Siemer v Chief Justice of the New Zealand Supreme Court HC Auckland CIV 2011-404-1183
[2011] NZHC 1388
•30 August 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2011-404-1183
BETWEEN VINCENT ROSS SIEMER Plaintiff
ANDCHIEF JUSTICE SIAN ELIAS OF THE NEW ZEALAND SUPREME COURT First Defendant
ANDTHE ATTORNEY-GENERAL OF NEW ZEALAND
Second Defendant
Hearing: 16 August 2011
Counsel: V Siemer, Plaintiff in person
A Powell for Respondent
Judgment: 30 August 2011
JUDGMENT OF HEATH J
This judgment was delivered by me on 30 August 2011 at 2.00pm pursuant to Rule 11.5 of the High
Court Rules
Registrar/Deputy Registrar
Solicitors:
Crown Law, Wellington
Copy to:V R Siemer, Plaintiff
SIEMER V CHIEF JUSTICE SIAN ELIAS OF THE NEW ZEALAND SUPREME COURT HC AK CIV 2011-
404-1183 30 August 2011
Introduction
[1] Mr Siemer seeks damages and expenses against the Chief Justice of New Zealand (on behalf of herself and other members of the Supreme Court) and the Attorney-General, on a claim that the Supreme Court[1] wrongly imposed a sentence of imprisonment upon him in breach of s 27(1) of the New Zealand Bill of Rights Act 1990 (the Bill of Rights). That provision requires all judicial officers to comply with the principles of natural justice.
[1] Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767.
[2] There are two aspects to Mr Siemer’s complaint. The first is that the sentence was imposed on “unsworn submissions”. The second is that he was not given an adequate opportunity to be heard before the sentence of imprisonment was imposed.
[3] The Chief Justice and the Attorney apply to strike out the claim. In their application, two grounds were advanced: judicial immunity[2] and abuse of process of the Court. An abuse of process is said to arise out of a claim that constitutes a collateral attack on the Supreme Court’s judgment.[3] Mr Siemer opposes the strike out application, submitting that the issue is not one that has been determined by the Supreme Court.
[2] Nakhla v McCarthy [1978] 1 NZLR 291 (CA).
[3] Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL).
[4] Although the issue of judicial immunity was raised in the strike-out application, it was not pursued in written submissions. As Mr Siemer had not been given the opportunity to respond to written submissions on the immunity point, I ruled that I would determine the application on the basis of the abuse of process allegation alone.
[5] Since hearing this application, I have become aware of Woodhouse J’s
judgment in Siemer v Chief Justice of the New Zealand Supreme Court.[4] Collateral attack was also in issue in respect of that proceeding, in which Mr Siemer’s claims
[4] Siemer v Chief Justice of the New Zealand Supreme Court HC Auckland CIV-2009-404-8435, 22 August 2011 (Woodhouse J).
were struck out. The present application raises a different issue. I have considered it independently of Woodhouse J’s judgment.
Background
[6] In May 2005, the High Court issued an interim injunction prohibiting Mr Siemer from publishing, in any form, material containing allegations of criminal, unethical or improper conduct by Mr Stiassny, a chartered accountant who had acted as receiver of a company associated with Mr Siemer.[5] In 2006 and 2007, proceedings were brought by Mr Stiassny and his firm alleging that Mr Siemer had breached the terms of the injunction. On both occasions the contempt was found to
have been proved. In 2006, the Court imposed a fine of $15,000 and required Mr Siemer to pay the applicants’ solicitor and client costs.[6] In 2007, Mr Siemer was sentenced to six weeks imprisonment.[7]
[5] Ferrier Hodgson v Siemer HC Auckland CIV-2005-404-1808, 5 May 2005; aff’d Siemer v Ferrirer Hodgson CA87/05, 13 December 2005.
[6] Ferrier Hodgson v Siemer HC Auckland CIV-2005-404-1808, 16 March 2006; aff ’d Siemer vStiassny [2007] NZCA 117, [2008] 1 NZLR 150.
[7] Ferrier Hodgson v Siemer HC Auckland CIV-2005-404-1808, 13 July 2007.
[7] After Mr Siemer had served his sentence, further breaches of the injunction were alleged. As a result, the Solicitor-General initiated contempt proceedings, alleging publication of prohibited allegations on a website that Mr Siemer controlled.
