Siemer v Legal Complaints Review Officer HC Auckland CIV-2010-404-986 [2011] NZHC 156 (25 February 2011)

Last Updated: 27 May 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV-2010-404-986}

BETWEEN VINCENT ROSS SIEMER Appellant

AND LEGAL COMPLAINTS REVIEW OFFICER

First Respondent

AND D B COLLINS QC Second Respondent

Hearing: 2 February 2011

Appearances: Appellant in person

N Whittington for first respondent (granted leave to withdraw) A M Powell for second respondent

Judgment: 25 February 2011

_{JUDGMENT OF ALLAN J}

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 11 am on Friday 25 February 2011

Solicitors/parties :

V Siemer, 27 Clansman Tce, Gulf Harbour, Auckland

_{Crown Law, Wellington} [e-mail]

VINCENT ROSS SIEMER V LEGAL COMPLAINTS REVIEW OFFICER HC AK CIV-2010-404-986 25

February 2011

[1] In a decision given on 3 February 2010, the Legal Complaints Review Officer (LCRO) declined Mr Siemer‘s application for review of an earlier decision by a Standards Committee appointed by the New Zealand Law Society (NZLS). Mr Siemer‘s complaint concerns the professional behaviour of Dr D B Collins QC, the Solicitor-General. He is the second respondent in this proceeding.

[2] Mr Siemer is dissatisfied with the LCRO‘s decision which, he contends, is both misconceived and the product of predetermination. In this judicial review proceeding, he seeks:

(a) a declaration that the decision of the LCRO was a nullity, or alternatively that it be quashed; that the application fee paid by him to the LCRO be refunded; and that the LCRO be directed to conduct a fresh hearing ― ... in accordance with the rules of evidence and natural justice‖;

(b) a recommendation by the Court to the Minister of Justice and the Attorney-General directing that the LCRO ― ... undergo further training regarding his statutory duties,‖ or alternatively a determination that the LCRO is ―unfit for the office‖.

Background

[3] For some years Mr Siemer has been engaged in bitterly contested litigation against Mr M Stiassny, an Auckland chartered accountant, and his interests. In 2005, after hearing detailed argument, Ellen France J granted an interim injunction restraining Mr Siemer from publishing certain information about Mr Stiassny:

Ferrier Hodgson v Siemer.[1] An appeal by Mr Siemer to the Court of Appeal failed:

_{Siemer v Ferrier Hodgson.}[2]

[4] Subsequently, after a further defended hearing, Potter J determined that Mr Siemer had published material in breach of the injunction and that he was in contempt of Court. She imposed a fine of $15,000: Ferrier Hodgson v Siemer.[3]

Mr Siemer‘s appeal to the Court of Appeal against that decision was dismissed:

Siemer v Stiassny.[4]

[5] Mr Siemer‘s application for leave to appeal to the Supreme Court was

declined.[5]

[6] A short time later Mr Siemer appeared once more before Potter J who found him again to be in contempt in respect of the publication of further information. This time he was imprisoned for a term of six weeks.[6] That was in July 2007.

[7] In the light of that history, the Solicitor-General came to the view by January

2008 that Mr Siemer was continuing to breach the interim injunction granted by Ellen France J and that he should be further committed to prison for contempt until further order of the Court. The Solicitor-General‘s application, dated 28 January

2008, was heard by a Full Court (Chisholm and Gendall JJ) on 16 and 17 June 2008.

[8] The Full Court held that Mr Siemer had knowingly been involved in further publications on certain websites, in contravention of the earlier injunction, since he was sent to prison by Potter J.[7] The Court further held that such publications constituted a serious and deliberate attempt to thwart and impede the proper administration of justice. Consequently, the Court made an order committing Mr Siemer to prison for a period of six months, but both the writ and the order were

suspended pending further order of the Court so as to give Mr Siemer an opportunity to remove from the relevant websites the offending material that was the subject of the application. If he removed all of that material by 1 August 2008 and provided a suitable undertaking that it would not be placed back on the websites, then the Court

_{indicated that it would hear further submissions from the Solicitor-General and}

Mr Siemer as to penalty. If he did not do so, then he was to be committed to prison for six months.

[9] Either way Mr Siemer was directed to attend at Court on 1 August 2008. He did not appear and was accordingly committed to prison for six months.

[10] Mr Siemer appealed to the Court of Appeal[8] and then to the Supreme Court.[9]

In the Supreme Court, the majority held that as a necessary consequence of the enactment of s 24(e) of the New Zealand Bill of Rights Act 1990, the power of a New Zealand court to impose a sentence of imprisonment for contempt was limited to the imposition of a term of imprisonment of no more than three months and/or a

fine.[10] The Supreme Court accordingly allowed the appeal and made an order

committing Mr Siemer to prison for a term of a maximum of three months, subject to the proviso that the term of imprisonment would come to an immediate end if Mr Siemer complied with the injunction issued on 5 May 2005,[11] and that he also provided a suitable undertaking to the Court.

[11] Mr Siemer has served the terms of imprisonment imposed by Potter J and later by the Supreme Court.

Mr Siemer’s complaint

[12] After the Court of Appeal judgment of 9 March 2009, but before the case reached the Supreme Court, Mr Siemer made a written complaint to the NZLS. He had formed the opinion that the Solicitor-General had been in breach of his ethical obligations to the Court, and indeed of the criminal law. It is necessary to set out in its entirety his letter of 1 September 2009 to Mr J Marshall QC, President of the

_{NZLS. It reads:}

Complaint regarding conduct of David Collins QC as NZ Solicitor

General

Dear Mr Marshall

Please accept this letter and attachments in support of a formal complaint against David Collins‘ conduct in his capacity as New Zealand Solicitor- General.

A primary function of David Collins as Solicitor General is to maintain the

Rule of Law.

The evidence provided with this complaint will show that, as Solicitor General, Mr Collins violated his statutory duty and knew, or should have known, he was committing criminal acts when filing a false legal charge AND preventing a Parliamentary inquiry.

1. On 28 January 2008, Mr Collins filed a contempt application against the writer in the Auckland High Court. This application sought indefinite imprisonment and was personally signed by Mr Collins as Solicitor- General. This signed application incorrectly alleged that publications “on the websites kiwisfirst.com and kiwisfirst.co.nz (were) in breach of the injunction”.

2. Mr Collins‘s signed declaration to the High Court was the culmination of events where Mr Collins abused his lawful authority and office, resulting in a man being sent to prison on a false pretence.

3. The evidence shows Mr Collins was persistent in not letting his actions be deterred by the Rule of Law. This extended to his obstructing an official inquiry which conflicted with his personal campaign.

4. On 19 July 2007, the Solicitor General sent a letter to the webhost demanding unspecified content on unnamed New Zealand judges be removed (Exhibit ―B‖). This was an unlawful demand by the NZ Solicitor General. The New Zealand webhost obtained legal advice which confirmed the Solicitor General had made an unlawful demand.

