Solicitor-General v Krieger [2014] NZHC 172 (17 February 2014)

Last Updated: 17 February 2014

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2013-425-000273 [2014] NZHC 172

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

AND MARC ALLEN KRIEGER Respondent

Hearing: 16 December 2013

Counsel: S McKechnie for Applicant

Mr Krieger in person

Judgment: 17 February 2014

_{JUDGMENT OF PANCKHURST J}

The issues

[1] This is a contempt application filed by the Solicitor-General arising from a civil proceeding initiated by the Earthquake Commission against Mr Krieger and other unknown defendants.¹ In that proceeding EQC initially obtained an interim injunction and subsequently a permanent injunction restraining disclosure of information in a spreadsheet inadvertently sent by it to an earthquake repair contractor. Mr Krieger received a copy of the spreadsheet and facilitated internet

access to its contents.

_{[2] The present contempt application raises two issues for determination:}

¹ _{Earthquake Commission v Krieger & Ors HC Wellington CIV-2013-485-000530.}

THE SOLICITOR-GENERAL FOR NEW ZEALAND v KRIEGER [2014] NZHC 172 [17 February 2014]

(a) whether Mr Krieger has breached the terms of the High Court injunction, and

(b) if so, whether his conduct was a contempt of Court justifying the imposition of a penalty, namely a fine.

The background to the alleged contempt

[3] EQC is a statutory body established by the Earthquake Commission Act

1993. EQC is a Crown entity which administers the insurance of residential properties against certain natural disasters, including earthquakes. Homeowners who take out fire insurance with an insurance company are deemed to be insured against natural disaster damage to the extent provided in the Act.² The premiums for such cover are collected by the insurance companies and paid to EQC. The terms and limits of the cover provided under the Act are not relevant to the issues I have to determine.

[4] Commencing on 4 September 2010 the greater Christchurch area was hit by several powerful earthquakes, and swarms of aftershocks. The second major earthquake on 22 February 2011 caused multiple deaths and the earthquakes as a whole caused widespread property devastation.

[5] EQC engaged a lead contractor to assess and arrange repair work in relation to residential property damage. By September 2012 information had been collated relating to approximately 83,000 individual claims. EQC carried this information into a spreadsheet which contained 30 fields of information about each claim. Collins J, who heard EQC’s claim for injunctive relief, described these fields under

three headings:³

(1) Information about individual claims. This information includes information that could easily lead to the identification of individuals. It includes a claimant’s suburb, street name and street number and it includes information about each individual insurance claim, including the estimated value of those claims and the progress that was being made to remedy the damage suffered by each claimant.

² _{At s 18.}

³ Earthquake Commission v Krieger & Ors [2013] NZHC 3140 at [7].

(2) Information of a commercial nature. This information includes confidential information relating to the costs of repairing damage suffered by claimants, including assessments of the damage, and the amount quoted to repair the damage.

(3) Administrative information. This information relates to EQC’s administrative processes and the systems put in place to administer each claim.

[6] On 22 March 2013 an EQC employee included the spreadsheet as an attachment to an email and inadvertently sent the spreadsheet to an earthquake repair contractor, Bryan Staples, in Christchurch.

[7] On 4 April 2013 an article was published on a website entitled “EQC Truths”.

The article began:

I received an email this morning from a disgruntled EQC employee containing what appears to be the same spreadsheet...mistakenly emailed last week. Presently, I am communicating with my lawyers to decide how best to get this information into the public domain whilst complying with all legal requirements. I have no compunction about releasing the information because I believe that each customer is entitled to know the value that EQC has assigned to their claim, which in many cases is an inaccurate figure.

I should have the process for releasing the information by early next week and I will post it to the blog. Please stay tuned and let your friends and family members know that EQC Truths plans to release the information.

Initially the identity of the creator of the website, or blog, was unknown, but subsequently it was found to be Mr Krieger.

