Barry v Harris
[2025] NZHC 711
•31 March 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-833
[2025] NZHC 711
UNDER the Property Law Act 2007 IN THE MATTER
of an application for an order under
section 339 of the Property Law Act 2007
BETWEEN
CAMPBELL NICHOLAS BARRY AND LAURA JANE BARRY
Plaintiffs
AND
ERNEST JOHN HARRIS
First Respondent
DEBRA ANN HARRIS
Second Respondent
Hearing: On the Papers Counsel:
D G Dewar for Plaintiffs
P R C Reid for First Respondent Second Respondent in person
Judgment:
31 March 2025
JUDGMENT OF McQUEEN J
[1] This proceeding concerns an application under the Property Law Act 2007 by the plaintiffs, Mr and Mrs Barry. They seek an order that property in which they and the respondents, Mr Harris and Ms Harris, own half-shares as tenants in common (the Property) be divided on terms by which Mr and Mrs Barry acquire the title of Mr Harris and Ms Harris at current market value (the substantive application).
[2] When the proceeding was commenced in December 2024, Mr and Mrs Barry also applied on a without notice basis for an order prohibiting the publication of the
BARRY AND BARRY v HARRIS [2025] NZHC 711 [31 March 2025]
names of the parties to this proceeding, or any particulars likely to identify them, such as their addresses and occupations, and an order preventing search of the Court file without leave of a Judge.
[3] By a minute dated 18 December 2024, Boldt J made a non-publication order expiring on 14 February 2025, unless renewed by a Judge. On 12 February 2025, La Hood J directed that the parties file and serve affidavits and submissions regarding the continuation of the non-publication order. The non-publication order was continued pending determination of the application.
[4] Mr and Mrs Barry have filed their evidence and submissions in support of their application. Mr Harris supports the application. Ms Harris has not filed submissions but has filed an affidavit and sent to the Court and other parties a lengthy email which responds to issues raised in Mr and Mrs Barry’s evidence, from which it is plain she opposes a non-publication order.
[5] Following the call of this matter in the Judge’s Chambers List on 10 March 2025, Grau J directed that the application for continuation of non-publication orders be referred to a Judge for determination on the papers.
Background
[6] Mr Barry is the Mayor of Lower Hutt. Mrs Barry is a lawyer practising in Lower Hutt. Mr and Mrs Barry, together with Mr Harris and Ms Harris, purchased the Property in 2019. Mr Harris and Ms Harris are the parents of Mrs Barry. Mr Harris and Ms Harris have separated. Proceedings have been underway in the Family Court since 2022 to resolve their relationship property matters. It is the Property that is the subject of the substantive application in this proceeding. The Family Court does not have jurisdiction to divide the Property in the manner sought by Mr and Mrs Barry, necessitating the application to this Court.
[7] Mr and Mrs Barry have both filed affidavits in support of their application for a non-publication order. I do not need to set out the detail of their evidence for the purposes of this application. It may be briefly summarised as follows.
[8] Mr and Mrs Barry are concerned that if their names are published in connection with this proceeding, it is likely they will be subject to politically motivated harassment. They say that Mr Barry has been the victim of an unpleasant campaign, which includes both anonymous online abuse and anonymous and baseless complaints to Government agencies, designed to discredit him. This has occurred in the context of the breakdown of the relationship between the Barrys and Ms Harris, following the separation of Mr Harris and Ms Harris.
[9] Mr and Mrs Barry say that Ms Harris has aligned herself with Mr Barry’s political opponents, naming two individuals. They say that Ms Harris was aware, before the family disharmony, that these two individuals were active opponents of Mr Barry. They say that one of those persons commenced a social media campaign against Mr Barry in 2020 that was at times vicious and personal. Ms Harris has now given that person a power of attorney. Mr and Mrs Barry say that Ms Harris is sharing information about their family dispute over the Property with that person. They also give evidence about posts Ms Harris has made on an online platform. In these posts, Ms Harris comments on her health challenges and says that her family (without naming Mr and Mrs Barry directly) are not supporting her and are instead trying to remove her from the Property.
[10] Evidence has been provided which shows that the second person with whom Ms Harris is said to have aligned herself (although Ms Harris denies this) is the host of a page on an online platform that contained offensive and defamatory material about Mr Barry, which has now been shut down following an order by the District Court under the Harmful Digital Communications Act 2015.1
[11] Mr and Mrs Barry depose to the distress these matters have caused them. Mr Barry says he accepts that in this day and age, he must, as a politician, expect personal attacks and insults. But he says that he does not believe that attacks on members of a politician’s family and the broadcasting of private family information has ever been tolerated in any level of politics. Mrs Barry asks in her affidavit for the
1 The District Court also made an order prohibiting publication of the parties to the proceeding and any identifying particulars and for that reason I provide no further details of the decision.