5. Mr Collins was undeterred. He sent another letter to the webhost [on]

31 July 2007 wherein he threatened to use his office to bring a State-

sponsored prosecution against the webhost because of content ―I consider to be objectionable”. (Exhibit ―C‖). Again, the Solicitor General clearly exceeded his lawful authority in demanding a lawful business accede to his capricious and unilateral personal assessment. This ―government‖ threat did cause the webhost to recommend the owners host the website off shore, which they did.

6. As Editor of kiwisfirst.com and kiwisfirst.co.nz, I formally engaged the Solicitor General and the Domain Name Commissioner in discussions to find a lawful solution. As evidenced by an e-mail to me from the Commissioner dated 6 September 2007 (Exhibit ―D‖), the solution arrived at was agreed to by Crown Law (which Collins heads). That same day I deleted the one link mentioned by the Commissioner in this e-mail.

7. Meanwhile, the Solicitor General was actively using his official position to kill off a Parliamentary investigation into my committal to prison by Justice Potter in proceedings (1) where I was left legally unrepresented by earlier order of Potter J and (2) which were conducted by Potter J during my known three-week absence from New Zealand.

8. Solicitor General Collins‘ obstruction resulted in the Justice and Electoral Select Commissioner of Parliament preventing an inquiry called for in Petition 2005/142 on the false premise the matter was sub judice. Exhibit ―E‖ is a copy of the Commissioner‘s formal dismissal stating this was the basis.

9. Current speaker of the House Lockwood Smith‘ investigation determined that this Petition requesting a Parliamentary enquiry was not sub judice as ruled. Exhibit ‗F‘ is a copy of Dr Smith‘s 12 December

2007 letter to me in this regard.

10. Current attorney General Chris Finlayson was the senior lawyer (one of only two lawyers) on the Justice Select Committee which dismissed the Petition calling for inquiry on the false basis the matter was sub judice. Mr Finlayson clearly understood what ‗sub judice‘ meant. That he accepted this factually incorrect legal conclusion suggests he was demonstrably misled. Understandably, non-lawyer members would not have felt free to appropriately consider a Petition where lawyers were telling them they could not do so for a (contrived) legal reason.

11. It is curious timing that weeks after the Speaker‘s and Petitioner‘s enquiries exposed the Solicitor General‘s deception of the Justice Select Committee, Solicitor General Collins filed his contempt application in the High Court. Mr Collins‘ decision to initiate a prosecution four months after agreeing the website complied with the injunction was merely an attempt to provide cover for his earlier deception of the Select Committee on the sub judice claim. Again, Exhibit ‗D‘ shows Mr Collins was in the loop of communication; this supporting the deliberateness of his misrepresentation to the High Court.

12. If his allegations of injunction breach were true, David Collins needed only ask the Domain Name Commissioner to pull the plug on the website address. He did not do so because he understood the DNC would seek to confirm his allegations before complying with his demands. Conversely, Mr Collins understood the High Court would not check (if(sic) care) whether he was telling the truth.

13. Still, Mr Collins was clever to avoid committing perjury. While he personally signed the High Court contempt application stating the websites breached the injunction, he had a new lawyer in his office swear the Court affidavit stating the websites were in breach. Cross- examination of this witness revealed that she had not read or understood the injunction and was merely acting on direct orders from superiors to print off pages from the website on certain dates.[12]

14. Dr Smith reported in 2008 there were no documents before the Committee in relation to this petition, and nothing to indicate the Attorney-General and other members dismissed the petition and inquiry based on representations by the Solicitor General. However, a 10

August 2007 letter from Crown Law to the Clerk of the House of Representatives David McGhee QC regarding this petition – uncovered a year later – clearly showed a document trail did exist (Exhibit ―G‖). More damning, this letter implicated the Solicitor General directly in the improper dismissal by the Select Commissioner. This letter also demonstrated the Speaker of the House had been materially misled as to the existence of documents.

These actions minimally constitute serious recklessness by the Crown‘s chief law enforcement officer in his official capacity. I consider this evidence clearly demonstrates Mr Collins‘ unfitness as a lawyer and public official, as well as warrant strong sanctions by the New Zealand Law Society against him.

I await your findings on this serious matter.

[13] This complaint was dealt with by the National Standards Committee of the NZLS, acting pursuant to Part 7 of the Lawyers and Conveyancers Act 2006 (the Act).

[14] The complaint having been referred to the Solicitor-General by the Committee, Dr Collins wrote to the Committee on 3 September 2009. He invited the Standards Committee to exercise its discretion under s 137(1)(c) of the Act and to conclude that the complaint was both vexatious and that it raised matters already determined by this Court and by Parliament‘s Justice and Electoral Select Committee.

[15] Dr Collins identified three separate grounds of complaint in Mr Siemer‘s letter of 1 September 2009. First, he took it to relate to the Solicitor-General‘s decision to commence contempt proceedings against Mr Siemer. As to that, Dr Collins said:

4.1 My decision to bring contempt proceedings was taken in my capacity as Solicitor-General, one of the two Law Officers of the Crown, exercising prerogative powers. My decision to bring contempt proceedings may be subject to challenge in a court of competent jurisdiction. I do not, however, believe that when prosecution decisions are exercised by an officer of the Crown that those decisions can, per se, be the subject of disciplinary action.

4.2 In this case, Mr Siemer did challenge my decision to bring contempt proceedings against him. He subpoenaed me to give evidence in the High Court and then, despite technically being his witness, cross- examined me on the pretext that he wanted to establish that I had improper motives for bringing the contempt proceedings. The High Court not only rejected Mr Siemer‘s propositions but found him in contempt. That decision was upheld by the Court of Appeal. Copies of both judgments are annexed (A) and (B). For completeness, I record that the Supreme Court has granted Mr Siemer leave to appeal on the issue of whether or not, in the context of a civil contempt allegation, he was entitled to a jury trial. That issue is not relevant to the complaint.

[16] The second complaint identified by Dr Collins concerned communications by him to Enlighten Designs Ltd, a webhost. Dr Collins could see nothing untoward about his communications with that company.

[17] The final complaint dealt with by Dr Collins concerned the allegation that he obstructed Parliament‘s Justice and Electoral Select Committee. As to that, Dr Collins said the decision to bring contempt proceedings against Mr Siemer was made before a letter was written by Crown Law to the Clerk of the House of Representatives on 10 August 2007, notifying the Clerk of the House of the proposed contempt application in the context of the presentation of a petition to the House by Mr Hide MP on 24 July 2007, requesting that Parliament conduct an inquiry into Mr Siemer‘s earlier committal for contempt. With respect to that complaint Dr Collins said that it was for the Select Committee to decide how to respond to Mr Siemer‘s petition, and that the letter from Crown Law did not in any way misrepresent the legal situation at that date.

The Standards Committee’s decision

[18] In its decision delivered on 9 December 2009, the Standards Committee reviewed the history of the contempt litigation in detail, finding that there was nothing in the judgments of this Court, or the Court of Appeal, to suggest that Dr Collins had misconducted himself either in bringing the application or in any other way. The Committee concluded that:

4.6 It is not part of our role in the complaints jurisdiction to enter into a detailed examination of a case like this, for the purpose of identifying possible errors or misjudgements by a law officer in the

position of Dr Collins QC. Unless there was some compelling evidence of bad faith, including such matters as the deliberate falsification of evidence or the pursuit of the application for improper personal motives, we do not consider that it is appropriate for us to relitigate matters which have already passed scrutiny of the Courts. We also note that Dr Collins did not actually conduct the case as counsel and there can be no criticism of him for the manner in which the case was conducted at the two hearings (at first instance and on appeal).