[8] On 6 April 2013 a further article was published entitled “How to Get Your Information”. Readers were told they should contact Mr Staples via his internet address or by calling at his office and provide verification of their identification, namely their earthquake claim number, rate demand and photo identification from a passport or driver’s licence. Claimants were also to sign an authority to disclose, and this would trigger a communication from Mr Staples to Mr Krieger so that he could email details from the spreadsheet directly to the particular claimant. Alternatively, the article stated that claimants could deal with Mr Krieger directly as he had an alternative procedure in place for verifying claimants’ identities. The article ended on the note that the information from the spreadsheet would be useful because it included the value that the Commission had assigned to each claim.

[9] EQC moved promptly. On 8 April 2013 it filed a proceeding in the Wellington High Court alleging that the spreadsheet contained private and confidential information, and that further publication of such information would constitute actionable breaches of confidence and privacy. That same day Collins J made an order prohibiting disclosure of the spreadsheet pending the hearing of EQC’s application for an interim injunction.

[10] That evening Mr Krieger published a press release on the website regarding the Judge’s ruling. The release asserted that the Commission had a “woefully weak case” and that the interim injunction was but an “underhanded procedural tactic to gain a temporary advantage.” The release added that although Mr Krieger strongly disagreed with the decision to grant the interim injunction he “steadfastly believed in principle that upholding the rule of law is sacrosanct,” and he would therefore abide by the High Court’s ruling. As a consequence the service he had made available to claimants was “temporarily suspended” but he expected it to resume shortly.

[11] On 9 April 2013 Collins J heard the application for an interim injunction. He prohibited recipients of the information in the spreadsheet from disclosing it to others and, more specifically, the author of the EQC Truths website from doing likewise, save for disclosure to a lawyer for the purposes of obtaining legal advice in relation to EQC’s proceeding.

[12] Later that day Mr Krieger responded with an article in which he stated “EQC Truths intends to release all information within 24 (hours).” The article criticised the High Court’s decision and characterised it as beyond jurisdiction and unlawful. The article continued:

Consequently, the High Court’s ruling is mere dictum and I reject it with the contempt it deserves. Given EQC’s malevolent and underhanded manoeuvres masquerading as legal tactics, I shall release the entire database within the next 24 hours.

[13] The article also asserted that as “EQC Truths could be outside New Zealand”

this Court may have lacked jurisdiction to grant the interim injunction.

[14] Commencing on 11 April 2013 Mr Krieger published on the website hyperlinks to five different websites from which the spreadsheet could be downloaded. EQC caused takedown notices to be issued to the various websites. These were responded to, but Mr Krieger in the end result supplied hyperlinks to other websites with the result that when the Solicitor-General filed this contempt application on 10 July 2013 hyperlinks to the spreadsheet remained available on at least two websites.

[15] On 23 May 2013 counsel for the Solicitor-General wrote to Mr Krieger at Te Anau and also emailed him, advising him that he had been identified as the author of the EQC Truths website and providing two weeks within which Mr Krieger could respond to the Solicitor-General’s then intention to issue contempt proceedings. On

25 May 2013 Mr Krieger replied stating he was travelling outside New Zealand and seeking an extension of time to respond.

[16] In late May and June 2013 Mr Krieger participated in radio interviews and filed a strike out application, a memorandum and an affidavit in response to EQC’s proceeding. The interviews and filings confirmed that Mr Krieger was the author of the EQC Truths website, and raised arguments in response to EQC’s claim.

[17] On 13 November 2013 Collins J heard EQC’s case seeking a declaration that Mr Krieger had disclosed information in breach of confidence and a permanent injunction prohibiting any further disclosure of the spreadsheet information. Consistent with indications he had earlier given, Mr Krieger did not appear. In a judgment delivered on 27 November 2013 the Judge granted both the declaration and a permanent injunction.

Contempt of Court

The contempt jurisdiction

[18] The power to punish for contempt is an inherent jurisdiction recognised and preserved by s 9 of the Crimes Act 1961. That section provides that no one shall be convicted of any common law offence in New Zealand, but then provides that the

section does not affect the power of the House of Representatives or of any Court to punish for contempt.

[19] It is important to understand the purpose of the contempt jurisdiction. McGrath J said in the leading New Zealand case of Siemer:⁴

The law of contempt does not of course exist to protect the dignity of judges but to protect the public interest in the due administration of justice by an impartial court.

