Court:Elias CJ, Blanchard, McGrath, Wilson and Anderson JJ
Counsel:R M Lithgow QC and L A Scott for Appellant
M F Laracy and B C L Charmley for Respondent

Judgment:17 May 2010

JUDGMENT OF THE COURT

AThe appeal is allowed and the order made by the Court of Appeal is quashed. It is replaced by an order committing the appellant to prison for a term of a maximum of three 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 Korda Mentha v Siemer HC Auckland CIV-2005-404-1808, 23 December 2008 and if he also provides an undertaking to the High Court in a form approved by the High Court that he and Paragon Oil Services Ltd will continue to comply with that injunction for so long as it remains in force.
BMr Siemer is ordered to surrender to his bail at the High Court in Auckland no later than 4pm on 20 May 2010 unless by then he has complied with the injunction and provided that undertaking to the High Court in a form approved by it.

REASONS

Para No

Elias CJ and McGrath J [1]
Blanchard, Wilson and Anderson JJ [41]

ELIAS CJ and McGRATH J
(Given by McGrath J)
Introduction
[1]       Mr Siemer appeals against a judgment of the Court of Appeal[1] committing him to prison for contempt of court. The contempt lay in his continuing disobedience of an interim injunction issued by the High Court.[2] It required Mr Siemer not to publish, in any form, material containing allegations of criminal, unethical, or other improper conduct by a chartered accountant and his firm in relation to their administration of the receivership of a company associated with Mr Siemer.
[1]Siemer v Solicitor-General [2009] NZCA 62, [2009] 2 NZLR 556.
[2]Ferrier Hodgson v Siemer HC Auckland CIV-2005-404-1808, 5 May 2005.
[2]       Two earlier proceedings alleging contempt of court had been brought by the chartered accountant and his firm against Mr Siemer in relation to earlier breaches of the injunction. The first resulted in the imposition of a fine of $15,000 on Mr Siemer and an order for payment by him of solicitor and client costs to the other parties.[3] The second resulted in Mr Siemer being sentenced to six weeks’ imprisonment.[4] He has served that sentence.
[3]Ferrier Hodgson v Siemer HC Auckland CIV-2005-404-1808, 16 March 2006.
[4]Ferrier Hodgson v Siemer HC Auckland CIV-2005-404-1808, 13 July 2007.
[3]       The present proceeding was brought by the Solicitor-General as a result of subsequent continuing breaches of the injunction. The High Court held that the contempt was proved by the publication of prohibited…

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 [2010] NZSC 54
Case: [2010] NZSC 54
Decision Date: 17 May 2010

CaseChat Overview and Summary

Vincent Ross Siemer appeals against a judgment of the Court of Appeal committing him to prison for contempt of court. The contempt lay in his continuing disobedience of an interim injunction issued by the High Court. It required Mr Siemer not to publish, in any form, material containing allegations of criminal, unethical, or other improper conduct by a chartered accountant and his firm in relation to their administration of the receivership of a company associated with Mr Siemer. The issue in the appeal is whether Mr Siemer was wrongly deprived of the right under s 24(e) to trial by jury because of the summary procedure of trial by judges sitting alone in the High Court. The Supreme Court disagreed with the majority judgment of the Court of Appeal. It concluded that the right of the appellant to a jury trial had not been breached by the process applied by the High Court. The finite sentence imposed by the High Court was correct in principle and did not require modification by the Court of Appeal. As the Solicitor-General did not seek to vary the sentence imposed by the Court of Appeal, the appeal was dismissed.

Orders