Dew v Discovery NZ Limited - [2024] NZSC 21

ORDER PROHIBITING PUBLICATION OF THIS JUDGMENT UNTIL 2.00 PM ON 7 MARCH 2024.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 136/2023
[2024] NZSC 21

BETWEEN	JOHN ATCHERLEY DEW Applicant
AND	DISCOVERY NZ LIMITED Respondent

Court:	Glazebrook, Kós and Miller JJ
Counsel:	P A McKnight and A J Romanos for Applicant D M Salmon KC, J W J Graham and T F Cleary for Respondent
Judgment:	5 March 2024

JUDGMENT OF THE COURT

AThe application for leave to appeal is dismissed.
BThe applicant must pay the respondent costs of $2,500.
CWe make an order prohibiting publication of this judgment until 2.00 pm on 7 March 2024.

____________________________________________________________________

REASONS

The applicant seeks leave to appeal a judgment of the Court of Appeal declining to restrain publication of a programme accusing him and others of sexual abuse in November 1977, when he was a priest associated with the St Joseph’s Orphanage in Upper Hutt.[1] The respondent is a media organisation. The programme, which is intended to be broadcast on TV3 and other media platforms associated with the respondent, recounts allegations by the alleged victims, Steven and Linda Carvell. They are siblings who were aged seven and eight in 1977. They have chosen to make their claims public.
[1]Dew v Discovery NZ Ltd [2023] NZCA 589 (Cooper P, French and Goddard JJ).
The applicant says that the abuse did not happen, and he says that independent evidence shows it could not possibly have happened at that time and place, and in the manner alleged.
The applicant sought to restrain publication on three alternative grounds:
(a)In the exercise of the courts’ statutory jurisdiction to suppress publication of certain matters in connection with criminal proceedings.[2] No such proceeding had been commenced, but the police were investigating the allegations;
(b)In the exercise of the High Court’s inherent jurisdiction to restrain a publication which would interfere with the administration of justice by undermining the applicant’s fair trial rights and the right to seek name suppression should the police commence a criminal proceeding; and
(c)By way of prior restraint of the defamatory publication.
[2]Criminal Procedure Act 2011, s 205. The District Court granted the complainants’ application under s 203(3)(b) permitting publication of their names, addresses and occupations, but also made an order under s 205 suppressing publication (for fair trial reasons) of what the Court itself had recounted about their allegations: Re Carvell DC Wellington CRI-2023-085-1778, 2 August 2023 (Judge Davidson).
As the High Court had done before it,[3] the Court of Appeal declined to restrain publication on any of these grounds, and also on a fourth ground (breach of privacy) that is no longer pursued.
[3]Dew v Discovery NZ Ltd [2023] NZHC 2105 (Palmer J).
The second ground is also not now pursued in this Court because the police have advised that they have concluded their investigation and no charges are to be laid.

Our assessment

The proposed appeal is brought from an interlocutory order made in a…

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.

Continue reading Dew v Discovery NZ Limited

Details

AGLC: Dew v Discovery NZ Limited [2024] NZSC 21
Case: [2024] NZSC 21
Decision Date: 5 March 2024

CaseChat Overview and Summary

In the Supreme Court of New Zealand, the applicant, John Atcherley Dew, sought leave to appeal a Court of Appeal decision that declined to restrain the publication of a TV programme accusing him and others of sexual abuse at the St Joseph’s Orphanage in Upper Hutt in 1977. The respondent, Discovery NZ Limited, is a media organisation. Dew sought to restrain publication on the grounds of suppressing matters in connection with criminal proceedings, inherent jurisdiction to restrain publication, and defamation. The Court of Appeal had declined to restrain publication on all grounds.

The legal issues before the Supreme Court were whether the court had jurisdiction to suppress publication of certain matters in connection with criminal proceedings, whether the High Court had inherent jurisdiction to restrain publication, and what the standard is for prior restraint of defamatory publication. The Court found that the first ground was not seriously arguable, as there were no criminal proceedings at the time. The Court was not persuaded to revisit the rule on prior restraint of defamatory publication and found that the respondent had assurances that it would plead truth or responsible communication on a matter of public interest, which should be tested at trial.

The Supreme Court dismissed the application for leave to appeal and ordered Dew to pay costs of $2,500. The Court made an order prohibiting publication of the judgment until 2.00 pm on 7 March 2024. The Court found that the applicant's name would be published irrevocably in connection with the allegations, but he may be vindicated at the trial of the proceeding in which the application was brought. The Court was not persuaded that this was an appropriate case to revisit the rule on prior restraint of defamatory publication and found that the respondent had assurances that it would plead truth or responsible communication on a matter of public interest, which should be tested at trial.

Orders