Court to make orders prohibiting Ms Harris and others from publishing statements about this proceeding.
Legal principles relating to suppression in civil proceedings
[12] In Erceg v Erceg, the Supreme Court emphasised that the principle of open justice is fundamental to the common law system of civil and criminal justice.2 The rationale behind the principle is that court proceedings are transparent to maintain “public confidence in the administration of justice by guarding against arbitrariness or partiality, and suspicion of arbitrariness or partiality, on the part of courts”.3
[13] In A Ltd v C Ltd, Mander J helpfully set out the following summary of suppression principles in civil cases:4
The power to suppress the names and identifying particulars of parties and witnesses involved in civil proceedings, or other details of such cases, is found in the inherent jurisdiction of this Court. The starting point in approaching the issue is the principle of open justice and the related freedom of expression guaranteed by s 14 of the New Zealand Bill of Rights Act 1990. Together, those two tenets create a presumption of disclosure that is to apply in respect of civil court proceedings.
Because of the importance of the principle of open justice, a court will need to have sound reasons for finding that the presumption favouring publication is displaced. However, there is no onus or burden on an applicant seeking suppression to justify that step. The question is simply whether the circumstances justify an exception to the fundamental principle of openness. No particular threshold is required to be met.
In Y v Attorney-General, the Court of Appeal endorsed its earlier approach in Jay v Jay, that “extraordinary circumstances” are not required to justify suppression in a civil case. However, the threshold remains a high one because any suppression order necessarily derogates from the principle of open justice and the right to freedom of expression. The correct approach requires the Court to “strike a balance between open justice considerations and the interests of the party who seeks suppression”.
Because of the “limitless variety” of civil cases, each of which will be factually different from the other, the balancing exercise must necessarily be case dependent. Sometimes there will be a significant and legitimate public interest in knowing the names of the people involved in a case, be they the parties or witnesses, or of knowing about the detail of the case. In illustrating that point, the Court of Appeal, in Y v Attorney-General, referred to the usually
2 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2].
3 At [2].
4 A Ltd v C Ltd [2018] NZHC 3433 at [9]–[13] citing Y v Attorney-General [2016] NZCA 474, [2016] 23 PRNZ 452; and Jay v Jay [2014] NZCA 445, [2015] NZAR 861 (footnotes omitted).
high public interest in knowing the names of professional practitioners facing charges in disciplinary proceedings. That it is to be compared with the likely limited legitimate public interest in knowing the name or identifying particulars of parties or of details of cases where the information is intensely private or personal or is considered confidential or commercially sensitive.
Further considerations to be taken into account are how central the information sought to be suppressed is to understanding the nature of the proceeding and what it is that the Court has decided. There will be a stronger presumption favouring disclosure where such detail is required in order for the public to understand what the Court has decided and why. Different considerations will also apply depending upon what is sought to be suppressed and the stage which the proceeding has reached. Suppression is more likely to be granted on an interim basis at an interlocutory stage of a proceeding. The Court will likely be better placed to assess the need for permanent suppression after it becomes familiar with the particular details of the case at trial.
Parties’ positions
[14] Counsel for Mr and Mrs Barry, Mr Dewar, submits that the non-publication order is not sought to protect Mr Barry’s political life but because this is a private family issue. He says that this itself ought to be enough to warrant non-publication orders at least until determination of the substantive application when the Court can reassess the position.
[15] Mr Dewar submits that there is a compelling case for an order based on the actions of Ms Harris and the exploitation of the private family issue by others, including the online harassment and abuse of Mr and Mrs Barry. Mr Dewar submits that Ms Harris has acted in association with two persons who are political figures and strong critics of Mr Barry. Mr Dewar also relies on the commentary that has been posted by Ms Harris about her family through an online platform. Mr Dewar says that Ms Harris’ associate has also used the platform to anonymously attack both Mr and Mrs Barry.
[16] Mr Dewar submits that the wholesale intrusion into personal family affairs for political advantage, which has been happening to Mr Barry, has potential for wider harm as our communities need political leaders and if such attacks like that which Mr Barry has endured are allowed to remain unchecked, they will stand as a disincentive to responsible society members who might otherwise seek public office.