[8] A Full Court of this Court found that the Solicitor-General’s allegations were proved.[8] A warrant to arrest Mr Siemer was issued and a term of imprisonment of six months imposed. The Court said:
[8] Solicitor-General v Siemer HC Auckland CIV-2008-404-472, 8 July 2008 (Chisholm and Gendall JJ).
[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.
...
[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].
[9] Mr Siemer appealed against the High Court’s decision. Bail was granted pending appeal. The substantive appeal point turned on the distinction between civil and criminal contempt and whether, in the case of an allegation of criminal contempt, a right to trial by jury existed, by virtue of s 24(e) of the Bill of Rights. In allowing the appeal, following R v Cohn,[9] the Court of Appeal held that while there was jurisdiction for the High Court to hear the Solicitor-General’s application, given the nature of the sanction sought, the High Court exceeded its powers by imposing a penalty in excess of three months imprisonment. Such a sanction, the Court of
Appeal said, could only be imposed if the alleged contemnor had been offered trial by jury or if coupled with a proviso stating that the sentence would come to an end if compliance were to occur before that time expired.[10]
[9] R v Cohn (1984) 13 DLR (4th) 680 (Ont CA).
[10] Siemer v Solicitor-General [2009] NZCA 6, [2009] 2 NZLR 556 at [95].
[10] In reconsidering penalty, based on the availability of a maximum term of three months imprisonment when trial by jury was not offered, the Court of Appeal determined that a finite term of imprisonment of six months would respond adequately to the contempt.[11] The Court did so on the proviso that the term of imprisonment would come to an immediate end if Mr Siemer complied with the injunction and undertook to the Court that he and an associated company would
continue to comply with it. O’Regan J, for the Court, said: “Thus, [Mr Siemer] will have the keys of the prison in his pocket”.[12]
[11] Ibid, at [96].
[12] Ibid.
[11] The formal orders of the Court of Appeal are recorded on the cover sheet to the unreported version of the judgment. They were:
A The appeal is allowed in part.
BThe High Court order committing the appellant to prison for a period of six months is quashed and replaced by an order committing the appellant to prison for a term of a maximum of six months, subject to the proviso that the term of imprisonment will come to an immediate end if the appellant complies with the injunction issued on 5 May 2005 (and made permanent on 23 December 2008) by the High Court at Auckland in the proceeding Ferrier Hodgson & Stiassny v Siemer HC AK CIV 2005-404-1808 and provides an undertaking to the High Court in a form approved by the High Court that he and Paragon Services Limited will continue to comply with that injunction for so long as it remains in force.
[12] Order B put in issue the substituted penalty imposed by the Court of Appeal. The formal orders assume significance because of the way the Supreme Court, when granting leave to appeal, stated the approved ground for appeal. The Supreme Court,
in its leave judgment, said:[13]
[13] Siemer v Solicitor-General [2009] NZSC 86.
A Leave to appeal is granted. B
The approved ground is whether the Court of Appeal erred in making orders A and B of its judgment of 9 March 2009.
[13] By a majority,[14] the Supreme Court allowed Mr Siemer’s appeal.
Unanimously, it held that if a penal consequence were in prospect at trial and the term of imprisonment actually available exceeded three months, the rights conferred by ss 24 and 25 of the Bill of Rights,[15] including the right to elect trial by jury, were triggered.[16] Having said that, the Court concluded that trial by jury was not available
for a contempt of court that was dealt with by summary process.[17]
[14] Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 (Blanchard, Wilson and Anderson JJ; Elias CJ and McGrath J dissenting).
[15] Section 24 sets out the rights of persons charged with offences, while s 25 identifies the “minimum rights” of an accused in the determination of the charges. Section 24(e) deals with the right to elect trial by jury where a potential sentence exceeds three months imprisonment.
[16] Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [14]-[16] (Elias CJ and McGrath J) and [54]-[57] (Blanchard, Wilson and Anderson JJ).
[17] Ibid, at [10] (Elias CJ and McGrath J) and [60], [62], [63] and [66] (Blanchard, Wilson and Anderson JJ).
