Solicitor-General v Siemer HC Auckland CIV 2009-404-6747
[2010] NZHC 177
•26 February 2010
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV-2009-404-006747
IN THE MATTER OF an application by Her Majesty's Solicitor-
General in respect of alleged contempt of court
BETWEEN THE SOLICITOR-GENERAL FOR NEW ZEALAND
Applicant
ANDVINCENT ROSS SIEMER Respondent
Hearing: By memoranda
Appearances: Ms M Laracy for Applicant
Mr Siemer in person
Judgment: 26 February 2010 at 12 noon
JUDGMENT OF LANG J
[re Costs]
This judgment was delivered by me on 26 February 2010 at 12 noon, pursuant to Rule
11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors:
Crown Law, Wellington
Copy to:Mr V Siemer, Auckland
SOLICITOR-GENERAL FOR NEW ZEALAND V VINCENT ROSS SIEMER HC AK CIV-2009-404-006747
26 February 2010
[1] In this proceeding the Solicitor-General sought an order that Mr Siemer be committed to prison because he remained in contempt of specific directions made by Winkelmann J in R v Bailey HC AK CRI 2007-085-7842. Those orders were addressed specifically to Mr Siemer and required him to remove from the internet sites and an article that revealed details about the outcome of pre-trial hearings that Winkelmann J had conducted in the Bailey proceeding.
[2] The Solicitor-General’s application was set down for hearing before me on Monday 16 November 2009. When the case was called, counsel for the Solicitor- General advised me that there had been a number of developments over the previous few days. These included discussions between the Solicitor-General’s office and Mr Siemer that had resulted in Mr Siemer deleting several portions of the article that he had placed on his websites regarding the Bailey pre-trial matters. Counsel for the Solicitor-General advised me that the Solicitor-General took the view that the information on the websites no longer contravened the orders that Winkelmann J had made. For that reason, and provided Mr Siemer was prepared to sign an undertaking not to breach the suppression orders in the future, the Solicitor-General would seek leave to discontinue the proceeding.
[3] I then adjourned the hearing briefly so that I could consider the article in its edited form. Having done so, I held residual concerns that the deletions that Mr Siemer had made to the article were not sufficient to prevent the article from remaining in breach of the suppression orders that Winkelmann J had made. When the hearing resumed, I raised my concerns with counsel for the Solicitor-General. She advised me in response that the Solicitor-General was satisfied that the article no longer contravened the orders that Winkelmann J had made. She also confirmed that Mr Siemer had signed a written undertaking not to breach the suppression orders in the future. This was in the following terms:
I, Vincent Ross [Siemer], undertake:
1.That I understand the scope and meaning of the suppression order of Her Honour Winkelmann J (as set out in the re-issued decision of Her Honour dated 7 October 2009 in the matter of R V Bailey and others (CRI 2007-085-007842 and others)), as agreed by the Solicitor-
General in discontinuing proceedings today based on the current form of the article; and
2.That I will not breach the order referred to above, and that I will not be a party to a breach, in any form.
[Vince Siemer] 16/11/09
[4] The court has a vital interest in ensuring that its orders are obeyed. It was for that reason that I raised the issue of the adequacy of the deletions with counsel for the Solicitor-General. Once she confirmed the Solicitor-General’s satisfaction with the situation, however, I did not take the matter further. I granted the Solicitor- General leave to discontinue the proceeding and reserved the issue of costs. That is the issue that I am now required to resolve.
[5] The Solicitor-General submits that he is entitled to an award of costs because
of the circumstances that led to the proceeding being issued and the manner in which
it came to be resolved. Mr Siemer disagrees. He contends that the Solicitor-General acted improperly in bringing the proceeding, and that there was no legal basis for it.
He also submits that the Solicitor-General was the party who elected not to continue the proceeding. For that reason, and in accordance with the usual principles that the Court applies in such cases, Mr Siemer argues that he ought to be entitled to recover from the Solicitor-General the disbursements that he has incurred in defending the application.
General principles
[6] As counsel for the Solicitor-General points out, the fundamental rule governing costs is that they are at the discretion of the Court: r 14.1. There is a presumption, however, that a party who discontinues a proceeding will pay costs to the other party up to the discontinuance: r 15.23. That presumption may be displaced if the circumstances render a different outcome just and equitable: Coromandel Heritage Protection Society Inc. v Thames Coromandel District Council HC HM CIV 2007-419-1649 11 February 2008 Stevens J.
[7] Where a discontinuing plaintiff has achieved all that it set out to achieve in issuing the proceeding the presumption may be displaced. In those circumstances
the plaintiff may be entitled to costs as if it was a successful party: Carmel College
Auckland Ltd v North Shore City Council HC AK CIV 2007-404-5894 Venning J.