He then adopted an observation of the Court of Appeal:⁵

...No one can question the extreme public importance of preserving an efficient and impartial system of justice in today’s society which appears to be subject to growing dangers of direct action in its various forms. It is to that end, and that end alone, that the law of contempt exists.

[20] These considerations give rise to a significant consequence. It is not open to a defendant in a contempt proceeding to challenge the validity of the order said to have been breached. The rationale for this was eloquently explained in a Canadian case:⁶

The order of the Tribunal...continues to stand unaffected by the [Canadian] Charter violation until set aside. This result is as it should be. If people are free to ignore Court orders because they believe their foundation is unconstitutional, anarchy cannot be far behind. The citizens’ safeguard is in seeking to have illegal orders set aside through the legal process, not in disobeying them.

[21] Contempt proceedings are dealt with by Courts in a summary manner.⁷ This reflects that where a contempt occurs in a Court during the hearing of a case (contempt in face of the Court) it must necessarily be dealt with on the spot. Where the contempt is of a kind occurring out of Court, perhaps involving disobedience of a Court order or an undertaking given to the Court in the context of a civil proceeding, an application and affidavit evidence will be required, but a prompt summary procedure remains the norm. Contempt is dealt with by a Judge sitting alone, or

_{perhaps a Court of two, but without a jury.}⁸

⁴ _{Siemer v Solicitor-General [2010] 3 NZLR 767 (SC) at [27].}

⁵ _{Solicitor-General v Radio Avon Limited [1978] 1 NZLR 225 (CA).}

⁶ _{Canada (Human Rights Commission) v Taylor (1990) 75 DLR (4}^th_{) 577 (SC) per McLachlin J.}

⁷ _{Solicitor-General v Radio Avon Limited [1978] 1 NZLR 225 (CA).}

⁸ Siemer v Solicitor-General [2010] 3 NZLR 767 (SC).

[22] Historically, contempts of Court were classified as either criminal or civil in nature. The distinction drawn was that criminal contempt concerned acts which so threatened the administration of justice as to require punishment in the public interest; whereas civil contempt involved disobedience of Court orders where intervention by the Court was remedial – for the benefit of the party in whose favour the order was made.

[23] However, the validity of this distinction has been doubted in many jurisdictions. A true dichotomy does not exist. Civil contempt, in common with criminal contempt, is similarly focused upon the due administration of justice. The remedial punishment for a civil contempt will benefit a litigant, but the Court intervenes in direct response to the disobedience of its order. Hence, civil contempt vindicates both the right of the successful litigant and equally the authority of the

Court. As Salmon LJ put it, the two objects are inextricably intermixed.⁹

Proof of civil contempt

[24] Although here a civil contempt is alleged, proof to the criminal standard of beyond reasonable doubt is still required.¹⁰ In the circumstances of this case I consider there are three elements to be proved. The first is the existence of an order unambiguous in its terms and binding upon the respondent. An aligned requirement is that the respondent had knowledge of the terms of the order, typically as a result of personal service of the order upon him or her.

[25] Second, it must be proved that the respondent acted in breach of the order. Hence the Solicitor-General must prove the occurrence of an act, or acts, in breach of the terms of the order.

[26] Third, there is a mental element. It must be established that the respondent’s

conduct was deliberate in the sense that he or she knew the obligation cast by the order of the Court, but nonetheless intentionally breached that obligation. It is not,

⁹ _{Jennison v Baker [1972] 2 QB 52.}

¹⁰ Siemer v Stiassny [2008] 1 NZLR 150 (CA) at [11].

however, incumbent on the applicant to prove that Mr Krieger knew his conduct would constitute a contempt of Court.¹¹

Were the relevant Court orders unambiguous?

[27] I am in no doubt that both the interim order, and the permanent order, were clear and unambiguous.

