Chief Executive of the Department of Internal Affairs v NZ Trustees Association Charitable Trust

[2019] NZHC 2971

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2464

[2019] NZHC 2971

BETWEEN

CHIEF EXECUTIVE OF THE

DEPARTMENT OF INTERNAL AFFAIRS
Plaintiff/Respondent

AND

NZ TRUSTEES ASSOCIATION CHARITABLE TRUST

First Defendant

ERROL BRUCE ANDERSON

Second Defendant/Applicant

Hearing:

On the papers

Appearances:

J Parry for Plaintiff

No appearance for First Defendant Second Defendant in person

Judgment:

8 November 2019

JUDGMENT OF LANG J

[on application for name suppression]

This judgment was delivered by me on 8 November 2019 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

CHIEF EXECUTIVE OF THE DEPARTMENT OF INTERNAL AFFAIRS v NZ TRUSTEES ASSOCIATION CHARITABLE TRUST (No. 2) [2019] NZHC 2971 [8 November 2019]

[1]                 On 21 October 2019 I delivered a judgment determining an application by the plaintiff for pecuniary penalty orders under the Unsolicited Electronic Messages Act 2007(the Act).1 I also made an order requiring both defendants to comply with an enforceable undertaking they had given to the plaintiff on 21 August 2017.2

[2]                 Following delivery of my judgment Mr Anderson has filed memoranda seeking name suppression. He did not raise this issue at the hearing on 5 September 2019 but relies on a request for suppression he made in a memorandum filed in March 2018 at an interlocutory stage of the proceeding. It is regrettable that Mr Anderson did not raise the issue formally at the conclusion of the hearing on 5 September 2019.

[3]                 The applicant opposes name suppression being granted. It points out that proceedings in this Court should be transparent and that it is in the public interest for Mr Anderson’s name to be published.

Relevant principles

[4]                 The principles that apply in the present context are well established. I see no need to go further than the authority referred to me by counsel for the plaintiff. He referred me to the following passage from the judgment of this Court in Commissioner of Police v F (L) C.3 In that case the Court observed:

[14]      There are two very recent authoritative decisions on applications for non- publication orders in civil proceedings. In the Supreme Court, in Erceg v Erceg, the application was for orders preventing publication of any confidential information about family affairs that might be disclosed in the course of oral submissions in proceedings between family members. In the Court of Appeal, in Y v Attorney-General, the appellant sought suppression of names of witnesses, who claimed to have suffered abuse while in the care of predecessors to the Ministry of Social Development. The Supreme Court’s judgment was delivered 10 days after the Court of Appeal’s judgment, but the Supreme Court’s judgment was its reasons for a decision given over a month earlier. Neither judgment refers to the other, but there is no conflict between statements of principle.

[15]The statements of principle may be summarised as follows:

1      Chief Executive of the Department of Internal Affairs v NZ Trustees Association Charitable Trust

[2019] NZHC 2684.

2 At [52].

3      Commissioner of Police v F (L) C [2016] NZHC 2852.

(a)The starting point is the principle of open justice. This leads to a presumption of disclosure of all aspects of civil court proceedings.

(b)There are, nevertheless, 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.

(c)In proceedings heard in open court, the court may exercise its inherent power to make non-publication orders binding on the public at large.

(d)The power to order non-publication is discretionary.

(e)There is no onus on the applicant for the non-publication order.

(f)What the party seeking the order must show is specific adverse consequences that are sufficient to justify an exception to the fundamental rule, but the standard, or threshold, is a high one.

(g)The correct approach requires the court to strike a balance between open justice considerations and the interests of the party who seeks suppression.

Decision

[5]                 Mr Anderson sets out the basis for his application in a memorandum dated 25 October 2019. This is as follows:

1On 24^th March 2018 I filed a memorandum pleading for name suppression as attached in section 8.

2Further to that request I submit as supporting information that I am a Trustee of the NZ Trustees Association Charitable Trust, a Registered Trustee, a Licensed Real Estate Agent with a Certificate IV in Property Management.

3I am also a Trustee for the Australian Trustees Association and hold the honorary title of General Manager of the Asia-Pacific Region.

4My standing in the Trust sector has seen me act as a judge for the annual NZ Trust Awards for the past 21 years.

5I attended a meeting in London with a Director of the UK Charities Commission to gain access to over 40 UKCC publications to assist New Zealand charities prior to our being a key stakeholder in creating the NZ Charities Commission.

6I was the initiator to establish the Coral Burrows Trust with co-Trustee Mayor John Reid to raise funds to assist in finding the child, and then

when discovered beaten and dead, we were required to manage the funds accordingly.

7I have worked as a volunteer within the Wairarapa Community Law Centre as an advocate where attained a Certificate as a Para-Legal.

8I do not believe my dedication to the Trust Sector can be questioned.

9I plead again for name suppression as the Public embarrassment will far exceed the nature of the civil breach and have an extremely detrimental [effect] to my professional career.

[6]                 In other memoranda Mr Anderson reiterates his view that I was wrong to find that he was liable to pay a pecuniary penalty as well as NZTA. It is now too late to debate that particular issue and it is not relevant to the issue of suppression. In case it is not already clear from my substantive judgment, however, Mr Anderson needs to bear in mind that he elected to be a party to the enforceable undertaking in his personal capacity along with NZTA. In doing so he became bound personally to ensure NZTA complied with the terms of the undertaking.

Decision

[7]                 As the authorities demonstrate, the threshold for a suppression order is high. Although Mr Anderson does not bear any particular onus, he must nevertheless show how the publication of his name will adversely affect him.

[8]                 I do not consider the matters Mr Anderson has raised identify any specific adverse consequences that publication of his name will produce. In particular, he has not pointed to any position, office or status that he may lose if his name is published. Nor does he specify how publication of his name will have an extremely detrimental effect on his professional career. The fact that Mr Anderson will be embarrassed if his name is published does not justify an order for suppression. Embarrassment is a consequence that will often accompany a finding that a person is liable to pay a pecuniary penalty under commercial regulatory legislation.

[9]                 Furthermore, this proceeding raises issues of public interest. The public are entitled to know the identity of persons and entities who breach the provisions of the Act. Publication also underscores the deterrent purpose of the penalties imposed on both defendants.

[10]              For these reasons I cannot see any principled basis on which I could make an order suppressing publication of Mr Anderson’s name.

Result

[11]The application for suppression of Mr Anderson’s name is refused.

Lang J

Solicitors:

Meredith Connell, Auckland