Solictor-General v Siemer HC Wellington CIV-2010-404-8559

[2011] NZHC 1093

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-404-8559

BETWEEN  THE SOLICITOR-GENERAL OF NEW ZEALAND

Applicant

ANDVINCENT ROSS SIEMER Respondent

Court:MacKenzie J Simon France J

Counsel:         M F Laracy and G J Robins for Applicant

T Ellis and G K Edgeler for Respondent

Judgment:      2 September 2011

ORAL JUDGMENT OF THE COURT DELIVERED BY MACKENZIE J

[1]      On  22 July 2011  counsel  for  Mr Siemer  filed  a  document  described  as “Application for arrest of judgment and/or dismissal for abuse of process”.  He had earlier signalled an intention to make that application.   The document does not follow the form appropriate for an interlocutory application in either criminal or civil proceedings, but essentially takes the form of submissions.  The matters raised are indicated by the headings.

(a)       What charge is Mr Siemer facing that he has been convicted of?

(b)      Was  the  conviction  civil  or  criminal  contempt  or  a  sui  generis

contempt?

(c)       As no information filed proceedings are a nullity. (d)  Other procedural requirements.

THE SOLICITOR-GENERAL OF NEW ZEALAND V SIEMER HC WN CIV-2010-404-8559 2 September

2011

(e)       What does s 24(a) to be understood of the New Zealand Bill of Rights

Act 1990 require?  and

(f)       Other procedural errors.

[2]      That application was set down for hearing today.   At the outset we had concerns as to the basis of the jurisdiction for the Court to consider that application. We had delivered the judgment on the Solicitor-General’s application for an order that  Mr Siemer  be  held  in  contempt  of  Court  by  our  judgment  delivered  on

1 July 2011.   Ordinarily a judgment once delivered must stand for better or worse subject, of course, to appeal.  That proposition was set out in Horowhenua County v Nash (No 2) by Wild CJ.[1]   He noted that there are three categories of cases in which a judgment not perfected may be recalled.  First, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance  and  high  authority.    Second,  where  counsel  have  failed  to  direct  the

Court’s  attention  to  a  legislative  provision  or  authoritative  decision  of  plain relevance, and thirdly, where for some other very special reason justice requires that the judgment be recalled.

[1] Horowhenua County v Nash (No 2) [1968] NZLR 632.

[3]      We consider that that general principle applies here.  Mr Ellis submits that an application for contempt is a form of action sui generis and we agree that that is the case.    However,  whatever  form  the  application  may  take,  the  result  of  it  is  a judgment of this Court to which that general proposition enunciated in Horowhenua County v Nash will apply.  So we consider that it is necessary to treat the judgment as standing and subject of course to a right of appeal and if it is wrong that can be corrected on appeal.   We see no reason to adopt in the case of an application for contempt any different approach.

[4]      One of the matters which is raised in support of the application and which relates to events which  have taken place since the application was filed is that Mr Siemer has deposed that he has made application to the registrar in Auckland for

an order varying the order made by Winkelmann J which was the subject of the

contempt proceedings.  The registrar has rejected that application.  Mr Ellis draws attention to the passage in our judgment of 4 July 2011 were we said:[2]

…  It is open to persons, including Mr Siemer, to apply to the Court for a variation of the order or its removal, but until that is successfully done, the order is binding.

[2] The Solicitor-General for New Zealand v Siemer HC Wellington CIV-2010-404-8559,

2 July 2011 at [41].

[5]      There appears, on the face of it, to be a difference between that view and the stance taken by the deputy registrar in Auckland.  Mr Ellis submits that we should intervene in that matter.   We see no basis upon which we could properly do so. Whether the statement which we made in para [41] which, as counsel for the Solicitor-General submits, is an obiter statement, is correct or not is a matter which can be tested by appeal.  We see nothing in this matter which takes this case into the exceptional category, where the judgment should be recalled in some way or further action taken on the judgment in this Court in these proceedings, to vary that ordinary position.

[6]      So far as the steps which have been taken in relation to the proceedings in which the order was made are concerned, any challenge to the deputy registrar’s direction is a matter for determination in those proceedings.  It would be wrong for this Court in this proceeding to take any steps or give any directions which are related to those separate proceedings.

[7]      Mr Ellis,   in   response   to   questions   from   the   Bench,   summarised   his applications, or the relief that he sought, in respect of this application, as being that the applications to be heard were:

(a)      An application to hold these proceedings to be a nullity.  Dealing with that application specifically, we regard that as being covered by the conclusion we have reached that the appropriate remedy for any challenge to the judgment of 4 July 2011 is an appeal.  Consequently, the proceedings on which it is founded are now within the appropriate

purview of an appeal rather than a further application to this Court

(b)The second application is based on a submission that relief should involve an application to set down for hearing the question whether the orders of Winkelmann J have been properly made.  Again we see no basis upon which this Court could intervene by way of review of the orders which have been made in this proceeding or in any other proceeding;  and

(c)      The third matter raised was whether an application can be made for the suppression order to be revoked. As we have indicated, that is not a matter which is before this Court or on which we should intervene.

[8]      The application itself is couched as an application for arrest of judgment.  We see  no  significance,  in  that  titling  of  the  application,  to  the  application  of  the principle of Horowhenua County v Nash.   However it is titled, the effect of the application is to invite the Court to reopen issues which must be regarded as finally decided by our judgment on 4 July 2011 and the appropriate remedy in respect of those matters is by way of appeal.

[9]      Accordingly the application for arrest of judgment and/or dismissal for abuse of process is dismissed.

“A D MacKenzie J”  “Simon France J”

Solicitors:         Crown Law Office, Wellington for Applicant

T Ellis, Barrister, Wellington, for Respondent