4.7 We are satisfied that there is no basis at all for saying that Dr Collins

―exceeded his lawful authority‖, either in relation to the cease and

desist letters to the website hosts in making the contempt application itself, or in making or pursuing the contempt application. In both

respects the Solicitor-General‘s actions were endorsed by the Courts.

Nor do we consider that there is any evidence to support Mr Siemer‘s extravagant statements that Dr Collins ―...was committing criminal acts when filing a false legal charge ...‖ and that he is ―... not only unrepentant but dangerously considers himself above the law‖.1[13]

4.8 For these reasons we do not consider that Mr Siemer‘s complaints concerning the contempt application, or any aspect of the Solicitor General‘s conduct in relation to it, should be upheld. The fact that Mr Siemer succeeded in a limited way on appeal does not reveal anything improper on Dr Collins‘ part. We are satisfied that at both levels – High Court and Court of Appeal – the Judges found the application to have been properly brought and responsibly pursued. There is no basis upon which we should second guess or re-open those findings.

4.9 So far as Mr Siemer‘s complaints allege that Dr Collins misled Parliament, or obstructed the business of a Parliamentary select committee, we agree with Dr Collins that this is an inappropriate matter for the Lawyers Complaints Service:

(a) Although Mr Siemer has used rather imprecise language in this part of his complaint, referring to Dr Collins

―...preventing a Parliamentary inquiry‖ and using his ―

...official position to kill off a Parliamentary investigation...‖,

the substance of this aspect of the complaint is that Dr Collins misled or deceived Parliament by saying that the contempt proceedings were sub judice;

(b) That is a matter for Parliament to pursue, should it think fit to do so, through its Privileges Committee; and

(c) Allegations of contempt of Parliament (which correctly characterises this aspect of Mr Siemer‘s complaint) are not matters within our jurisdiction to investigate and are within the sole jurisdiction of Parliament itself.

4.10 In any event, we have seen no evidence to support this aspect of

Mr Siemer‘s complaint.

Mr Siemer’s application for review by the LCRO

[19] Part 7 of the Act makes provision for the appointment of a LCRO.[14] The person so appointed is not to be a lawyer or a conveyancing practitioner. His or her functions are defined as follows:[15]

The functions of the Legal Complaints Review Officer are—

(a) to exercise the powers of review conferred on the Legal Complaints

Review Officer by this Act:

(b) to promote, in appropriate cases, the resolution, by negotiation, conciliation, or mediation, of—

(i) complaints; or

(ii) such issues relating to complaints as the Legal Complaints

Review Officer specifies:

(c) to provide advice to the New Zealand Law Society and the New Zealand Society of Conveyancers and the Minister on any issue that the Legal Complaints Review Officer identifies in the course of carrying out reviews (being an issue that relates to the manner in which complaints are received and dealt with under this Act or any rules made under this Act).

[20] A complainant who is dissatisfied with a determination of a Standards Committee may apply to the LCRO for review of that determination.[16] Upon receiving an application, the LCRO is obliged to conduct a review.[17] He must also conduct that review with as little formality and technicality, and as much expedition, as is permitted by:[18]

(a) The requirements of the Act; and

(b) A proper consideration of the review; and

_{(c) The rules of natural justice.}

Upon review, the LCRO may:[19]

(a) confirm, modify, or reverse any decision of the Standards Committee, including any determination, requirement or order made, or direction given by the Standards Committee (or by any person on its behalf or with its authority); and

(b) exercise any of the powers that could have been exercised by the Standards Committee in the proceedings in which the decision was made or the powers were exercised or could have been exercised.

[21] Mr Siemer decided to apply to the LCRO for a review of the decision of the Standards Committee. He did so by letter dated 15 December 2009. He complained that the Standards Committee had failed to address the core of his complaint, which was that, irrespective of the approach adopted by this Court to Dr Collins‘ application, the latter was in breach of his ethical obligations to the Court. In his letter to the LCRO Mr Siemer said:

5. With respect, it was not relevant as to whether the Court took any position in relation to the issues in this complaint. And the Court merely failing to deal to lawyer misconduct does not mitigate the evidence of Collins‘ breach of his legal obligations to the Bar. Nor does his Crown position absolve him of his oath and obligations as a lawyer.

6. The evidence – originating from Mr Collins himself – makes clear:

a. Collins made unlawful demands in a legal capacity, to attack a lawful business.

b. Collins misled the Court in respect to breaches of the interim injunction –after his office confirmed through the Domain Name Commissioner that www.kiwisfirst.co.nz and www.kiwisfirst.com were in legal compliance.

c. That Collins knew he was materially misleading the Court is borne by evidence; namely, Collins failed to identify in his application or evidence one injunction breach on the websites subsequent to his office confirming they were in lawful compliance 4 months earlier. Instead, his contempt prosecution clearly focused on what he knew had been deleted and never republished. This shows his claim as false that he sought to correct an active breach by his prosecution – in circumstances where a historical prosecution over past breaches long since corrected would never have succeeded.

7. So why did the Court not address this? Beyond being irrelevant to this complaint, the Judges perhaps had their own agenda – and this fit

nicely with Mr Collins‘ own unlawful agenda. It does not take a lawyer to see that both the High Court and the Court of Appeal materially misstated and misapplied the injunction. Both Courts also utterly failed to identify specific published words alleged to be in injunction breach – an elementary requirement in law. When the High Court did venture into actual evidence of published breaches, they relied on publications from ―1 August 2007‖, as they noted they did in paragraph [63]. This was a full month before Crown Law confirmed compliance AND FIVE MONTHS before Collins launched his false prosecution.

8. If five New Zealand judges are incapable of grasping such elementary issues, what plausible hope can we expect from them when it comes to noting Mr Collins‘ obvious deception? Bottom line: the Court‘s failure to state the obvious is not a defence. It does not let Mr Collins off the hook.

[22] The review application was referred to Dr Collins, who by letter dated

13 January 2010 invited the LCRO to deal with the matter pursuant to s 205 of the Act, under which the LCRO may, in conducting the review, decline to conduct any further inquiry or investigation. According to Dr Collins, that course was appropriate because:

(a) Mr Siemer‘s complaints had been the subject of a very careful and

thoroughly reasoned decision by the Standards Committee;

(b) The High Court and the Court of Appeal had found against Mr Siemer

― ... on the matters which are material to his complaint against me‖.

[23] The Act confers upon the LCRO a significant degree of discretion in respect of procedural matters. In particular, he may conduct the review as he sees fit, while ensuring at all times that the principles of natural justice are not infringed. The LCRO has issued a document entitled “Guidelines for Parties to Review” which is available to parties to reviews and generally to the public at www.justice.govt.nz/tribunals.