[17] Mr Dewar further says that while Mr Barry is a politician and subject to public scrutiny, Mrs Barry is not and nor is her father, Mr Harris. Mr Dewar notes particularly that Ms Barry is a family law specialist and should not be subjected to the shame of the public attacks made on her which, apart from obvious emotional harm, also greatly detract from the dignity and respect she ought to have in the diligent pursuit of her career and business.
[18] Mr Harris supports the application for a non-publication order. While no affidavit has been filed from Mr Harris, counsel for Mr Harris, Mr Reid, says in a memorandum that Mr Harris is also a victim of the online abuse sustained by Mr and Mrs Barry, including the allegation that Mrs Barry is a “corrupt” lawyer. Mr Reid says this has already been particularised in an affidavit from Mr Harris tendered in the Family Court proceeding.
[19] Ms Harris opposes the application for a non-publication order. Ms Harris has not filed any submissions as such but, as mentioned, she has filed an affidavit and email which respond to the points raised by the other parties. Ms Harris’ affidavit says that her relationship with Mrs Barry disintegrated because of disagreements about the Property. Ms Harris denies that she is part of any campaign against Mr and Mrs Barry. In particular, she says she has never met one of the persons identified by the Barrys as responsible for some of the online abuse against Mr Barry. As for the other person, Ms Harris says that she met them in 2023 and has become a friend of them and their family but refutes that she is “aligned” with them. Ms Harris says that she has appointed this person as her attorney to help her as she faces her health challenges and because she has no support from her family. She considers it is wrong for Mr and Mrs Barry to attempt to suppress her rights to associate freely and enjoy free speech.
Is a non-publication order justified?
[20] A non-publication order may be made where there are circumstances in which the interests of justice require that the general rule of open justice be departed from, but only to the extent necessary to serve the ends of justice.5 There must be specific adverse consequences that are sufficient to justify an exception to the fundamental
5 Erceg v Erceg, above n 2, at [3].
principle that justice should be administered in open court, subject to the full scrutiny of the media.6
[21] I accept that a family dispute of the kind underpinning this proceeding would be distressing for most people and the evidence establishes that this is the case for Mr and Mrs Barry (and in fact for Ms Harris and Mr Harris). Nonetheless, the application for division of property under the Property Law Act is a conventional matter and frequently arises where property owners, sometimes family members, are unable to resolve a dispute over how the land should be divided. The fact these proceedings concern a family-owned property and is therefore private in the sense the dispute arises in the family sphere is not on its own justification for a non-publication order.
[22]The Supreme Court’s comment in Erceg v Erceg is apposite here:7
… the courts have declined to make non-publication or confidentiality orders simply because the publicity associated with particular legal proceedings may, from the perspective of one or other party, be embarrassing (because, for example, it reveals that a person is under financial pressure) or unwelcome (because, for example, it involves the public airing of what are seen as private family matters).
[23] I compare the present application with the circumstances in Y v Attorney-General, where the Court of Appeal made an order suppressing publication of a witness’ name or identifying particulars where the witness was to give evidence about the abuse and ill treatment they experienced while in state care.8 The Court of Appeal, in stepping through the balancing exercise required in such cases, said that while there was clearly a public interest in the allegations made the public interest did not extend to knowing the identity of the witness or the others who were allegedly abused. There was also concern that the witness would face retaliation for giving evidence if named in the proceedings, and there was a firm evidentiary basis from a forensic psychiatrist that name suppression was necessary to avert further psychological damage and distress. These circumstances are markedly different to the present circumstances.
6 At [13].
7 At [13] (emphasis added).
8 Y v Attorney-General, above n 4.
[24] The fact that Mr Barry is a public figure is also not a sufficient reason to displace the presumption of open justice, on the evidence before me. While I accept that Mr Barry’s role undoubtedly makes him of greater public interest, this in itself does not mean a non-publication order should be granted. I am not persuaded by Mr Dewar’s submission that refusal to make a non-publication order in this case will deter people from seeking public office. As Boldt J explained in his Minute in this proceeding, the courts must be acutely conscious of the need to avoid inhibiting political discourse and ensuring there is no suggestion political figures are being shielded from public scrutiny.9 In the ordinary course of events, Mr Barry’s involvement in this litigation would be in the public domain and subject to public comment. Something more is required than a well-founded fear that the proceeding will be “spun” to his political detriment.
[25] A specific concern for Mr and Mrs Barry is Ms Harris’ apparent willingness to discuss her views on the family dispute with others, including by posting online. This is exacerbated by Ms Harris having chosen to seek support from a person who they regard as Mr Barry’s political opponent and strong critic. This Court cannot make an order that purports to stop Ms Harris from discussing the family dispute with her friends. Nor is it for this Court to dictate from whom Ms Harris may seek support as she deals with the family dispute.