[8] Generally speaking, however, the Court will not speculate on the merits of a case that it has never heard. The merits of a case will only influence the Court’s decision in relation to costs upon a discontinuance in exceptional cases where the merits are clear.
[9] In order to evaluate the arguments advanced by both parties it is necessary to set out the background to this proceeding in greater detail.
The background to the proceeding
[10] The narrative begins on 8 September 2009, when Winkelmann J released her judgment dealing with pre-trial issues in the Bailey case. Nine days later, on 17
September 2009, Mr Siemer published an article on both and in which he made reference to several matters referred to in the judgment. He did so notwithstanding the fact that the Judge had directed that the judgment was to be suppressed from publication to protect the position of the accused in the event that the matter proceeded to trial.
[11] On 18 September 2009 the Solicitor-General wrote to Mr Siemer requiring him to remove the article from the websites. In that letter the Solicitor-General indicated that he would consider issuing contempt proceedings if Mr Siemer did not act immediately.
[12] On 23 September 2009 Mr Siemer wrote to the Solicitor-General and said:
Dear Mr Collins,
I am in receipt your letter dated 18 September 2009 (your ref: SOL115/1823).
Please refer me to the law which forbids publishing public court rulings as you have demanded.
I do recognise that Justice Winkelmann ordered her public ruling suppressed, but I consider under these circumstances there is no lawful basis for the Judge to contravene her very public duty to open and transparent justice in
such a manner. This is particular[ly] so given the very broad implications on
so many accuseds in this case, as well as the tremendous public importance and interest. Add to this the enormous ongoing financial cost of the court
proceedings themselves to the New Zealand taxpayers.
Please advise:
1) Why the New Zealand public should not be informed as to the Judge’s conclusions regarding the appropriateness of police and judicial actions in the massive ‘terrorist’ raids and arrests which captivated the nation two years ago?
2) What law prevents the New Zealand public from being duly informed?
3) What law prevents me from disseminating this important information?
In conclusion, I am no legal scholar but it seems s14 of the Bill of Rights Act
1990 clearly permits me sharing this information with the public. Moreover,
I can think of no conceivable reason why this information should not be publicly shared in an egalitarian society where transparency regarding the
actions of public officials is supposedly valued. However, I am open to your
attempts to convince me otherwise with sound legal grounds.
Sincerely,
Vince Siemer
…
[13] The Solicitor-General then applied to Winkelmann J for an order directing Mr Siemer to remove from all websites over which he had any control any commentary or description of the judgment that she had issued in Bailey. Mr Siemer filed a notice of opposition to the Solicitor-General’s application but did not appear at the hearing of the application. He explained in his notice of opposition that he would be away from New Zealand until 19 October 2009, and sought an adjournment of the hearing so that he could participate.
[14] On 9 October 2009 Winkelmann J declined to adjourn the application and instead determined it in Mr Siemer’s absence: Solicitor-General v Siemer High Court Auckland CIV-2009-404-6243, 9 October 2009. In granting the orders that the Solicitor-General sought Her Honour said:
[16] I considered Mr Siemer’s request that this application be adjourned
to enable him to attend the hearing but I did not grant the adjournment. Mr
Siemer is in breach of the existing suppression order. He is obliged to comply with that order whether or not I make the order sought by the Solicitor-General. Moreover there is some urgency in the disposition of this application. For the reasons discussed above it is important that Mr Siemer’s publication of the material be removed from the sites and as soon as possible.
[17] I therefore make an order directing the respondent, Vince Ross Siemer, to remove from all websites over which he has any control, all extracts from, commentary on and description of the judgment of this Court made on 8 September 2009. He has 48 hours from the communication to him of this order to bring himself into compliance with it. Mr Siemer has asked that communication with him occur through his email address. I direct that service of the order on him be effected by way of email. Service is deemed to be effected 24 hours after the email is sent to him.
[15] I interpolate to say that the Solicitor-General also seeks costs in the proceeding that Winkelmann J determined. The Registry is to refer CIV-2009-404-
6423 to Winkelmann J, together with copies of the memoranda that have been filed
in relation to the issue of costs in this proceeding. The issue of costs in CIV-2009-
404-6423 is then to be determined by Winkelmann J.
[16] The Solicitor-General duly served the orders on Mr Siemer by way of e-mail, but Mr Siemer failed to remove the articles from the websites. As a result, the Solicitor-General filed the present proceeding on 14 October 2009.
[17] The proceeding was called before Keane J on 30 October 2009, when preliminary applications by Mr Siemer were due to be heard. Mr Siemer did not attend that hearing but advised the Court in a memorandum that the matter was in the hands of his lawyer. A substantive hearing date of 10 November 2009 was fixed.
