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Siemer v Solicitor-General

Siemer v Solicitor-General

Case [2009] NZCA 62 9 March 2009

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA447/2008
[2009] NZCA 62
BETWEENVINCENT ROSS SIEMER

Appellant

ANDSOLICITOR-GENERAL

Respondent

Hearing:3 December 2008

Court:O'Regan, Robertson and Arnold JJ
Counsel:Appellant in person

B J Horsley and M F Laracy for Respondent
R E Harrison QC as Amicus Curiae

Judgment:9 March 2009 at 4 pm

JUDGMENT OF THE COURT

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.
CBail will continue, subject to the condition currently applying, namely that the appellant’s passports be held by the Registrar of the High Court at Auckland, until the day which falls 20 working days after the date of this judgment. However, if the appellant applies for leave to appeal to the Supreme Court against this judgment before the expiry of that period of 20 working days, bail will continue subject to the condition specified above until further order of the Supreme Court. Any application for variation of the condition of bail prior to the expiry of the 20 working day period referred to above may be made to this Court.
DWe make no award of costs.

REASONS OF THE COURT
(Given by O’Regan J)
Table of Contents
Para No

Introduction  [1]
Decisions under appeal  [6]
Background  [9]
Was the appellant entitled to elect trial by jury?  [21]
Historical background  [26]
Is there still a criminal/civil distinction?  [33]
Was the Solicitor-General’s application a civil proceeding?                  [59]
Did s 24(e) of the NZBORA apply to the proceedings?  [66]
Was the High Court committal order beyond jurisdiction?  [84]
Application of s 5 of the NZBORA  [97]
What would the jury do?  [98]
Conclusion: trial by jury  [99]
Was there double jeopardy?  [100]
Was there a breach of natural justice?  [106]
Result  [112]
Costs  [113]
Bail  [114]
Postscript  [116]
Introduction
[1]       The appellant appeals against a High Court order committing him to prison for a term of six months for contempt of court. The contempt resulted from the appellant’s breach of an interim injunction requiring him not to publish material defamatory of Mr Michael Stiassny and his firm, Korda Mentha. This Court granted the appellant bail pending the outcome of the present appeal.
[2]       The principal ground of appeal is that the full court of the…

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 [2009] NZCA 62
Case: [2009] NZCA 62
Decision Date: 9 March 2009

CaseChat Overview and Summary

Siemer v Solicitor-General was a New Zealand Court of Appeal case in which Vincent Ross Siemer appealed against a High Court order that committed him to prison for a term of six months for contempt of court. The contempt arose from Siemer’s breach of an interim injunction requiring him not to publish defamatory material about Michael Stiassny and his firm, Korda Mentha. The principal ground of appeal was that the High Court wrongly denied Siemer the opportunity to elect trial by jury. The Court of Appeal allowed the appeal in part, quashing the term of imprisonment for six months imposed by the High Court and replacing it with a term of imprisonment of a maximum of six months, subject to the proviso that the term of imprisonment will come to an immediate end if Siemer complies with the injunction and provides an undertaking to the Court that he and Paragon Services Limited will continue to comply with it.

Orders