[28] The interim order was made on the papers on 8 April 2013, and confirmed the following day after a hearing before Collins J. He ordered that anyone who had received the spreadsheet information inadvertently released by EQC on 22 March

2013 was not to disclose that information to anyone else until further order of the Court. The Judge specifically restrained the author of the EQC Truths website from disclosing the information. Mr Krieger responded by publishing an article on the website in which he indicated that he considered the High Court had acted unlawfully, beyond its powers and that its ruling was mere dictum. He then gave notice of his intention to release the entire database within the next 24 hours.

[29] Although his identity was not then known and the order of the Court had not been served upon him, it is evident that he knew from the internet that the order had been made and that as a recipient of the EQC spreadsheet, and the author of the EQC Truths website, the order applied to him.

[30] Similarly, I am satisfied that the terms of the permanent order made on

27 November 2013 were equally clear and unambiguous. By then Mr Krieger was known by name, rather than a pseudonym, and the permanent injunction restrained him from disclosing the information contained in the spreadsheet. That Mr Krieger was promptly on notice as to the terms of the order is clearly established. Later on

27 November 2013 he published a further hyperlink to the spreadsheet, together with this commentary:

The aforesaid bumpkins are likely celebrating their Pyrrich victory tonight. I knew that EQC and (injustice) Collins has fixed the outcome of the case long ago, so I boycotted the trial and challenged it on jurisdictional grounds rather than wasting my money on insectile lawyers...

¹¹ At [10].

Then followed the new hyperlink and a challenge to the Judge that he had issued an unlawful ruling, “now let us see him enforce it”.

[31] Accordingly, I find that the terms of the Court orders were clear and unambiguous and that such orders were communicated to Mr Krieger promptly after they were made.

Did Mr Krieger breach the Court orders?

Points raised in opposition

[32] As noted, Mr Krieger communicated with Crown counsel and filed documents in the proceeding, albeit he did not ultimately appear at the substantive hearing in November 2013. These communications reveal points raised in response to EQC’s claim one of which remains relevant.

[33] On 9 June 2013 Mr Krieger emailed Crown counsel and stated:

The (interim) injunction expressly forbade, “those who have received the

information in the spreadsheet inadvertently released by EQC on 22 March

2013 are not to disclose the information to any other person until further notice of the Court. Of course, I had no idea whether my spreadsheet was the same as the one EQC released to Bryan Staples, but I erred on the side of caution and suspended my service to release information to individual claimants about their claims because I was in New Zealand and bound by the High Court’s jurisdiction. I was actually more than eager to do this because it was excruciatingly time consuming to verify the identities of hundreds of claimants and send them their particular information.

However, I learned that the leaked information was already on the internet thanks to an overseas person that also had access to the information and elected to publish it on a website. My understanding was that anyone could conduct a Google search and find this information. Given that the “secret” information was already in the public domain through an overseas source not bound to the High Court’s jurisdiction, I made an editorial decision to publish links to the information for those that wanted to obtain it. The ambit of the High Court injunction did not cover this particular scenario nor did the High Court have jurisdiction over the overseas poster. Afterwards, I received links from other individuals and I published these because many individuals in the comments section of my blog stated that they had trouble with the Excel spreadsheet.

[34] The various documents filed by Mr Krieger in relation to EQC’s proceeding

were in a similar vein. By reference to Coco v A N Clarke (Engineers) Limited¹²

Mr Krieger contended that the spreadsheet information lacked the necessary quality of confidence to raise a duty of confidence. He further asserted that Collins J had applied an incorrect test when granting the interim injunction, since an injunction infringing freedom of speech requires a higher threshold than an arguable case, in that the proposed publication may only be restrained for clear and compelling

reasons.¹³

[35] Mr Krieger also raised a jurisdictional challenge. He pointed out that he published only hyperlinks to overseas websites from which EQC claimants could access information pertaining to their claim, including in particular the repair estimate obtained by EQC. The circumstance that the spreadsheet information was downloaded from websites overseas meant that the High Court of New Zealand lacked jurisdiction.

