountants had a good reputation prior to October 2016. We had all in fact been dealing with Verena and the "lying Ryans" conduct for over 20 years in the UK, Samoa, Australia and New Zealand. We have constantly faced difficult decisions needing cool reasoned heads to manage her behaviour and abusive actions towards us and our young children, spending habits, physical and verbal abuse, mental health and alcohol problems the tip of the iceberg really.
Speaking frankly, Verena was a depressed, abusive, drunk, who loved spending other people s money with no real connection with our children for most of our marriage. But I stuck to my vows and marriage commitment even when she attacked me physically, financially and mentally and she had affairs because that is how I was raised. There have been no divorces in my Anglican family previously.
Verenas and her family right from day one did not conduct themselves appropriately when we came home from London for a wedding. For example, Verenas family did not pay their agreed share of the wedding costs, no t even to this day. Verenas father contributed nothing and was excluded and abusive and Verenas mother did not cover the cost for her long list of thirsty guests. The Lobbs are just tired of dealing with Verena and want to move on but she is refusing to allow this preferring to continue to abusively control me and my family.
I believe Verena has fought hard to exclude Westpac, Lothbury Management Limited and my father from these proceedings because it is a fundamental to her attempt to defraud us. She has fought hard to keep my passports and documents. This has involved contempt of court and perjury by her and her
lawyers. I have fought to have them included and my records returned because of the trust deeds very clear rules and intentions. I still believe that including this information (evidence) is obvious and important and the only way for natural justice to prevail.
[41] Mr Lobb has been equally unrestrained in his comments with regard to Ms Cobcroft. For example:
With respect I think Ms Cobcroft and Verena are simply wrong about what my emails related to and exactly what proceedings they are applicable too because they have created so many proceedings and they are not on top of the facts and history of these matters.
I think this issue particularly applies to Ms Cobcroft who only recently joined up the quarrel of lawyers Verena employs. Much of what Ms Cobcroft assumes and believes is based on deception and hearsay. Ms Cobcroft to my mind only presents Verena in less than 20% of the wider issues and that is also problematic for her. For example, Ms Cobcroft appears to have little or no understanding of the DV proceedings, The Lothbury Trust, Lothbury Management, Police History, Harassment, Unpaid Occupation costs, IRD rulings etc, Lawyer for the Child History and Westpac. This is another reason for Ms Cobcroft’s warped perceptions, confused muddling, misleading presentations in court.
[42] There can be absolutely no doubt that the language used by Mr Lobb is entirely intemperate and pejorative, designed to hurt both Ms Ryan and Ms Cobcroft in direct violation of the orders made and numerous oral requests to Mr Lobb to mind his language. The use of such language is indeed antithetical to the orderly business of the Court which is designed to provide a forum to deal with extremely difficult issues with a certain degree of dispassion. As a self-represented litigant Mr Lobb may be forgiven for the odd oral lapse but to consistently use such language in the written material he has filed including, as noted, his submissions in evidence on the current applications, makes it clear that he has in a studied way deliberately used inappropriate language towards Ms Ryan and Ms Cobcroft in flagrant contravention of the orders made.
[43] I therefore have absolutely no doubt that on the second issue Mr Lobb is in contempt of this Court.
[44] As Mr Lobb has been found to be in contempt of Court the focus turns to what is an appropriate penalty.
[45] Penalties for failure to comply with court orders are assessed through application of a methodology similar to sentencing a criminal offender.20 Because of the need to uphold the rule of law, in fixing a penalty deterrence is an important consideration, as is the objective seriousness of the conduct, the personal culpability of the defendant, his or her means, and any personal or mitigating aggravating factors.21
[46] Over the last decade fines imposed for contempt have generally ranged between $5,000 and $25,000.22 Fines in the higher range, above $10,000, have tended to be reserved for cases involving serious and sustained breaches of injunction.
[47] In determining the appropriate penalty I am mindful that Ms Ryan does not seek Mr Lobb’s imprisonment and therefore the only realistic penalty is a fine. Likewise, I take into account that the contempt on the non-publication issue was essentially a technical breach of the order over a limited period of time. On the other hand, as has been set out, I am satisfied Mr Lobb’s breaches of the orders with regard to his descriptions of Ms Ryan and Ms Cobcroft were deliberate and ongoing, notwithstanding that his choice of language had no conceivable bearing on the merits of the appeal.
[48]Taking these various matters together I am satisfied that a total fine of
$7,500.00 is appropriate. This sum is to be paid into Court within 30 days, with 50 per cent of this sum to be paid out to Ms Ryan when it is received. Mr Lobb is encouraged to obtain legal advice with regard to the effect of this order so that he understands the consequences of non-payment.
Decision
[49]For the reasons set out above:
(a)Mr Lobb is to pay to Ms Ryan:
20 Solicitor General v Miss Alice [2007] 2 NZLR 783 (HC) at [88].
21 Solicitor-General v Krieger [2014] NZHC 172 at [59].
22 Young v Zhang [2017] NZCA 622, [2018] NZAR 207 at [59].
(i)costs of $46,605.00 together with disbursements of $4919.25, a total of $51,524.25 in respect of the dissolution appeal and the occupation, spousal maintenance and credit contract appeal; and
(ii)costs of $5,258.00 in respect of the leave judgment.
(iii)The sum of $2,390.00 paid into Court by Mr Lobb for security for costs on the appeals is to be paid to Ms Ryan.
(b)Mr Lobb’s conduct was in contempt of this Court. He is fined
$7,500.00 to be paid into Court within 30 days, with 50 percent of this sum to be paid out to Ms Ryan when received.
Powell J
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