Siemer v Solicitor-General - [2008] NZCA 369

IN THE COURT OF APPEAL OF NEW ZEALAND
CA447/2008
[2008] NZCA 369
BETWEENVINCENT ROSS SIEMER

Appellant

ANDSOLICITOR-GENERAL

Respondent

Hearing:9 September 2008

Court:O'Regan, Robertson and Arnold JJ
Counsel:No appearance for Appellant

B J Horsley and K Laurenson for Respondent

Judgment:16 September 2008 at 3 pm

JUDGMENT OF THE COURT

A The application for a stay is dismissed.
BWe direct the Registrar to set down the appellant’s substantive appeal for hearing on 29 October 2008 at 10 am.

REASONS OF THE COURT
(Given by O’Regan J)
[1]       This is an application for a stay of a High Court order committing the appellant to prison for contempt of court, pending the outcome of an appeal to this Court.
[2]       The background to the application is as follows. The Solicitor-General applied to the High Court for an order that the appellant be imprisoned indefinitely for contempt of court. In a judgment issued on 8 July 2008, a full court of the High Court (Chisholm and Gendall JJ) found that the appellant was in contempt of court. They found he had been knowingly involved in, and party to, publications of websites in contravention of an interim injunction and that his involvement constituted a serious and deliberate attempt to thwart and impede the proper administration of justice.
[3]       The High Court did not accept the Solicitor-General’s submission that indefinite imprisonment was the appropriate sanction. Instead, it ordered that a writ of arrest to bring the appellant before the Court on 1 August 2008 would issue, and that when he was brought before the Court on that date, he would be committed to prison for a period of six months. However, it also ordered that execution of the writ of arrest and the order committing the appellant to prison would be suspended and lie in court pending further order on 1 August 2008. This was to provide the appellant with an opportunity to bring to an end the breaches of the injunction and to give an undertaking not to breach the injunction in the future.
[4]       The appellant filed a memorandum in the High Court on 28 July 2008, to which the Court responded in a minute dated 31 July 2008. The Court’s minute records that the appellant’s memorandum contained an offer to take steps to permanently shut down the websites that contravened the injunction “in exchange for being allowed his day in Court this year on the defamation case, including the right to cross-examine Mr Stiassny [the party in whose favour the injunction was granted] before a jury”. Chisholm and Gendall JJ described this offer as “unacceptable” and made it clear that the appellant would be committed to prison on 1 August 2008 if he did not unconditionally close down the websites.
[5]       When the case was called at 10 am on 1 August 2008, the appellant did not appear. He had left New Zealand. Chisholm and Gendall JJ issued another judgment on that day in which they directed that the warrant of arrest be activated…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Siemer v Solicitor-General

Details

AGLC: Siemer v Solicitor-General [2008] NZCA 369
Case: [2008] NZCA 369
Decision Date: 16 September 2008

CaseChat Overview and Summary

In the case of Siemer v Solicitor-General, the appellant, Vincent Ross Siemer, filed an application for a stay of a High Court order committing him to prison for contempt of court, pending the outcome of an appeal to the New Zealand Court of Appeal. The High Court had found Siemer in contempt of court for his involvement in publishing websites in contravention of an interim injunction. The High Court ordered a writ of arrest and a six-month imprisonment for Siemer, which was suspended pending further order. Siemer did not appear before the High Court on the specified date, and subsequently, the High Court issued another judgment directing the warrant of arrest to be activated and committing Siemer to prison for six months.

The primary legal issue before the Court of Appeal was whether to grant a stay of the High Court order pending the outcome of Siemer's appeal. Siemer argued that the decision to order his arrest and imprisonment for contempt raised important constitutional issues and that a stay was necessary to prevent a miscarriage of justice if his appeal was successful after serving a substantial period of imprisonment. The Solicitor-General, on the other hand, opposed the stay, arguing that Siemer's behaviour in leaving the jurisdiction and failing to appear before the High Court did not warrant an indulgence in the form of a stay. The Court of Appeal was concerned to avoid rendering Siemer's right of appeal nugatory by any delay in the substantive appeal being brought before the Court for hearing. However, the Court also noted that Siemer had left the jurisdiction and did not appear before the High Court when ordered to do so, which made him less of a compelling candidate for a stay.

The Court of Appeal decided to direct the Registrar to set down Siemer's substantive appeal for hearing on 29 October 2008 at 10 am, providing sufficient time for both parties to prepare for the appeal hearing. The Court also dismissed the application for a stay, as Siemer had not taken the opportunity to avoid arrest and committal to prison, and his conduct did not make him a compelling candidate for an indulgence in the form of a stay. The Court left open the option of a bail application, invoking the inherent jurisdiction of the High Court, as an option available to Siemer if he returned to New Zealand, was arrested, and was committed to prison.

Orders