B v District Court at Palmerston North

[2021] NZHC 2484

ORDER PROHIBITING PUBLICATION OF NAMES OF THE PARTIES.

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE PAPAIOEA ROHE

CIV-2021-454-11

[2021] NZHC 2484

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER OF

a decision on application for access to District Court documents

BETWEEN

B

Applicant

AND

DISTRICT COURT AT PALMERSTON NORTH

Respondent

On the Papers

Counsel:

Applicant in person

B A Vanderkolk as Counsel Assisting

Judgment:

22 September 2021

JUDGMENT OF GWYN J

(Name suppression)

[1]    On 26 August 2021 I heard B’s application under the Judicial Review Procedure Act 2016 for a review of the District Court’s decision to release documents relating to criminal proceedings against B, pursuant to the District Court (Access to Court Documents) Rules 2017 (the Rules). B was discharged without conviction in the criminal proceedings. The application for release of documents under the Rules was brought by T and B says that the material which the Court ordered disclosed included matters that may be relevant to criminal and/or civil proceedings threatened by T against B in another jurisdiction.

B v DISTRICT COURT AT PALMERSTON NORTH [2021] NZHC 2484 [22 September 2021]

[2]    In my judgment of 13 September 2021 (the judgment), I found that the District Court had not had regard, or sufficient regard, to a matter relevant to the exercise of the Court’s discretion under r 12 of the Rules and referred the matter back to the District Court for a reconsideration of the request for documents. The relevant matter was concerned with the protection of B’s confidentiality and privacy interests.

[3]    Since the release of my judgment, B has sought suppression of his name from the judgment, pursuant to the Court’s inherent jurisdiction. The basis for B’s application is that the judgment includes details about matters which have not yet been tested or decided and that distribution of the judgment will cause speculation and hardship for B in terms of employment and professional prospects. He also expresses his concern that it may have a negative impact on his integration into a small community.

[4]    Counsel assisting the Court at the hearing of this matter, Mr Vanderkolk, has filed a memorandum in response to B’s application. Mr Vanderkolk notes that the Supreme Court in Erceg v Erceg1 set a high bar, requiring the party seeking exercise of the Court’s discretion to grant name suppression in a civil context to show specific adverse consequences sufficient to justify an exception to the general rule of open justice. In counsel’s submission, B’s situation does not meet that high threshold.

[5]T was advised of B’s application but has not expressed a view on it.

Discussion

[6]    The balancing exercise between open justice considerations and the interests of the party who seeks suppression is necessarily case dependent. Although Erceg v Erceg sets a high bar, it does not require extraordinary circumstances. As the Court of Appeal said in Y v Attorney-General, in some cases there may be very little or no legitimate public interest in knowing the name or identifying particulars of the parties or knowing particular details of the case, for example where the information is intensely private or personal. 2

1      Erceg v Erceg [2016] NZSC 135.

2      Y v Attorney-General [2016] NZCA 474, [2016] NZFLR 911, at [32].

[7]    The timing, nature, extent and duration of the suppression sought is also relevant. Interim, rather than permanent, suppression is more likely to be granted.3

[8]    The underlying New Zealand offending to which this matter relates was not the subject of name suppression; nor was the District Court’s judgment on the application for release of documents under the Rules. While that is not determinative, it does have a bearing on my decision because it means that B’s name and the offending with which he was charged, and ultimately discharged without conviction, is already a matter of public record. As B submits, the interests of open justice in respect of the criminal proceedings have already been served. B says that, to some extent, the consequences which he fears from publication of the judgment have already occurred in the context of the criminal proceedings.

[9]    On the other hand, although the judgment arises out of the criminal offending, it is essentially a technical judgment, concerned with the interpretation and application of the Rules in particular circumstances. To the extent that may be considered a question of public interest, or have precedent value, it does not depend on identification of the parties. There is little or no legitimate public interest in knowing the names or identifying details of the parties in this context.

[10]   I have also considered whether the specific confidentiality and privacy interests involved in the District Court’s reconsideration of the application under the Rules weighs in favour of suppression. I have some sympathy for B’s view that the reconsideration will necessarily include some additional, untested matters, not part of the criminal proceedings in New Zealand, but likely to arise in the foreign proceedings. I also accept that the nature of the threatened proceedings and the extent to which they may be open to abuse is little known and understood in New Zealand and that might exacerbate the negative impact on him if his name is not suppressed.

[11]   Counsel assisting noted that B’s application for suppression expressed a generalised concern about the impact of publication, but did not provide evidence of any specific, adverse consequences of publication.4 Subsequently B has responded

3 At [34].

4      Erceg v Erceg, above n 1, at [13] and [21].

providing a specific example of the impact on him to date of publication of the criminal proceedings.

Result

[12]   Ultimately, I am satisfied that it is appropriate to grant suppression of B’s name on an interim basis. Given that, I have concluded that it is also appropriate to anonymise T’s name. It will be for the District Court to decide whether suppression continues beyond its reconsideration of the application under the Rules.

[13]   B’s application for suppression of his name is therefore granted. I have reissued an anonymised version of the judgment accordingly.

Gwyn J

Solicitors:

Crown Law, Wellington

BVA The Practice, Palmerston North