[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 and that the appellant be committed to prison for a period of six months. They also awarded costs against the appellant.
[6] The appellant has remained outside New Zealand since the High Court orders were made, and so has not yet been arrested or committed to prison. He has appealed against the High Court orders and now seeks a stay pending the hearing of his appeal. He did not appear at the hearing of the application for a stay but filed written submissions and, after receipt of written submissions on behalf of the respondent, written submissions in reply. In his written submissions he indicated that he did not seek to be present or to be represented at the hearing of the stay application.
[7] The appellant said in his submissions in reply that he intends to return to New Zealand in mid-October 2008.
[8] Although the appellant sought a stay under r 565 of the High Court Rules, the applicable provision is r 12 of the Court of Appeal (Civil) Rules 2005, and we will treat the application as having been made pursuant to that rule.
[9] The application should have been directed to the High Court. This Court has made it clear that applications for stay pending an appeal to this Court ought, in the first instance, be directed to the High Court: Salem Ltd v Top End Homes Ltd (2005) 18 PRNZ 122. The appellant has not done this. However, as he is as litigant in person and the Court has now convened and considered the merits of his application, we propose to deal with the merits of the application.
[10] The appellant seeks a stay of the High Court judgment of 8 July 2008, but, as already indicated, that was not the judgment in which the actual order to arrest and commit the appellant to prison was made. Rather, that order was made in the Court’s subsequent judgment of 1 August 2008. We will therefore treat the application as seeking a stay of the orders made in both the 8 July 2008 and the 1 August 2008 judgments.
[11] The essence of the appellant’s case is that the decision to order his arrest and commital to prison for contempt raises important constitutional issues, and he should have the opportunity to bring those issues before this Court before the arrest and commital occurs. His concern is that, if this Court were to uphold his appeal, but that occurred after he had served a substantial period of imprisonment, a miscarriage of justice would occur.
[12] Counsel for the Solicitor-General, Mr Horsley, opposed the stay. He accepted that one of the points which the appellant wishes to raise in his appeal, concerning the refusal of the appellant’s application for trial by jury, is a novel point which is of some importance. He also accepted that, if the appeal did not come on for hearing promptly and the appellant was required to serve his term of imprisonment before it was heard, then the appeal might be rendered nugatory by the failure to grant a stay. However, he pointed out that the appellant remained outside the jurisdiction and had not therefore commenced the term of imprisonment imposed on him. He argued that the appellant’s behaviour in removing himself from the jurisdiction and failing to appear in the High Court on 1 August 2008 was such that an indulgence from the Court (in the form of a stay) was not warranted. He also argued that the matter would be better dealt with by way of a bail application, which the appellant could make if he returned to New Zealand, was arrested, and was committed to prison.
[13] We are concerned to avoid the appellant’s right of appeal being rendered nugatory by any delay in the substantive appeal being brought before this Court for hearing. We have therefore directed the Registrar to set down the appeal for hearing on Wednesday 29 October 2008 at 10.00 am (a half day fixture). That provides sufficient time for both parties to prepare for the appeal hearing, while at the same time ensuring that any period of imprisonment which the appellant will be required to undergo will be minimal assuming he returns to New Zealand as he foreshadowed in his submissions. We agree with Crown counsel that an application for bail, invoking the inherent jurisdiction of the High Court, is an option available to the appellant, though we give no indication of view as to its likely success.
[14] Having taken this step to avoid the appellant’s right of appeal being rendered nugatory, we see no reason to grant a stay of the High Court order. The High Court itself provided the appellant with an opportunity to avoid arrest and committal to prison, which he did not take. Rather he left the jurisdiction and did not appear when ordered to do so. His conduct in that regard does not make him a compelling candidate for an indulgence in the form of a stay.
[15] We therefore resolve the matter as follows:

(a) We direct the Registrar to set down the appellant’s substantive appeal for hearing on Wednesday 29 October 2008 at 10 am;

(b) We dismiss the application for a stay.

Solicitors:
Crown Law Office, Wellington for Respondent

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