Analysis

[36] I need not deal with the contentions that the Judge applied the wrong test and erred in relation to the assessment of the public interest and in finding that the spreadsheet contained confidential information. Collins J gave reasons for both his interim and substantive decisions. In the latter he expressly considered whether the spreadsheet information had the necessary quality of confidence and concluded that it did. Likewise, he considered and decided that Mr Krieger did not have a public interest defence, as freedom of expression did not prevail in the circumstances of this case.

[37] It is not for me to re-examine these aspects. They were duly considered, rejected and the interim and permanent orders were pronounced. As noted at [21] citizens may not ignore Court orders because they disagree with them. The appropriate response is to challenge the orders, not disobey them.

Is disclosure in breach of the injunction established?

[38] Both the interim, and the permanent, injunctions restrained disclosure of the spreadsheet information to others. Mr Krieger certainly provided hyperlinks to other websites from which the spreadsheet could be downloaded, but did this amount to actual disclosure of the information? Ms McKechnie submitted that Mr Krieger plainly breached the Court orders, and undermined the Court’s purpose, by publishing the hyperlinks on his website. She made submissions concerning “legal principles regarding publication.” Counsel cited three overseas authorities in support of her argument.

[39] The first was Universal City Studios Inc v Reimerdes.¹⁴ The plaintiff motion picture studios distributed motion pictures on DVDs. To protect copyright the DVDs were encrypted so that copies could not be taken. A software programme was devised to circumvent the encryption system, so that copies could be taken and played on devices lacking the approved decryption technology. The picture studios applied to enjoin the defendants from distributing the circumventing computer software. They also applied to prevent the defendants from providing a link to other websites to which the circumventing computer programme had been posted. Judge Kaplan, sitting in the District Court in New York, granted an injunction restraining both distribution of the circumventing software and the provision of hyperlinks to it.

[40] The case was decided under the Digital Millennium Copyright Act. That Act made it unlawful to offer, provide or otherwise traffic in described technology, a definition that included the circumvention software. Judge Kaplan held that where the defendants provided hyperlinks to sites that automatically downloaded circumvention software the statute was breached. Where the defendants provided hyperlinks to another website from which users could choose to download circumvention software, he considered that the use of a transferee site was a “distinction without a difference”. Ms McKechnie submitted that this reasoning was

_{compelling since it recognised the reality of the internet.}

¹⁴ Universal City Studios Inc v Reimerdes 111 F Supp 2d 294 (SD NY 2000).

[41] I disagree. I do not find the case helpful. The Judge’s conclusions reflected the statutory context, one much removed from the present context, a prohibition by injunction upon disclosure of particular information.

[42] The second case is Dow Jones & Co Inc v Gutnick.¹⁵ The question was whether the Australian plaintiff, Mr Gutnick, could sue an American company for defamation where the offending publication was on an American website, but also available to and in fact downloaded by Australian readers. The High Court accepted that the claim could proceed but limited to the reputational damage sustained in Australia. Again, I consider the case is of limited assistance, save that it is authority for the proposition that publication occurs at the place where material is downloaded and comprehended. This reasoning has been followed in New Zealand on this point.

[43] The third case is Crookes v Newton.¹⁶ Mr Newton operated a website in British Columbia. The site provided hyperlinks to other websites, which contained defamatory material concerning Mr Crookes. He sued Mr Newton for defamation contending that the hyperlinks, once accessed by users, effected publication of the defamatory material. In common with the trial Judge and the British Columbia Court of Appeal, the Supreme Court held that provision of the hyperlinks did not of itself implicate Mr Newton in publication of the defamatory material. But the nine Judges were divided as to their reasons for this conclusion.

[44] Six Justices considered that hyperlinks are in essence references, which are fundamentally different from other acts of publication. They communicate that something exists, but not its content. Hyperlinks are content-neutral. Only if the hyperlink itself repeats the defamatory content is there a relevant publication by the website creator. The Chief Justice and another Justice agreed that a hyperlink alone did not effect publication of defamatory material. However, if accompanying text on the website indicated adoption, or endorsement, of the content of the hyperlinked article, then the hyperlinker was implicated. The hyperlink, combined with the contextual material, ceased to be content-neutral, and rather becomes part of the offending text.