[24] Paragraph 31 of the guidelines reads:

Where it appears to the LCRO that the material provided by the applicant does not show that there is a case for the respondent to answer the LCRO may conduct a ―case to answer‖ hearing. At such a hearing only the applicant is expected to attend and its purpose is to determine whether the

matter needs to proceed to a full hearing. There is a separate guideline available at www.justice.govt.nz/tribunals in respect of case to answer hearings.

[25] The LCRO decided that a ―case to answer‖ hearing was appropriate. Mr Siemer attended the hearing on 28 January 2010. Dr Collins did not; he was not obliged to do so. The LCRO delivered a decision in writing on 3 February 2010. He dismissed the application for review and confirmed the decision of the Standards Committee.

[26] The LCRO noted that the focus of Mr Siemer‘s allegations at the case to answer hearing was the Solicitor-General‘s conduct with respect to the committal proceedings. As to that the LCRO said:

[8] At the hearing Mr Siemer focused on his allegation that it was inappropriate for the Solicitor General to have sought an order of the Court committing him to prison for contempt. In light of this, I will focus on this in the application for review.

[9] Mr Siemer‘s complaint is based on a suggestion that the websites which were claimed to be in breach of court orders by the Solicitor General in his application of 28 January 2008 were in fact not in breach. This is at odds with the findings of the High Court which had the content of the websites before it and at para [90] of its decision of 8 July 2008 found it provided beyond reasonable doubt that Mr Siemer‘s contempt of Court had continued since 13 July 2007.

[10] Mr Siemer argued that I should not take account of that finding and that I should require the Solicitor General to produce evidence to show that there was a breach of the injunction at the time. He argued that the Solicitor General had successfully misled the Court and that I should not be timid in examining this conduct simply because it resulted in the Court finding against Mr Siemer. To this end transcripts of evidence in the High Court have been provided to me. I have read those transcripts but i do not find them particularly useful.

[11] If the decision of the Court is based on an error the proper forum for correction of that error is appeal. Mr Siemer, in his complaint and this application for review is fundamentally arguing that the High Court (and the Court of Appeal) are wrong.

[12] It is entirely inappropriate for me to revisit on a review of a complaint against a lawyer a finding of fact of the High Court, let alone one which has been the subject of an appeal. The conduct of a lawyer in court may properly be the subject of a complaint and discipline in some case. However, in this case Mr Siemer is seeking to argue that the very basis for the decision of the Court is flawed. This is a collateral attack on the decision of the Court. It is not appropriate for a complaints procedure to be used to

undermine or revisit a decision of the Court. That is the function of the appeal process.

[13] In so far as Mr Siemer has asked me to revisit the findings of the High

Court I decline to do so.

[14] It is also the case that the conduct which is complained against occurred in open court and was therefore subject to the scrutiny of the Court. Had the conduct of Mr Collins been inappropriate the High Court and the Court of Appeal had an opportunity to comment on it. This did not occur. This fact was properly referred to by the Standards Committee.

[15] The Standards Committee in its decision considered the conduct of the Solicitor General more broadly and concluded that there was no evidence of unprofessional conduct in respect of the committal proceedings. I have heard from Mr Siemer, examined the material that was before the Standards Committee, and read the transcript of evidence of the High Court (including that of the Solicitor General). I conclude that the Standards Committee properly considered this matter and the conclusion that it reached was reasonable and proper.

[27] The LCRO regarded the other aspects of Mr Siemer‘s complaint as subsidiary in character. He upheld the Standards Committee‘s decisions in each case, finding that the Solicitor-General had acted appropriately in his correspondence with the webhost, and that there was no basis for interfering with the decision of the Committee in respect of the Solicitor-General‘s communications with the Clerk of the House over the Parliamentary petition.

[28] In the result, the LCRO declined Mr Siemer‘s application for review in its

entirety.

The statement of claim

[29] In the present proceeding, Mr Siemer alleges that the review decision of the

LCRO was erroneous in that he:

(a) failed to take into account a relevant consideration, namely evidence that the Solicitor General had misled this Court during the course of the contempt proceedings;

(b) took into account an irrelevant consideration, namely the apparent vindication of Dr Collins by reason of the decision of this Court to

uphold his application for an order committing Mr Siemer for contempt;

(c) had predetermined the outcome, in that at the outset of the case to answer hearing, the LCRO indicated that he considered the decision of the Standards Committee to have been correct, but that he was open to persuasion by Mr Siemer.

[30] The LCRO has given notice of his intention to abide the decision of this Court. Dr Collins filed a statement of defence and was represented by counsel at the hearing. It is common ground that the exercise by the LCRO of his statutory functions constitutes the exercise of a statutory power of decision, and that the Court has jurisdiction to entertain Mr Siemer‘s claims.

Preliminary evidential issue

[31] At the outset of the hearing, Mr Siemer expressed concern at the absence of a transcript of the recording of the proceedings before the LCRO. He had asked that the record of proceedings be transcribed and be made available to the Court and the parties. For his part, the LCRO considered the recording to be the equivalent of Judge‘s notes, and therefore privileged from production.

[32] In his affidavit of 22 February 2010 in support of the application for judicial review, Mr Siemer said:

2. I attended a ―case to answer hearing‖ set by the first defendant (Duncan Webb) on 27 January 2010 in the Auckland District Court building. This was, as I understood it, to make my case for review of the New Zealand Law Society‘s dismissal of my complaint against the second defendant (David Collins). I paid a $30 fee for this review.

3. At the commencement of this hearing, Mr Webb told me that he concurred with the NZLS‘s decision. This astounded me, because the hearing had barely commenced and he was freely disclosing his predetermination in the matter.

[33] The LCRO has not filed an affidavit. I indicated to Mr Siemer that, in the absence of evidence to the contrary, the Court was obliged to accept that the LCRO

had indeed told him at the commencement of the hearing that he (the LCRO) concurred with the decision of the Standards Committee. That being so, Mr Siemer was content that the hearing should proceed without a transcript of the recording of proceedings at the case to answer hearing.

An irrelevant consideration?

[34] Mr Siemer‘s principal contention is that the LCRO was not entitled to take shelter behind the findings of the High Court, and that in doing so, he took into account an irrelevant consideration. The onus of proving on the balance of probabilities that an irrelevant consideration was taken into account, or a relevant one ignored, rests on the applicant.[20]

[35] Mr Siemer‘s argument is that Dr Collins was motivated by malice and that he had no sufficient evidence upon which properly to make an application to the Court to have Mr Siemer committed for contempt.

[36] The application in question, signed by Dr Collins in his capacity as Solicitor- General, is dated 28 January 2008. The grounds relied upon were set out in detail:

4. The following events have occurred:

4.1 On 5 May 2005 Ellen France J in Ferrier Hodgson & Stiassny v Siemer & Ors rescinded an ex parte interim injunction made on 8 April 2005 by Winkelmann J and in its place imposed an interim injunction directing ‗Mr Siemer, Paragon Services Limited, and their servants, contractors or agents not to:

(1) Publish in any form any information containing allegations of criminal or unethical conduct or as to improper personal enrichment on the part of the plaintiffs in relation to their conduct of the receivership of Paragon Oil Systems Ltd; any claim that the plaintiffs deliberately overcharged Paragon Oil Systems Ltd in the sum of $10,000; together with information as to the facts of complaints made by Mr Siemer and/or Paragon Oil Systems Ltd to ICANZ or to the Serious Fraud Office, and including any information obtained by Mr Siemer or Paragon Oil Systems Ltd in the course of discovery in any proceedings pending further order of the Court; and

(2) Not to reinstate the billboard.‖

Hereinafter referred to as ―the injunction‖.