[14] The Supreme Court’s decision had the effect of overturning the Court of Appeal’s orders. A majority of the Court (Blanchard, Wilson and Anderson JJ) held that both the High Court and the Court of Appeal had erred in imposing a sentence in
excess of three months. However, they considered that the error could be corrected
by the imposition of a punishment consistent with the requirements of s 24(e) of the
Bill of Rights. The majority said:
[68] It follows from the conclusions we have already expressed that both the courts below exceeded their powers in imposing sentences which exceeded three months. Counsel for the appellant argued that, if this Court were of that view, it must treat the proceedings below as a nullity, with the result that the case would have to begin again in the High Court. We do not agree. Subject to a question belatedly raised about whether there has in fact been any contempt proved against Mr Siemer, to which we will turn in a moment, we consider that it must be open to this Court simply to correct a sentencing error made below (an excessive sentence) by imposing a punishment which is consistent with the requirements of s 24(e). That is what the Court of Appeal of Ontario in R v Cohn suggested should be done if, in that jurisdiction, a judge presiding at a contempt hearing were to impose a sentence of more than five years. As that Court said, it would be the sentence that was unlawful and not the summary proceeding.
A contempt was committed
[69] We must first, however, respond to an attempt made in this Court by counsel for Mr Siemer with a view to persuading us that the High Court had erred in finding that Mr Siemer was in contempt of court. It is not clear whether this submission was advanced before the Court of Appeal. However that may be, the High Court was plainly right. The extracts from the websites which constituted the material that the Solicitor-General had said in the High Court was in breach of the injunction were provided to us in the written submissions of Ms Laracy, counsel for the Solicitor-General. Mr Lithgow QC did not seek to dispute that it was those passages that the contempt order made by the High Court on 8 July 2008 was related to nor that they continued to appear on the websites. It is quite obvious that the High Court was correct to conclude that they constituted a breach. On the plain meaning of the words in the passages, the argument that there was no breach could not possibly succeed. We also reject Mr Lithgow’s submission that the High Court had later indicated that its order encompassed the whole of the content of the websites. The High Court’s decision had clearly related to the passages only. The suspension of its order was intended to enable compliance with the injunction by removal of the particular material from the websites. The Court’s later reference in a Minute dated 31 July 2008 to closing down the websites is not fairly to be understood as expanding that requirement. The Minute in fact refers back to the terms of the Court’s judgment and is obviously directed to the paragraph in the judgment in which the Court said that the writ of arrest and the order committing Mr Siemer to prison would be suspended “to allow Mr Siemer a final opportunity to arrange for the removal of the offending material from the websites”.
The proper sentence
[70] We have given thought to whether the matter should now be returned to the Court of Appeal for it to reconsider the appropriate sentence. We believe, however, that even allowing for the fact that the Court did not appreciate that it was imposing a sentence which was above the maximum, and therefore did not put its mind to the question of whether the case
demanded a sentence at or near the maximum actually available, it is very plain the Court considered the matter to be very serious (it was not Mr Siemer’s first contempt) and would, if it had been conscious of the limit on its powers, have chosen a three-month term. It was of course making the term subject to a condition which would give Mr Siemer the keys to his own prison. Anything less than three months might, in the case of someone who had already served time for breach of another court order, have been unlikely to produce compliance, particularly when the effect of s 86 of the Parole Act is factored in. (my emphasis; footnotes omitted)
[15] After delivery of the Supreme Court’s substantive judgment, Mr Siemer applied (through counsel) for recall of that judgment on the grounds that (among other things) the Supreme Court had relied on a “unrepresentative” version of the publication and had not heard from his counsel in determining a substituted sentence. This application was dismissed in a Minute, issued on 11 June 2010. The unanimous view of the five members of the Court who sat on the substantive appeal was recorded as follows:
[1] The appellant’s application to recall this Court’s judgment [2010] NZSC 54 raises no matter which has not previously been considered in relation to the appeal and is dismissed.
Analysis
[16] The application is based firmly on the doctrine of abuse of process summarised in Hunter v Chief Constable of the West Midlands Police.[18] In that case, six men who had been charged and convicted of killing 21 people and injuring 161 others in bomb explosions in two public houses in Birmingham issued civil proceedings claiming damages for physical assaults allegedly committed on them by police officers in the course of their interrogation. Those allegations had previously been rejected by the Judge presiding at their criminal trial, after a voir dire. The trial Judge had ruled that evidence of confessions (alleged to have been induced by
physical violence and threats) was admissible. The question was whether the statement of claim should be struck out as an abuse of process, on the grounds that it amounted to a collateral attack on the earlier ruling at trial.
[18] Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL).
[17] Giving the leading opinion in the House of Lords (with whom Lord Russell of Killowen, Lord Keith of Kinkel, Lord Roskill and Lord Brandon of Oakbrook agreed), Lord Diplock stated the relevant principle as follows:[19]
[19] Ibid, at 541–542.
