Auckland District Health Board v E

[2013] NZHC 2354

FILE IS NOT TO BE SEARCHED WITHOUT LEAVE OF A HIGH COURT JUDGE.

IN THE HIGH COURT OF NEW ZEALAND [NAME OF REGISTRY] REGISTRY

CIV-2013-404-3906 [2013] NZHC 2354

IN THE MATTER             of an application pursuant to section 31 of the Care of Children Act 2004 to place a child under the guardianship of the Court

AND

IN THE MATTER             of A

BETWEEN  AUCKLAND DISTRICT HEALTH BOARD

Applicant

ANDE Respondents

Hearing:                   10 September 2013 (on the papers) Judgment:   10 September 2013

JUDGMENT OF WINKELMANN J

This judgment was delivered by me on 10 September 2013 at 3.00 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

A v E Media application [2013] NZHC 2354 [10 September 2013]

[1]      Fairfax Media makes application for access to this file.  In this proceeding the Auckland District Health Board applied under s 31 of the Care of Children Act 2004 to place the child “A” under the guardianship of the Court, so that consent could be given for life saving medical treatment for her.  At the conclusion of the judgment I recorded that the identity of “A” and her parents was suppressed, by operation of s 139 of the Care of Children Act.  I made other incidental suppression orders.  I also directed that there be no search of the Court file without leave of a Judge.

[2]      In support of its application Fairfax Media says it wishes access the file to allow preparation of a news report. The parents of the child oppose the application.

[3]      Rule 3.9 of the High Court Rules governs this application.   Rule 3.9(2) effectively creates a presumption in favour of access (Rule 3.9(2)) but with the proviso that a Judge may direct that a file or document not be accessed (Rule 3.9(3)

& (6)).

[4]      In considering any application for access to a court file it is important to weigh carefully the principle of open justice and the need to encourage fair and accurate reporting of and comment on Court hearings and decisions.   Also to be weighed is the right preserved in s 14 of the New Zealand Bill of Rights Act 1990 to seek, receive and impart information and opinions of any kind in any form.  As to these considerations I note that the media were allowed access to this hearing (which was listed on the public record of the Court’s business for that day), and have access to the (anonymised) judgment which narrates the relevant medical information, describes the nature of the application and analyses the legal issues arising.

[5]      I weigh against the grant of access to the file the privacy interests of the child “A” and her parents.  Granting access without rights of publication would not be a breach of s 139, but it would nevertheless allow access for the reporter or reporters to detailed medical information in which both “A” and her family have considerable privacy interest.

[6]      For these reasons I have determined that the interests of open justice and freedom of expression have been appropriately observed in this case by the access to

information already granted to the media.   The privacy interests of “A” and her family are decisive against the grant of further access.  Fairfax Media’s application in this case is declined.