[45] The remaining Justice favoured a more nuanced approach, whereby the plaintiff must prove that the hyperlinker deliberately made the defamatory information readily available to others. I need not refer to the details of this judgment.

[46] While I have found Crookes v Newton of assistance, it too was decided in a different context. The issue was whether the hyperlinks effected a publication for the purposes of the law of defamation. The present case concerns a prohibition upon disclosure of specific information. I have found an English case decided in the context of contempt more informative.

[47] It is Attorney-General v Times Newspapers Limited.¹⁷ The case concerned the book, “Spycatcher”, written by a retired member of MI5 and containing information he was contractually bound not to disclose. Two United Kingdom newspapers published an account of the author’s allegations relating to MI5. An injunction was granted prohibiting the two newspapers from publishing further confidential information. Sometime later the publishers of another newspaper, the Sunday Times, acquired the right to serialise the book Spycatcher. Immediately following the first instalment of the serialisation the Attorney-General began contempt proceedings against Times Newspapers Limited (TNL), the publishers of the Sunday Times albeit no injunction had been granted in relation to this newspaper. Times Newspapers Limited received a substantial fine for contempt.

[48] By the time the case reached the House of Lords TNL accepted that the mental element of the contempt was established but contended that there was no actus reas – that is an act of disobedience capable of founding a contempt. Lord Oliver analysed the situation of the Sunday Times, a third party because the injunction did not apply to it, in this way:¹⁸

One particular form of contempt by a party to proceedings is that constituted by an intentional act which is in breach of the order of a competent court. Where this occurs as a result of the act of a party who is bound by the order or of others acting at his direction or on his instigation, it constituted a civil contempt by him which is punishable by the court at the instance of the party for whose benefit the order was made and which can be waived by him. The

¹⁷ Attorney-General v Times Newspapers Limited [1992] 1 AC 191 (HL).

intention with which the act was done will, of course, be of the highest relevance in the determination of the penalty (if any) to be imposed by the court, but the liability here is a strict one in the sense that all that requires to be proved is service of the order and the subsequent doing by the party bound...of that which is prohibited. When, however, the prohibited act is done not by the party bound himself but by a third party, a stranger to the litigation, that person may also be liable for contempt. There is, however, this essential distinction that his liability is for criminal contempt and arises not because the contemnor is himself affected by the prohibition contained in the order but because his act constitutes a wilful interference with the administration of justice by the court in the proceedings in which the order was made. Here the liability is not strict in the sense referred to, for there has to be shown not only knowledge of the order but an intention to interfere with or impede the administration of justice – an intention which can of course be inferred from the circumstances.

[49] Although this passage concerns third party liability it serves to demonstrate the reach of contempt. In particular it illustrates that when courts have recourse to their inherent jurisdiction to publish a contempt, they embrace concepts akin to those applied in the criminal law. Participation in a contempt is to be assessed in a manner similar to the assessment of participation in a crime. Where a clearly expressed prohibition exists, the evaluation of an alleged breach should be robust and reflect the practical reality of the factual situation. The issue here is one of causation. Did Mr Krieger’s publication of the hyperlinks in fact facilitate disclosure of the spreadsheet? Clearly it did. It matters not that all, or some, of the websites were overseas, as disclosure of the information occurred in New Zealand when EQC claimants downloaded it.

[50] For these reasons I find it established beyond reasonable doubt that

Mr Krieger breached the Court order by which he was bound.

Is the mental element established?

[51] Proof of this aspect is beyond question. Mr Krieger, in the comments he made at the time the hyperlinks were published, and subsequently, admitted not only what he had done, but why he felt justified in doing it.

[52] Accordingly, this, the third element is also established beyond reasonable doubt.

Two further matters

[53] Perhaps out of an excess of caution Ms McKechnie made submissions concerning jurisdiction and my proceeding to hear this case in Mr Krieger’s absence. In certain of his communications Mr Krieger stated that he is now resident in Switzerland, his assets are there and asserted that this Court no longer has jurisdiction over him. The submissions on behalf of the Attorney-General responded to this claim, and the associated question whether a formal proof hearing could proceed in Mr Krieger’s absence. I can briefly deal with both aspects.