The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.
...
My Lords, collateral attack upon a final decision of a court of competent jurisdiction may take a variety of forms. It is not surprising that no reported case is to be found in which the facts present a precise parallel with those of the instant case. But the principle applicable is, in my view, simply and clearly stated in those passages from the judgment of A L Smith LJ in Stephenson v Garnett [1898] 1 QB 677, 680–681 and the speech of Lord Halsbury LC in Reichel v Magrath (1889) 14 App Cas 665, 668 which are cited by Goff LJ in his judgment in the instant case. I need only repeat an extract from the passage which he cites from the judgment of A L Smith LJ:
“... the court ought to be slow to strike out a statement of claim or defence, and to dismiss an action as frivolous and vexatious, yet it ought to do so when, as here, it has been shewn that the identical question sought to be raised has been already decided by a competent court”.
The passage from Lord Halsbury’s speech deserves repetition here in full:
“... I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again”.
....
[18] Mr Siemer’s position is that the issue arising in the present proceeding differs from that considered by the Supreme Court in the contempt proceeding. Mr Siemer’s complaint is not directed to the substantive decision made by the Supreme Court but to an issue of process whereby he alleges that he was denied the right to be heard on the particular issue, resulting in the Court relying improperly on “unsworn evidence”, contained in written submissions of counsel for the Solicitor- General. As he puts it:
... the claim does not ask for a court finding that [the Supreme Court’s decision] was incorrect but, rather, that the process of finding a man guilty beyond reasonable doubt on unsworn submissions is a breach of natural justice. ...
[19] The narrow issue for my consideration is whether the distinction drawn by Mr Siemer is sustainable, on the application of the abuse of process doctrine enunciated in Hunter v Chief Constable of the West Midlands Police.
[20] In my view, the claim should be struck out in its entirety. While it does not seek to set aside the orders made by the Supreme Court, including the substituted term of imprisonment, it does challenge the basis on which the Court determined that the substituted penalty was appropriate. The Supreme Court’s reasons make it clear that an opportunity was given for submissions to be made on the underlying basis for the contempt order but no dispute was raised.[20]
[20] Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [68] and [69], set out at para
[14] above.
[21] In dealing with this issue, it is necessary to focus on the reasons for judgment given by the majority, as their view represents that of the Court. The majority recognised that an issue had been raised about whether a contempt had been proved, albeit belatedly. Nevertheless, in the absence of any dispute being raised by senior counsel for Mr Siemer, the majority considered that the passages set out in the submissions of counsel for the Solicitor-General properly reflected the basis on which the contempt had been proved in the High Court.
[22] From the majority’s reasons, it is clear that senior counsel for Mr Siemer had the opportunity to address the Court on the correctness of the extracts cited on behalf of the Solicitor-General. The absence of any suggestion by counsel that the extracts did not accurately convey what was on the website at material times means that the Supreme Court was entitled to rely on the document (whether sworn or not) to reach its conclusions. Further, the provision of an adequate opportunity to address the Court on the correctness of the extracts meant that there was no breach of the principles of natural justice. A breach, in circumstances such as this, could only arise if no opportunity to be heard was given. There is no breach if an opportunity were given but advantage was not taken of it.
[23] To go behind the Supreme Court’s reasons would amount to a collateral attack on its decision, in the sense described in Hunter.[21] Similarly, the fact that the Supreme Court regarded the issues raised on the recall application as having been dealt with during the appeal itself does not afford any ground for complaint. It was for the Supreme Court to make its own judgment on that issue and this Court ought not to entertain a collateral attack upon its reasons.
[21] Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL) at 541–542, set out at para [17] above.
[24] Mr Siemer raised a subsidiary point about the mode by which the recall judgment was given. He sought to suggest that dismissal of the recall application through a “Minute”, rather than a judgment, was somehow inappropriate. I understood him to suggest that the Minute may have been issued to avoid the decision being publicly available. There is no merit in this point and it could not, in any event, affect the outcome on the collateral attack issue. In the absence of a justifiable suppression order, it is open for a Court to deal with an application through any form of document that is capable of being made publicly available. There was no suppression order.
Result
[25] For those reasons, the application to strike out the Statement of Claim is granted. Costs are awarded in favour of the Chief Justice and the Attorney-General
on a 2B basis, together with reasonable disbursements.
P R Heath J
Delivered at 2.00pm on 30 August 2011
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