A v Minister of Internal Affairs

[2017] NZHC 965

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2017-485-032 [2017] NZHC 965

UNDER

the Judicature Amendment Act 1972 and

Part 30 of the High Court Rules

IN THE MATTER OF

an application for judicial review of the suspension and cancellation of a passport

BETWEEN

A Applicant

AND

MINISTER OF INTERNAL AFFAIRS Respondent

Hearing:	On the Papers
Appearances:	Applicant in person A L Martin and K G Stone for respondent
Judgment:	12 May 2017

JUDGMENT (NO. 3) OF DOBSON J

[1]      I issued a second interlocutory judgment in this judicial review proceeding on

4 May 2017.   It dealt with the prospect of the applicant requiring leave to appeal from my first interlocutory judgment, and if so the considerations in favour of a grant of leave, the consequential stay of the proceedings, how a separate proceeding commenced by the respondent might be managed, and restrictions on search of the court file.

[2]      Within  hours  of  its  issue,  the  applicant  applied  for  a  prohibition  on publication  of  the  whole  judgment.     She  submitted  that,  because  my  first interlocutory judgment was initially issued without anonymisation, journalists had

been able to trace her and she faces disruption in her personal and work life because

A v MINISTER OF INTERNAL AFFAIRS [2017] NZHC 965 [12 May 2017]

of ongoing harassment.  She is also concerned about irreparable loss of reputation and potential threats to her employment.

[3]      On 11 May 2017, the respondent filed a memorandum in response to that of the applicant seeking prohibition on publication.  The respondent abides the decision of the court on the application for a ban on publication of the 4 May 2017 judgment. The respondent emphasised that there should be no suggestion that the respondent was seeking any limitation on publication of the judgment once the  applicant’s identity was  anonymised.   This assumes  some relevance  given the respondent’s reliance on ss 29AA to 29AC of the Passports Act 1992, providing for parts of the proceeding to be conducted in a closed court procedure.  The memorandum helpfully reviews the considerations that ought to guide the court’s decision in what is essentially a balance between the important interests of public justice, and particular prejudice to a party to litigation arising from publication.  The point is emphasised that where a measure of non-publication is found to be justified, a nuanced approach is  required  to  tailor  the  prohibition  on  publication  to  no  greater  extent  than  is

required to address the legitimate concerns.1

[4]      There are a number of case-specific considerations in this litigation bearing on the balancing of interests I am required to undertake.  First, the applicant did not apply for anonymisation of her identity until after my first judgment was originally issued on 13 April 2017.  Having accepted her application for anonymisation, that judgment was reissued on 24 April 2017 including an explanation for the reasons for doing so.  No instances of breach by accredited media of the anonymisation order since it was made have been drawn to my attention.

[5]      Secondly, sufficient interest in the original judgment, prior to anonymisation of the applicant, creates a meaningful risk of substantial adverse impact on  the applicant’s personal and professional reputation, given the reasons relied on by the respondent for cancelling her New Zealand passport.  There is a strong interest in minimising that prospect whilst the applicant’s challenge to the justification for the

decision remains unresolved.

1      See for example Erceg v Erceg [2016] NZSC 135 at [3] and [6].

[6]      Thirdly, the nature of the respondent’s originating application that has now been filed raises the prospect of adding to the adverse impressions of the applicant. However, discretely from the identity of the applicant, the manner in which that separate  proceeding  is  to  be  managed  is  of  itself  a  matter  of  legitimate  public interest.

[7]      Balancing these considerations, I am not satisfied that a total prohibition on publication of the 4 May 2017 judgment is warranted. The most effective measure in addressing her concerns was anonymisation, which was ordered promptly after her application for that to occur.   However, the nature of the relief sought in the respondent’s related originating application is not presently a matter on which there can be significant legitimate public interest.   At this stage, any such interest is outweighed  by  the  applicant’s  concern  to  contain  the  prospects  for  irreparable damage to her reputation.

[8]      I am accordingly reissuing the 4 May 2017 judgment, suppressing detail of the nature of the relief sought in the respondent’s originating application.

[9]      The respondent’s memorandum has also pointed out an error in the dates used at [5] of the 4 May 2017 judgment.   As issued it stated that the Judicial Review Proceedings Act 2016 and the Senior Courts Act 2016 came into force on 1 March

2016  whereas  that  date  should  be  1  March  2017.    Similarly,  the  transitional provisions  address  judicial  review  proceedings  that  were  commenced  prior  to

1 March 2017, and not 2016 as stipulated in the judgment.  In reliance on the slip rule, I am reissuing the judgment with those dates corrected.

Dobson J

Solicitors:

Crown Law, Wellington for respondent

Copy to: Ms A