4.2 A copy of the sealed order relating to the injunction of 5 May

2005 was served on the respondent on 20 April 2007 (refer accompanying affidavit of Vanushi Sitanjali Rajanayagam sworn

14 December 2007).

4.3 On 13 December 2005 the Court of Appeal dismissed an appeal brought by the respondent and Paragon Services Limited (of which he was a managing director) against the injunction.[21] The Court of Appeal held that the injunction in the form ordered by Ellen France J was to be maintained and the respondent‘s challenge to the injunction failed.

4.4 Justice Potter subsequently found the respondent in contempt of Court for breaching the ex parte injunction of 8 April 2005 and the injunction and imposed a fine of $15,000.[22]

4.5 Justice Potter later held the respondent in contempt of court a second time for disseminating and publishing material in breach of the injunction.[23]

4.6 Potter J later sentenced the respondent to imprisonment for six weeks for the breaches of the injunction identified in her contempt decision of 9 July 2007.[24]

4.7 The respondent has deliberately continued to publish statements on the websites stiassny.org, kiwisfirst.com and kiwisfirst.co.nz in breach of the injunction.

5. Further grounds in support of this application are contained in the affidavit of Esther Jan Watt, filed with this application.

6. The applicant claims that the actions of the respondent in maintaining or publishing statements on websites in respect of which he is the editor, or over which he has control, constitute a deliberate, persistent and unjustifiable disregard for the High Court‘s injunction, and an assault on the authority of that Court. The respondent has not responded to previous sanctions imposed by the Court for the same or similar behaviour. His actions thereby constitute a serious and on-going act of contempt of Court requiring an indefinite term of imprisonment.

7. The term of imprisonment may cease when the respondent is no longer breaching the injunction in any way, and upon an undertaking from him that he will not act so as to contravene it in the future.

[37] Dr Collins did not file an affidavit in the contempt proceedings. Instead, he relied on an affidavit filed by Ms Esther Watt, a young solicitor employed by Crown Law. In her affidavit she deposed to having monitored the websites maintained by Mr Siemer over a period of many months; and she annexed to her affidavit a substantial number of print-outs of various statements made on those websites through the latter part of 2007, and in January 2008.

[38] Ms Watt was cross-examined at the contempt hearing. She accepted that her role was confined to the identification of passages on the websites that arguably constituted a continuing contempt. She correctly said in cross-examination that the question of whether the passages concerned did in fact constitute a contempt was a matter for counsel, and ultimately for the Court.

[39] Mr Siemer argues that the only passage expressly identified by the Full Court as constituting a contempt was published prior to a communication from Crown Law in which it was accepted, with one minor exception, that the websites were free of offending material. The relevant passage in the High Court judgment reads:

[64] The other two websites alleged to contain material in breach of the injunction are www.kiwisfirst.com and www.kiwisfirst.co.nz. These are linked sites which means that the material on the two sites is effectively identical. A printout on 13 August 2007 of www.kiwisfirst.com includes an article dated 9 August 2007 containing the following:

“On 2 August 2007, a further letter was sent by the Solicitor General, this time alleging the website breached an „interim‟ injunction that has been in place for more than two years – an injunction that prevents evidence of likely criminal deceit by Vector Energy Chair Michael Stiassny being made public ... Recently, the Court of Appeal ignored evidence – evidence furthermore caught on tape – that showed Mr Stiassny had perjured himself when filing the affidavit required to obtain the injunction ...

...

In 2005, Mr. Siemer estimated Mr. Stiassny, mainly through his company Ferrier Hodgson, had siphoned off as much as $7 million from his public positions and stewardship of imperilled New Zealand businesses. Moreover, Siemer uncovered evidence that formal complaints of gross financial misconduct against Stiassny by some of New Zealand‟s most talented investors and business people dating back 15 years were regularly buried in complaint committees

...”

Subsequently a printout of the site on 22 August 2007 showed that it was blank. However, by 27 August 2007 the site was again accessible and, while some of the offending material had been deleted, it still contained an allegation that Mr Stiassny had perjured himself. A printout on 11 June 2008 mentions Mr Stiassny‘s ―mismanagement and furtive accounting methods‖. Ms Watt confirmed that this material was still there when this hearing started.

[40] Mr Siemer says that the passages referred to in that paragraph existed on

13 August 2007, but deletions had occurred to the article since that time, and that the remaining material did not constitute a breach of the interim injunction. But [64] of the judgment does not constitute the whole of the Court‘s findings about the publication of material considered to be in contempt of the earlier injunction. The Court also said:

[65] Two things emerge from these websites. First, assuming for the moment that there has been publication, parts of the material remaining on the websites after Mr Siemer had been sentenced to imprisonment patently contravene the interim injunction granted by Ellen France J. Second, the sites were active in the sense of being positively updated after the sentence of imprisonment was imposed. In other words, this was not a situation where the site was created before the prison sentence was imposed and then simply left in an archived or dormant state on the site (although, having regard to the cases we will discuss shortly, the outcome of this proceeding might not have been any different if that had been the case).

[66] The second point (that the sites were active after Mr Siemer was sent to prison) can be illustrated by the following. The stiassny.org website printout of 25 January 2008 contains articles dated 20 October 2007 and 10

January 2008 and refers to events that occurred after Mr Siemer was sentenced to imprisonment. Similarly the printout of 11 June 2008 includes

articles dated 10 January 2008 and 25 March 2008 and also refers to events that took place after the prison sentence was imposed. The same applies to

the kiwisfirst.com site which includes articles carrying various dates in 2008 and references to contemporaneous events. So the sites were obviously

updated after the prison sentence was imposed. Added to those matters is the fact that the kiwisfirst.com site was deleted and then reinstated after the

prison sentence was imposed.

...

[76] These authorities highlight that in an internet context it is the accessing of the material that completes the publication, such publication having been facilitated by the creator of the material placing it on the internet. Applying those principles to the evidence, we have no difficulty in concluding that there has been publication (or republication) of material on the websites since Potter J sent Mr Siemer to prison. Since that time there has been a positive updating of the websites which is not only relevant to the issue of publication, but also indicates that these were deliberate actions by those involved in the publications. Publication was completed when Ms Watt and others at the Crown Law Office downloaded the material on to their

computers and read it. We also note that Mr Siemer acknowledged when presenting his submissions that the websites had received up to 100 “hits” a day. It matters not that the hosts of www.stiassny.com and www.kiwisfirst.com are based offshore. The offending material was published in New Zealand when it was downloaded and read in this country.