[26] Mr and Mrs Barry’s other concern is that without a non-publication order information arising in these proceedings is likely to be misused to further victimise them.
[27] I consider there are other legal remedies potentially available to Mr and Mrs Barry that are likely more appropriate to respond to their fundamental concerns about misuse of information from the proceeding and online abuse. Such avenues may include taking steps under the Harmful Digital Communications Act and the Harassment Act 1997. Making a claim of defamation may also be open to Mr and Mrs Barry if the circumstances support it.
9 Barry v Harris HC Wellington CIV-2024-485-833, 18 December 2024 at [8] (Minute of Boldt J).
[28] I note particularly that any person who is inclined to make public comments about Mr or Mrs Barry and the family should bear in mind the communication principles set out in the Harmful Digital Communications Act, which include principles that a digital communication should not disclose sensitive personal facts about an individual, be used to harass an individual nor make a false allegation.10 The Harmful Digital Communications Act empowers the District Court to make a range of orders in relation to digital communications.11 That Act also creates criminal offences for non-compliance with such orders and causing harm by posting a digital communication, for which the penalties include imprisonment and fines.12
[29] The law also provides litigants with a degree of protection from public statements or publications that are unfair and intemperate, where those comments can be seen to have a real likelihood of inhibiting a litigant of average robustness from availing their right to have their case determined by the Court.13 Mr and Mrs Barry have the right to access the court process for determination of their dispute free from intimidation or threat.14 Anyone making comments of this kind may be in contempt of court.
[30] In all the circumstances, I am not satisfied that the specific adverse consequences identified by Mr and Mrs Barry are sufficient to justify an exception to the principle of open justice and the right to freedom of expression. As I have said, the breakdown of family relationships will almost always cause distress to those involved. Public discussion of such a breakdown, with the inevitably differing perspectives on the events and causes, will also likely be upsetting. But as is clear from Erceg, this category of cases does not automatically receive any enhanced protection from public scrutiny.
10 Harmful Digital Communications Act 2015, s 6.
11 Sections 18 and 19.
12 Sections 21 and 22.
13 Attorney-General v Times Newspapers Ltd [1974] AC 273 (HL) at 307; Solicitor-General v Smith
[2004] 2 NZLR 540 (HC) at [41]–[44].
14 See Duff v Communicado Ltd [1996] 2 NZLR 89 (HC) at 96; and Solicitor-General v Smith, above n 13.
[31] Accordingly, the presumption in favour of open justice is not outweighed by the adverse consequences identified for Mr and Mrs Barry and I decline to make the non-publication order sought.
Application for order prohibiting search of the Court file
[32] No submissions were made by any party addressing the application for an order prohibiting search of the Court file without leave of a Judge. Nonetheless, I consider I may readily determine this application.
[33] Access to documents in the Court file is governed by the Senior Courts (Access to Court Documents) Rules 2017 (the Rules).
[34] Under r 8(1), every person has access to the formal court record relating to a civil proceeding. The formal court record is defined in r 4 and includes any judgment, order or minute of the court, including any record of reasons given by a Judge.
[35] Where a person is not entitled to access a document under r 8 of the Rules, they may ask to access any document by making a written request to the Registrar under r 11(2). The requestor must give reasons for asking to access the document, which must set out the purpose for which the access is sought.15 The Registrar must promptly give a copy of the request to the parties to the proceeding, or to their lawyers, and a party may object to the request.16 The Judge dealing with the request may grant it in part or in whole (with or without conditions), refuse it, or direct that a Registrar determine it.17 Rule 12 sets out the matters the Judge must consider in determining a request for access under r 11, and r 13 provides the approach the Judge must have regard to in balancing those matters.
[36] Given my decision not to make a non-publication order, and the controls on access to documents under the Rules, I do not consider it necessary to make an order that the court file not be searched without leave of a Judge.
15 Senior Courts (Access to Documents) Rules 2017, r 11(2)(c).
16 Rule 11(3) and sub-r (5).
17 Rule 11(7).
Result
[37] The plaintiffs’ application for orders prohibiting publication of the names and particulars of the identities of the parties to this proceeding and search of the court file without leave of a Judge is declined.
[38] I direct that the non-publication order is to expire at midday on Friday 4 April 2025.
McQueen J
Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt for Applicants Reids Family Law, Lower Hutt for First Respondent
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