[18] On 10 November 2009 neither Mr Siemer nor his counsel appeared when the proceeding was called. A warrant for Mr Siemer’s arrest was issued and he was brought to Court. Later that day his counsel, Mr Orlov, filed a memorandum indicating that he would accept instructions to act on behalf of Mr Siemer if the proceeding was adjourned to 16 November 2009. On that basis the proceeding was allocated a firm fixture date on 16 November 2009.
[19] On 11 November 2009 Mr Siemer deleted some material from the article and advised the Solicitor-General that he had done so. The following day Crown counsel advised Mr Siemer that the Solicitor-General did not consider that the changes went
far enough to prevent the article from contravening the orders that Winkelmann J had made. Over the next three days Mr Siemer made further deletions from the article. These were ultimately sufficient to satisfy the Solicitor-General that the article no longer breached the suppression orders that Winkelmann J had made. It was in that context that the Solicitor-General sought and obtained leave to discontinue the proceeding.
To whom should costs be awarded?
[20] I have no doubt that the Solicitor-General was justified in issuing the proceeding. By the time he did so Winkelmann J had issued her supplementary judgment. Mr Siemer was therefore clearly on notice that any failure to remove the offending material from the website would amount to defiance of the court’s orders. His continued defiance of the Court’s orders left the Solicitor-General with little option but to issue the present proceeding.
[21] The Solicitor-General only sought leave to discontinue the proceeding after Mr Siemer had removed the offending portions of the article from the websites. That occurred within the days immediately leading up to the hearing. Once that occurred there was no further point to the proceeding continuing. The Solicitor-General had always made it clear that his objective was to ensure that the material was removed from the websites.
[22] I take the view this is an exceptional case in which the Court can have regard
to the merits of the case in determining the issue of costs. The merits of the present case undoubtedly favoured the Solicitor-General. The Solicitor-General also achieved all that he set out to do in issuing the proceeding. For that reason it is appropriate that an award of costs be made in his favour.
Should the Court award increased or indemnity costs?
[23] The court has the power to order increased or indemnity costs under r 14.6(3)
and (4)(a) and (b). They provide as follows:
(3) The court may order a party to pay increased costs if—
(a)the nature of the proceeding or the step in it is such that the time required by the party claiming costs would substantially exceed the time allocated under band C; or
(b)the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—
(i) failing to comply with these rules or with a direction of the court; or
(ii) taking or pursuing an unnecessary step or an argument that lacks merit; or
(iii) failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument; or
(iv) failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or other similar requirement under these rules;
or
(v) failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under rule 14.10 or some other offer to settle or dispose of the proceeding; or
(c) the proceeding is of general importance to persons other than just the parties and it was reasonably necessary for the party claiming costs to bring it or participate in it in the interests of those affected; or
(d)some other reason exists which justifies the court making an order for increased costs despite the principle that the determination of costs should be predictable and expeditious.
(4) The court may order a party to pay indemnity costs if—
(a)the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding
or a step in a proceeding; or
(b)the party has ignored or disobeyed an order or direction of the court or breached an undertaking given to the court or another party; or
...
[24] I have no doubt that the manner in which Mr Siemer has conducted himself would warrant an order that he pay increased costs. He clearly failed to comply with directions of the court in terms of r 14.6(3)(b)(i) and his opposition to the application lacked merit in terms of r 14.6(3)(b)(ii). In addition, the proceeding was of general importance to the accused in the Bailey case and it was also important generally in terms of the administration of criminal justice.
[25] I do not, however, consider that an award of increased costs would adequately deal with the situation that has arisen in the present case. Mr Siemer has openly defied the orders of the court in the knowledge that the Solicitor-General would inevitably respond by bringing contempt proceedings. The stand that he took in relation to the validity of the court’s orders was untenable. In those circumstances
I am satisfied that indemnity costs are justified under r 14.6(4)(a) and (b).
[26] Counsel for the Solicitor-General has submitted that indemnity costs of
$38,281.40 should be awarded together with disbursements of $898.68 and travel expenses totalling $3,310.87. Presumably the amount claimed for counsel’s time is recorded in time records that the Solicitor-General has kept. Before making an award of costs I direct that the Solicitor-General is to file a further memorandum setting out the basis on which the claim for time spent has been calculated. That memorandum is to be filed and served within seven days. Mr Siemer is then to respond within seven days thereafter. I will then make a final determination based on the material filed.
Mr Siemer’s request for a transcript of the hearing
[27] Following the hearing before me, Mr Siemer filed a memorandum in which
he sought a transcript of the hearing. Given that this matter is now at an end, I do not consider that it is appropriate to put the state to the further expense of preparing a
transcript. I therefore decline to direct that one be prepared.
Lang J
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