[77] We reject Mr Siemer‘s argument that there has been no publication because Ms Watt was unable to say whether the websites were cachet versions (as we understand Mr Siemer‘s proposition, he was saying that they could have been archived versions). Mr Siemer‘s argument is destroyed by the fact that Ms Watt and others were able to access and download material from the websites on numerous occasions and from different computers. Moreover, as already mentioned, Godfrey v Demon Internet Limited illustrates that even if material is being stored, publication will occur if the material can be accessed and viewed by other people.

[41] Having reviewed the material annexed to Ms Watt‘s affidavit, the Full Court plainly considered that, following Mr Siemer‘s earlier sentence of imprisonment, there had been further or continuing publication of material that patently contravened the interim injunction granted by Ellen France J.[25]

[42] In his decision, at [12], the LCRO said:

It is entirely inappropriate for me to revisit on the review of a complaint against a lawyer a finding of fact in the High Court, let alone one which has been the subject of an appeal ... in this case Mr Siemer is seeking to argue that the very basis for the decision of the Court is flawed. That is a collateral attack on the decision of the Court. It is not appropriate for a complaints procedure to be used to undermine or revisit a decision of the High Court. That is the function of the appeal process.

[43] Mr Siemer says that this approach is itself flawed because he does not seek to revisit the judgment of the High Court, but rather to examine the motives of Dr Collins, who was responsible for bringing the ultimately successful application.

[44] For Dr Collins, Mr Powell submits that the proceeding constitutes a thinly veiled collateral challenge to the judgment of the Full Court, and that it therefore amounts to an abuse of process, which, in the present proceeding, the Court has no

_{jurisdiction to countenance.}

[45] A classic exposition of the abuse of process principle appears in Hunter v

Chief Constable of West Midlands:[26]

The abuse of process ... is the initiation of proceedings in a Court of justice for the purpose of mounting a collateral attack on a final decision against the intending plaintiff which has been made by another Court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the Court by which it was made.

[46] An important aspect of abuse of process principles is the need for finality. Mr Powell usefully referred to The Ampthill Peerage Case[27] where Lord Wilberforce said:

English law, and it is safe to say, all comparable legal systems, place high in the category of essential principles that which requires that limits be placed upon the right of citizens to open or to reopen disputes. The principle which we find in the Act of 1858 is the same principle as that which requires judgments in the courts to be binding, and that which prohibits litigation after the expiry of limitation periods. Any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interest of peace, certainty and security it prevents further inquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth (I do not say that this is such a case), and these are cases where the law insists on finality. For a policy of closure to be compatible with justice, it must be attended with safeguards: so the law allows appeals: so the law, exceptionally, allows appeals out of time: so the law still more exceptionally allows judgments to be attacked on the ground of fraud: so limitation periods may, exceptionally, be extended. But these are exceptions to a general rule of high public importance, and as all the cases show, they are reserved for rare and limited cases, where the facts justifying them can be strictly proved.

[47] At the heart of Mr Siemer‘s argument lies the proposition that Dr Collins had no proper grounds for bringing the contempt application at all. That proposition is completely inconsistent with a finding of the Court which held, in effect, that he did.

_{Indeed, the Court expressly determined that Dr Collins as applicant had met the high}

burden of proof required of those who allege a contempt of court. A complaint that Dr Collins had no proper grounds for bringing the application is utterly at odds with the finding of the Court that a case for contempt had been made out.

[48] Mr Siemer‘s complaint therefore amounts to a collateral challenge to the

judgment itself, and constitutes an abuse of process.

[49] Mr Siemer submits that ordinary abuse principles ought not to apply, at least in their full rigour, where all that is in issue is a complaint of breach of a lawyer‘s ethical obligations. That is not to be equated, he submits, with an attempt to relitigate in one court an issue already determined in another.

[50] I do not consider that it is possible to draw any such distinction. Dr Collins is the Solicitor-General and the junior law officer of the Crown. Mr Siemer‘s complaint is that Dr Collins misled the High Court and so was in breach of the absolute duty of honesty owed by a lawyer to the Court. The complaint is very serious indeed, and the repercussions for Dr Collins and his reputation, if the complaint was upheld, would be far reaching. It is not possible in my view to make any realistic distinction, for present purposes, between statutory disciplinary proceedings on the one hand and conventional court proceedings on the other.

[51] In my opinion, the LCRO was right (as was the Standards Committee) to decline to consider Mr Siemer‘s complaint, because to do so would necessarily entail the relitigation of matters already considered by this Court.

[52] That finding represents a complete answer to all of Mr Siemer‘s claims in this proceeding (save for his predetermination argument), because the principle of public policy which underpins findings of abuse of process is intended to catch all collateral challenges, no matter how they are framed in a procedural sense.

[53] But because Mr Siemer has indicated that in the event of an outcome adverse to him he intends to take the matter further, I will briefly address the substance of his claims.

Relevant considerations ignored?

[54] Mr Siemer argues that, had the LCRO looked beyond the court judgment, he would have identified matters of such concern as to justify him in upholding the complaint. He asks the Court to remit the matter to the LCRO with a direction to consider the substance of his concerns. The grant of relief in judicial review proceedings is discretionary. This Court could not contemplate remitting the complaint to the LCRO for reconsideration unless satisfied that there was a degree of substance in the matters on which Mr Siemer relies in his complaint.

[55] The simple fact that the Court granted Dr Collins‘ application provides of itself a compelling indication that he had proper grounds for making the application in the first place. But I accept Mr Siemer‘s contention that the present inquiry does not necessarily stop there, if there is evidence that the Court has been materially misled in reaching its findings. An obvious ground for reviewing the Court‘s decision would be the identification of perjured evidence, or the making of untrue or misleading statements by counsel. Even then, however, the proper procedure would normally be by way of appeal, or, possibly, an application to recall or set aside the judgment.

[56] Mr Siemer argues that the Court was in fact materially misled by Dr Collins. He says that the passage specifically identified in paragraph [64] of the judgment, dated 13 August 2007, had been the subject of self-censorship by Mr Siemer at the end of August 2007, some five months before the filing of the contempt application. Accordingly, Mr Siemer says, Dr Collins well knew that, by the end of August 2007, Mr Siemer had so censored the websites as to bring them into compliance with the injunction. The difficulty with that point is that the Court decided that, notwithstanding any such censoring, material remaining on the websites did in fact amount to a continuing breach of the injunction in and after August 2007. Quite apart from the abuse of process point, the LCRO is asked by Mr Siemer to prefer his self-censoring explanation to the findings of the Court, which heard evidence and argument and issued a detailed judgment on the topic.

[57] Aside from Mr Siemer‘s assertion, there is no direct evidence before the LCRO that could possibly justify him in coming to a different conclusion to that reached by the Full Court.

[58] But Mr Siemer asks the LCRO to take account of certain other matters from which he says conclusions adverse to Dr Collins‘ integrity and honesty may properly be drawn, and which place Dr Collins‘ conduct in the committal proceedings in an unfavourable light. First, he refers to and relies upon an e-mail letter dated

6 September 2007 from the Domain Name Commissioner to him. That letter reads:

I acknowledge the changes that you have made to the content on kiwisfirst.co.nz and thank you for making those for when the site was reactivated.