[54] There can be no question that this Court has jurisdiction. Mr Krieger was present in New Zealand when at least some of the relevant events occurred. After the Solicitor-General filed the contempt application he provided a postal address in Te Anau, and email details, this being his preferred method of communication. The contempt application was served on Mr Krieger by email.

[55] Moreover, he took steps in the proceeding, including filing the documents to which reference has already been made, and participating in a telephone conference convened by an Associate Judge on 29 August 2013. Thereby he clearly submitted to the jurisdiction of this Court. If it is in fact true that Mr Krieger is now resident in Switzerland, so be it. Having submitted to the jurisdiction of the Court in relation to this proceeding, he cannot escape the consequences of his actions in New Zealand by fleeing overseas.

[56] A person facing a contempt proceeding has the right to be present at the hearing and to present a defence.¹⁹ But a person may choose not to exercise this right. That is the situation here. Mr Krieger was advised of the date of the hearing in late October 2013, and responded by advising that he would not be present. In mid November 2013 he again emailed the High Court and confirmed that he would not participate in what he termed “a rigged spectacle”. I shall not dignify other assertions and opinions expressed in Mr Krieger’s email, by repeating them in this

_judgment.

¹⁹ s 25(3) New Zealand Bill of Rights Act 1990.

[57] Extensive affidavit evidence has been provided in proof of the Solicitor- General’s application. As I trust is evident from the terms of the judgment, that evidence, including documents and emails from Mr Krieger, is sufficient to formally prove the contempt beyond reasonable doubt.

Penalty

[58] Committal is not sought, rather the imposition of a fine. This obviates any difficulty in relation to imposing a sentence of imprisonment in a defendant’s absence.

[59] The purpose of punishment for contempt was explained in Solicitor-General v Siemer:²⁰

The objective of the summary process in contempt of court proceedings is to protect the ability of the Courts to exercise their constitutional role of upholding the rule of law. Effective administration of justice under our constitution requires that the orders of the Courts are obeyed unless properly challenged or set aside. Public confidence in the administration of the law, also necessary for its effective administration, recognises that there is a strong expectation that those who ignore court orders are quickly brought to account.²¹

Hence, the main purpose of a punishment for contempt is upholding the rule of law. Deterrence, therefore, is an important consideration. I must also consider the objective seriousness of the relevant conduct, the personal culpability of the defendant, his means, and any personal aggravating or mitigating factors.

[60] To my mind the most difficult question lies in assessing the objective seriousness of the contempt. Mr Krieger deliberately provided hyperlinks to enable others to access information confidential to EQC. The spreadsheet contained considerable details, but in essence the confidential or sensitive information was the repair estimate adopted by EQC for each claimant’s house repairs as at September

2012. I find it difficult to judge what harm has resulted from disclosure of this

_information.

²⁰ _{Solicitor-General v Siemer [2010] 3 NZLR 767 (SC).}

²¹ At [42].

[61] EQC does not operate a competitive tender process. If repair contractors were told the amount of EQC’s repair estimate, they would be unlikely to quote under this figure. If EQC’s repair estimates were conservative, then repair contractor’s knowledge of the figures would not seem to be harmful. There is no evidence from EQC concerning the impact of the breach. Perhaps evidence of the impacts is unavailable.

[62] Mr Krieger’s personal culpability is high. Aware of the Court orders, he deliberately flouted them. He arrogantly considered that his assessment of matters was superior and that it should therefore prevail.

[63] There is little information before me concerning Mr Krieger’s personal circumstances, including his means. He is obviously an educated person, well able to appreciate the terms of the Court’s orders that he elected to deliberately defy.

[64] In my view this was an obvious contempt involving a course of conduct over some period of time. I consider the appropriate penalty is a fine of $5,000.

Costs

[65] The Solicitor-General seeks indemnity costs. The better course is to reserve this aspect so that a memorandum may be filed including as to the approach taken in previous contempt proceedings. Mr Krieger, should he deign to do so, may respond.

Solicitors:

Crown Law, Wellington

Copy to Respondent