A v Attorney-General

[2013] NZHC 1114

NO PERSON OTHER THAN THE PARTIES TO THE PROCEEDING OR THEIR COUNSEL MAY HAVE ACCESS TO ANY DOCUMENTS ON THE COURT FILE WITHOUT THE PERMISSION OF A JUDGE.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-522 [2013] NZHC 1114

UNDER  the Judicature Amendment Act 1972

IN THE MATTER OF     an investigation by Paula Rebstock into possible unauthorised disclosure of information about the Ministry of Foreign Affairs and Trade

BETWEEN  A Applicant

ANDHER MAJESTY'S ATTORNEY- GENERAL

First Respondent

PAULA REBSTOCK Second Respondent

On papers

Judgment:      15 May 2013

ADDENDUM TO JUDGMENT OF DOBSON J

[1]      My judgment in the terms issued with this addendum but without redactions was released on a counsel only basis on 7 May 2013.  I embargoed any publication of the judgment until 5pm on 9 May 2013 to afford the parties an opportunity to make submissions on any different scope of on-going suppression orders, from my

directions in [96] to [101] of the judgment.

A v ATTORNEY-GENERAL HC WN CIV-2013-485-522 [15 May 2013]

[2]      Because of unforeseen difficulties for the respondents in taking instructions on any response in relation to suppression, I acceded to a request that the period of embargo be extended until 5pm on 15 May 2013.

[3]      By memoranda dated 13 and 15 May 2013, counsel for A sought continuation of interim orders I had made prior to the substantive hearing of A ’s judicial review, until  determination  of  an  appeal  to  the  Court  of  Appeal  which  A  has  now commenced.  A also sought suppression of my judgment in its entirety, pending further order of the Court of Appeal.

[4]      The interim orders prohibited Ms Rebstock from presenting her completed report to the State Services Commissioner (the Commissioner) and prevented publication of any details that might lead to A being identified.   That prohibition extended to any references to where A had been working at the time of the conduct that  was  the  subject  of  Ms Rebstock’s  investigation,  where  he  had  previously worked, and his present location.  Of these details, my judgment had determined that (subject to alternative extents of protection of his anonymity raised in additional submissions from the parties) where A had worked prior to the time in question and where he was working at that time were details that should not continue to be suppressed.  My reason for permitting disclosure of those details was to enable the reasoning in my judgment to be understandable by reference to the factual context in which the relevant events had occurred.

[5]      The respondents opposed any continued restraint on Ms Rebstock completing her report and providing it to the Commissioner, in a manner that was consistent with the dismissal of A’s claimed grounds for judicial review.   The respondents also opposed any on-going suppression of the terms of my judgment, proposing instead that A’s anonymity be preserved pending determination of his appeal to the Court of Appeal by deletion of all the references to where he had previously worked, and was working at the time of the events in question. The memorandum for the respondents identified the extent to which such redactions would be required.   The reply memorandum on behalf of A, whilst objecting in principle to dealing with the matter in that way, has not identified any additional passages of the judgment which it is suggested should be redacted because they might lead to identification of A.

[6]      I am not satisfied that preservation of A’s position pending determination of his appeal still requires a prohibition on Ms Rebstock completing her report and submitting it to the Commissioner, if that is to occur in the more narrow of the two alternative circumstances I contemplated in my judgment.   That is, if the Commissioner calls for the report to be finalised and presented to him on a basis that the parts addressing A’s position and which might lead to A being identified would remain entirely confidential to the Commissioner.

[7]      If indeed the report is to be concluded and presented on those terms, it would be artificial to prevent that step occurring.  A draft in the form considered in the proceeding is already available to the Commissioner.  A’s identity is known to the Commissioner.  The parts referring to A anonymise him and the utility of other, unrelated, parts of the report to the Commissioner would needlessly be eroded by preventing the report being presented to the Commissioner.  I am not satisfied that A has raised any countervailing argument as to prejudice arising from the report being completed and delivered in these restricted circumstances. Mr McHerron argued that there would only be “minor inconvenience” from a “further small delay”.  However, preventing completion of a report, requested a year ago for prompt completion and only part of which relates to A, until determination of A’s appeal would involve more than a further small delay, and cause significantly more than minor inconvenience to the respondents.

[8]      The risk of A being identifiable by interested members of the public would arise principally from the publication of my judgment in its form that identifies where A worked at the time, and had previously worked.  My rationale for including those details in the judgment as released to counsel was because an understanding of the reasons for the judgment is impaired without those details.   However, A’s legitimate interests in preserving his position so as not to render any success he might have on appeal nugatory do justify the suppression of those details until the appeal is resolved.

[9]      Accordingly, I am reissuing the judgment with all the redactions proposed on behalf of the respondents, and subject to the same restriction on publication of any

details that might lead to the identification of A, which is to remain in place until further order of this Court or the Court of Appeal.

[10]     In  the  event  that  the  Commissioner indicates to  Ms Rebstock that  he  is prepared to receive the report on the basis that the parts making any reference to A or that might lead to his being identified will remain confidential to the Commissioner, then Ms Rebstock is not constrained from completing the report and submitting it to the Commissioner strictly on those terms.

Costs

[11]     My judgment indicated a provisional view that costs should lie where they fall.   Neither side accepted that entirely.   For A, Mr McHerron accepted that an award of costs should not be made, but sought reimbursement of the filing fees that A has incurred.   That  outcome was  opposed  on  behalf of  the respondents and Ms Jagose has argued that the essential aspects of Ms Rebstock’s conduct have been upheld, leading to an entitlement for an award of costs in favour of the respondents.

[12]     I am not persuaded by either submission.  I confirm my provisional view that costs are to lie where they fall.

Dobson J

Solicitors:

Lee Salmon Long, Auckland for applicant

Crown Law, Wellington for respondents