Crown Law have also acknowledged the changes that you have made. They have however, raised one remaining objection.

Though the link to the site www.stiassny.org has been removed, there remains a live link to that site at the end of the item ―New Zealand Court of Appeal President caught in crosshairs‖. They consider that the presence of this link means that the site is still in breach of the order.

I have sought my own legal advice on this matter and my lawyers have confirmed that the presence of this link does constitute publication and therefore is a breach of the order.

I‘d like to request that you remove this link in order to make the kiwisfirst.co.nz fully compliant with the court order. Please undertake this change by 10 am tomorrow, Friday 7 September. If the link is not removed by this time, steps will be taken to cancel and lock the domain name in order to ensure that the website is not breaching a court order.

Please confirm when you have removed the active link.

[59] Mr Siemer relies on the letter in particular for the reference in its second paragraph to an apparent acknowledgement by Crown Law of ― ... the changes that you have made‖. His argument is that Dr Collins could not have been acting in good faith in making his contempt application when his own office had, some months earlier, indicated its apparent satisfaction with the state of the websites.

[60] In my opinion, that letter is quite insufficient to justify Mr Siemer‘s claim. In the first instance it is not a letter from Crown Law at all; it is from the Domain Name Commissioner who simply records what she understands to have been an

acknowledgement of some sort from Crown Law. In other words, it is hearsay and cannot constitute evidence against Dr Collins.

[61] Second, even if the letter could be relied upon in some way, it could not be regarded as prima facie evidence against Dr Collins because Mr Siemer‘s obligation to comply with the injunction was on-going and the letter could only be construed as applying to the state of affairs existing at the time at which it was written. The letter from the Domain Name Commissioner is quite insufficient to provide any sort of foundation for the proposition that, despite the Full Court judgment, Dr Collins had no proper basis for his application.

[62] Mr Siemer‘s next point concerns Dr Collins‘ communications with Enlighten Designs Ltd, a company which acts as a host to the website www.kiwisfirst.com, one of the websites with which the Court was concerned in the contempt proceedings.

[63] On 19 July 2007, Dr Collins wrote to that company in the following terms:

1. I am aware that Enlighten Designs Limited hosts the website www.kiwisfirst.com. I believe that the owner and author of the website is Mr Vincent Siemer.

2. You may know that one of the roles of the Solicitor-General is, in its broadest sense, to protect the administration of justice. In practice, among other things, this means that the Solicitor-General often becomes involved in responding to conduct which constitutes, or borders on, contempt of Court. One particular form of contempt is publications or conduct which, without justification, risk undermining public confidence in the integrity of the judiciary.

3. In my assessment the kiwisfirst website contains material which is defamatory of named Judges of the High Court and Court of Appeal and makes unfounded allegations of judicial misconduct. In particular, I am concerned by comments which allege deliberate misconduct, breach of the judicial oath, corruption, or which suggest that Judges have been motivated by an improper or unlawful purpose.

4. The purpose of this letter is to request your co-operation in removing material on the kiwisfirst website which is to this effect. Please note, the kiwisfirst website contains a link to www.stiassny.org which has recently been held to breach a High Court injunction. Mr Siemer is the author of this material. As a result, Mr Siemer has, for a second time, been held in contempt of court for publishing that material. He was recently sentenced to six weeks imprisonment.

5. My concerns about the kiwisfirst website are thus two-fold. First, I seek your assistance in removing material from the website which contains unfounded, abusive and scandalous comments about named Judges. Secondly, I wish to advise you that anyone who knowingly assists in breaching, or independently breaches the injunction against publishing the stiassny material, may also be liable in contempt for that breach.

6. If you have any queries arising out of this letter, please contact

Madeleine Laracy, Crown Counsel, in this office in the first instance.

[64] Twelve days later he wrote again. His second letter reads:

1. I am aware that after I sent you my letter dated 19 July 2007 relating to the www.kiwisfirst.com website Enlighten Designs Limited had the good sense to block access to the website and posted a notice saying that the site was ―parked‖. Recently I learnt that you had republished the website.

2. I am writing to you again to make my position on this website entirely clear.

3. Mr Siemer, the author of www.kiwisfirst.com is currently serving a prison sentence for deliberately breaching an injunction imposed by the High Court. I enclose a copy of Justice Potter‘s judgment dated 9

July 2007 finding Mr Siemer in contempt (a second time) for publishing allegations against a Mr Stiassny in breach of the

injunction, and a copy of her decision on penalty dated 12 July 2007. The relevant part of the injunction is set out at paragraph 16 of Potter

J‘s judgment of 9 July 2007.

4. The www.kiwisfirst.com website contains a range of material which I consider to be objectionable. In addition it contains material which in my assessment amounts to a clear breach of the High Court‘s injunction prohibiting publication of allegations against Mr Stiassny which allege criminal or civil wrongdoing on his part.

5. As a matter of law anyone in addition to Mr Siemer who, knowing the terms of the injunction, publishes material in breach of the injunction commits contempt of court. As the host of www.kiwisfirst.com Enlighten Designs Limited and its director is itself committing contempt of court by publishing allegations against Mr Stiassny which are prohibited by the terms and purpose of the present injunction. Your liability arises both from direct allegations made about Mr Stiassny on www.kiwisfirst.com and from the presence of at least two links on that website to www.stiassny.org.

6. Please treat this letter as notice that you have been warned that in my view Enlighten Designs Limited and its director are currently in contempt of court for breaching the injunction. If the offending material is not removed by midday tomorrow, 1 August 2007, from any website hosted by you I intend to commence proceedings for contempt against Enlighten Designs Limited and/or its director.

[65] In his letter of complaint to the NZLS, Mr Siemer argues that, in demanding that Enlighten Designs Ltd remove unspecified content about unnamed New Zealand Judges, Dr Collins was making an unlawful demand. In respect of the letter of 31

July 2007, Mr Siemer contends that Dr Collins as Solicitor-General ― ...clearly exceeded his lawful authority in demanding a lawful business accede to his capricious and unilateral personal assessment‖.

[66] There is no proper basis upon which the LCRO could uphold those aspects of Mr Siemer‘s complaint. In writing as he did, Dr Collins was simply notifying the website host that, in his capacity as Solicitor-General, he entertained grave concerns as to the lawfulness of the material on the website. In each letter Dr Collins advised Enlighten Designs Ltd that the material concerned had been the subject of contempt findings, with the result that the company and directors were themselves open to the imposition of sanctions.

[67] In other words, the letters amounted to no more than a step properly taken by

Dr Collins in the discharge of his lawful functions.

[68] Insofar as Dr Collins asserted that there had been findings by the Court that the material was in contempt, the contention is supported by the Court record. Insofar as he contended that the material concerned amounted to a continuing breach of the injunction, the contention was borne out by the subsequent decision of the Full Court.

[69] On the material before this Court, it is not possible to discern a proper basis upon which the LCRO could conclude that there was any substance in Mr Siemer‘s complaint against Dr Collins.

