Chatwin v APN News and Media Ltd - [2014] NZHC 11

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-78 [2014] NZHC 11

BETWEEN SARA CHATWIN Intended Plaintiff
ANDAPN NEWS AND MEDIA LTD Intended Defendant

Hearing: 17 January 2014

Counsel: N Tabb for Intended Plaintiff
A Ringwood for Intended Defendant

Judgment: 17 January 2014

Reasons: 20 January 2014

REASONS FOR JUDGMENT OF KATZ J

Solicitors: N Tabb, Auckland
Bell Gully, Auckland

CHATWIN v APN NEWS AND MEDIA LTD [2014] NZHC 11 [17 January 2014]

Introduction

[1] At 4:00 pm on Friday, 17 January 2014, the intended plaintiff, Sara Chatwin, made an oral application, at short notice, for an interim injunction restraining the intended defendant, APN News and Media Ltd (“APN”), from publishing an article regarding her extended family. Ms Chatwin’s understanding was that such an article was likely to be published in the Herald on Sunday newspaper this weekend.

[2] Given the urgency, the matter proceeded orally. Mr Ringwood was able to appear on short notice for the intended defendant, to assist the Court on a “Pickwick” basis.

[3] After hearing from counsel for both intended parties I declined the injunction application, with written reasons to follow. My reasons for declining the injunction application are set out below.

Submissions for Ms Chatwin

[4] Ms Tabb, for Ms Chatwin, outlined the relevant factual background. Ms Chatwin was in Court and available to give evidence if required, however this did not prove to be necessary.

[5] Ms Chatwin’s mother, Lynne Chatwin, died six days ago. Following her death a reporter from the Herald on Sunday contacted Sara Chatwin seeking comment regarding apparent discordance within the extended Chatwin family. Feelings within the family are apparently running high following the recent death of Lynne Chatwin. There is a history of litigation in relation to family issues, including a case concerning family trusts which settled following mediation last year. The Herald on Sunday’s source is not known, but Ms Chatwin believes that one or more members of the extended family might have provided information to the Herald.

[6] Based on her conversation with the reporter, Ms Chatwin believed that the Herald on Sunday was intending to run an article this Sunday, 19 January 2014. She understands that the crux of the article will be to comment on discord within the

Chatwin family and events surrounding the death of Lynne Chatwin. Ms Chatwin does not believe it is appropriate for the Herald to write an article about such private family matters, particularly so soon after her mother’s death.

[7] Ms Chatwin instructed Ms Tabb, who spoke to the Herald on Sunday editor, Miriyana Alexander. Ms Alexander confirmed that an article was being prepared, which could run this Sunday, although a final editorial decision had yet to be made. Ms Alexander would not agree to delay the article or allow Ms Chatwin to review it prior to publication.

[8] In response to questioning from the bench as to why the media might have a particular interest in the Chatwin family, Ms Tabb advised that Mr Chatwin senior…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZHC 11
Decision Date: 20 January 2014

CaseChat Overview and Summary

In the case of Chatwin v APN News and Media Ltd, Sara Chatwin sought an interim injunction to prevent APN News and Media Ltd from publishing an article about her extended family in the Herald on Sunday. Chatwin argued that the publication would breach her privacy, particularly as it would occur so soon after her mother's death. APN News and Media Ltd opposed the injunction, arguing that the subject matter was already in the public domain and that there was no serious question to be tried. The court had to decide whether the application for an injunction should be granted, balancing the privacy interests of Chatwin against the right to freedom of expression.

The court found that Chatwin had not established a serious question to be tried against APN News and Media Ltd. The court was not satisfied that the intended publication would involve private facts that would be highly offensive or objectionable to a reasonable person. The court also considered the importance of freedom of expression as enshrined in the New Zealand Bill of Rights Act 1990. The court concluded that the balance of convenience favoured APN News and Media Ltd and dismissed Chatwin's application for an injunction.

The court emphasised that New Zealand law does not recognise an absolute right to privacy in respect of family matters. The court also noted that the threshold for injunctive relief is high, which was not met in this case. The court reserved the question of costs, inviting counsel to confer and, if necessary, apply to have costs determined on the papers.

In summary, the court found that the injunction application should be dismissed, as the intended publication did not meet the requirements for a claim of invasion of privacy and the right to freedom of expression outweighed Chatwin's privacy interests.

Orders