[70] The third ground relied upon by Mr Siemer does not arise out of his complaint to the NZLS at all. Rather, it stems from Dr Collins‘ response to Mr Siemer‘s initial complaint to the NZLS. In that response, Dr Collins says that he was cross-examined by Mr Siemer during the hearing before the Full Court. Mr Siemer says that is simply not true, and that Dr Collins‘ assertion reflects adversely upon the Solicitor-General‘s veracity and integrity.

[71] Mr Siemer was permitted by the Full Court to call Dr Collins as his own witness and to examine him as to his motives for bringing the contempt application. The transcript of the proceedings (which I have read) indicates that the members of the Full Court who heard the contempt application intervened on a number of occasions to close down what they saw as impermissible cross-examination of Dr Collins by Mr Siemer. But many of the questions which Mr Siemer‘s put to Dr Collins did in fact amount to cross-examination. Dr Collins‘ claim to have been cross-examined was therefore accurate. Again, there is nothing in this aspect of Mr Siemer‘s complaint that would warrant remitting the case back to the LCRO for reconsideration.

[72] Finally, there is Mr Siemer‘s complaint that Dr Collins somehow engineered a stay of a petition presented, by his supporters through Mr Rodney Hide MP, to the Justice and Electoral Select Committee of Parliament. The LCRO held that he had no jurisdiction to consider that portion of Mr Siemer‘s complaint because the proceedings of Parliament fell outside the purview of the Courts. That is manifestly correct. In the course of argument before me, Mr Siemer did not place any significant reliance on this aspect of his complaint.

[73] Drawing these threads together, I have reached the clear conclusion that it would not be proper, quite apart from any abuse of process finding, to remit Mr Siemer‘s complaint to the LCRO for reconsideration. That is because none of the grounds of his complaint, considered either singly or cumulatively, could justify the LCRO in upholding his complaint. There is simply insufficient material before the Court to justify the course urged on me by Mr Siemer.

Predetermination

[74] Mr Siemer‘s final complaint is to the effect that the decision of the LCRO was predetermined. He relies on what was said by the LRCO at the outset of the case to answer hearing. Mr Siemer‘s evidence is:

At the commencement of this hearing, Mr Webb [the LCRO] told me that he

concurred with the NZLS‘s decision. This astounded me, because the

hearing had barely commenced and he was freely disclosing his predetermination in the matter.

[75] The test for apparent bias in New Zealand is as articulated in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd[28] where Blanchard J said:

... subject to qualifications relating to waiver or necessity, a judge is disqualified ―if a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question the Judge is required to decide‖.

[76] But that is not to say the decision-maker may not express tentative or conditional opinions, provided that his or her mind is not closed. As was said in Devonport Borough Council v Local Government Commission[29] by Cooke P:

They may have provisional views and policies, but they must keep open minds in the sense that at the time or period of decision they must genuinely consider the issues, applying any prescribed criteria, and not merely go through the motions. In other words, as Mr Randerson accurately put it, they must remain amenable to argument. Fairness obviously requires as much.

[77] The LCRO was conducting a case to answer hearing in terms of paragraph 31 of the published guidelines. Mr Siemer clearly understood the nature of that hearing, which was convened because it had appeared to the LCRO that there was no case for Dr Collins to answer. The purpose of the case to answer hearing was to enable Mr Siemer to provide evidence or information that might indicate the need for a full hearing. In other words, the hearing was convened precisely because the LCRO had formed the tentative view that there was no case for Dr Collins to answer. So his opening advice to Mr Siemer to the effect was unsurprising.

[78] I accept Mr Powell‘s submission that a fair minded observer would have had no difficulty with the approach taken by the LCRO. It was legitimate for him, having read the papers, to form a view that there was no case to answer,, and to convene a case to answer hearing for the very purpose of giving Mr Siemer an

_{opportunity to re-argue his case in the light of the tentative view reached.}

[79] The present issue is whether the LCRO nevertheless remained amenable to argument. As Mr Powell submits, there is nothing in the decision itself, nor in the procedure he adopted, to suggest that the LCRO had in fact closed his mind to the possibility of a full hearing. He obviously received and read the material the applicant placed before him and his decision reflects that. There is no evidence that the LCRO had an impermissibly closed mind; this aspect of Mr Siemer‘s argument must also fail.

Result

[80] The present proceeding amounts to an abuse of process and must accordingly be dismissed. Irrespective of that conclusion however, I consider that there is insufficient material before the Court to indicate that any of Mr Siemer‘s grounds for complaint could have been made out before the LCRO; accordingly there is no basis upon which it would have been proper to remit the substance of those complaints to the LCRO for reconsideration in any event.

[81] The second defendant is entitled to costs on a category 2B basis, together with disbursements to be fixed by the Registrar if necessary.

C J Allan J

---

[1] _{Ferrier Hodgson v Siemer HC Auckland CIV-2005-404-1808, 5 May 2005.}
[2] Siemer v Ferrier Hodgson CA87/05, 13 December 2005.
[3] _{Ferrier Hodgson v Siemer HC Auckland CIV-2005-404-1808, 16 March 2006.}
[4] _{Siemer v Stiassny [2008] 1 NZLR 150 (CA).}
[5] _{Siemer v Stiassny [2007] NZSC 53.}
[6] Ferrier Hodgson v Siemer HC Auckland CIV-2005-404-1808, 9 July 2007; Ferrier Hodgson v _{Siemer HC Auckland CIV-2005-404-1808, 13 July 2007.}

[7] Solicitor-General v Siemer HC Auckland CIV-2008-404-472, 8 July 2008.
[8] _{[2009] 2 NZLR 556 (CA).}
[9] _{Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 (SC).}
[10] _{At [67].}
[11] Made permanent in Korda Mentha v Siemer HC Auckland CIV-2005-404-1808, 23 December 2008.

[12] Transcript of Esther Watt testimony, 16 June 2008, Solicitor-General v Siemer CIV 2008-404-472, [8 July 2008.]

[13] The former statement is in Mr Siemer‘s letter of 1 September 2009 and the latter in his letter of

9 September 2009.
[14] _{S 190.}
[15] _{S 192}
[16] _{S 194.}
[17] S 199.

[18] S 200
[19] S 211

[20] CREEDNZ (Inc) v Governor-General [1981] 1 NZLR 172 (CA) at 183.
[21] _{Siemer v Ferrier Hodgson (fn 2).}
[22] _{Ferrier Hodgson v Siemer, (fn 3).}
[23] _{Ferrier Hodgson v Siemer, 9 July 2007 (fn 6).}
[24] Ferrier Hodgson v Siemer, 13 July 2007, (fn 6).

[25] At [65].

[26] Hunter v Chief Constable of West Midlands [1981] UKHL 13; [1982] AC 529 reaffirmed in such cases as Smith v Linskills (a Firm) [1996] 1 WLR 763 (CA). The extended discussion of the Hunter principle in Lai v Chamberlain [2007] 2 NZLR 7 (SC) has no effect on the applicability of the principle in the present case.

[27] The Ampthill Peerage Case [1977] 1 AC 547 (HL) at 569.

[28] Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2010] 1 NZLR 35 (SC) at _[3].

[29] Devonport Borough Council v Local Government Commission [1989] 2 NZLR 203 (CA) at 207.