Dorchester Finance Limited v Ngahuia Limited HC Auckland CIV 2009-404-2529
[2010] NZHC 970
•21 June 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2009-404-2529
BETWEEN DORCHESTER FINANCE LIMITED Plaintiff
ANDNGAHUIA LIMITED First Defendant
ANDHUPA JAMES MANIAPOTO, JAMES HEEMI BIDDLE, OWEN PURCELL, EMILY RAMEKA AND PUTI PUTI BIEL AS TRUSTEES OF THE OPEPE FARM TRUST and also in their personal capacity Second Defendants
ANDTUROA ANDREW KARATEA, STANLEY MOEPOA KARATEA, DENIS PATRICK KARATEA, ALAN VINCENT, NIGEL DEANE, PIERRE LIND, STACEY LIND AND CARLEEN HARIMATE AS TRUSTEES OF THE OWAWENGA TRUST and in their personal capacity
Third Defendants
Hearing: (on papers)
CONTINUED OVERLEAF
Appearances: Mr R Prebble
Mr D Fisher for Herald on Sunday
Judgment: 21 June 2010 at 2 pm
JUDGMENT OF ASSOCIATE JUDGE DOOGUE
Copy:
This judgment was delivered by me on
21.06.10 at 2 pm, pursuant to
Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Hon Richard Prebble CBE, Counter Delivery, Lake Rotoma Post Centre, Rotorua
3038 – [email protected]
Mr David Fisher, Chief Reporter, Herald on Sunday
DORCHESTER FINANCE LIMITED V NGAHUIA LIMITED AND ORS HC AK CIV-2009-404-2529 21
June 2010
ANDTUROA ANDREW KARATEA, JIM HEEMI BIDDLE, HUPA JAMES MANIAPOTO, JOHN STEPHEN PAURINI KARAMU ASHER, PAREHINAAWATEA NGAIRE GEORGE, ARTHUR LANCASTER TE TAKINGA GRACE, JOHN GRAHAM MANUNUI, PARANAPA REWI OTIMI AND LESLIE HOWARD OWENS, as Trustees of the Te Whenua Trust and in their personal capacity
Fourth Defendants
ANDWAIKIRI LIMITED Fifth Defendant
ANDTHE NGATI TURANGITUKUA CHARITABLE TRUST
Sixth Defendant
ANDOPEPE ADMINISTRATION SERVICES LIMITED
Seventh Defendant
[1] The Honourable Richard Prebble has applied to the Court to make an order excising his name from a judgment which I delivered in the proceeding Dorchester Finance Ltd v Ngahuia Ltd HC Auckland, CIV-2009-404-2529, 8 February 2010.
[2] I set out the background in my minute dated 3 June 2010. In essence, the Dorchester proceedings involve a finance company suing three different Maori- based entities, Ngahuia Limited, Opepe Farm Trust and Owawenga Trust. Those trusts were alleged to be indebted to Dorchester under loans which had gone into default. I gave judgment for the plaintiff in February of this year.
[3] Mr Prebble was mentioned in the evidence that was filed in that case. He was not a party to the proceedings and therefore did not appear, and indeed had no right to appear, before me at the hearing. Nor was he represented by counsel. He says certain assertions that were made about his involvement in a number of areas relevant to the Dorchester loan were the subject of misrepresentation to the Court. The broad areas about which Mr Prebble has objections are the following:
a) The suggestion that he was a prime mover in the transaction and that he was a principal in a joint venture affecting the property;
b) The exact nature of his involvement in the transaction;
c) That his involvement in the transaction came about in a public- spirited way in an effort to ensure that certain lands situated near Turangi, which were of significance to the Tuwharetoa people, came back into their ownership;
d)Whether the various defendants mis-stated the question of who the lawyers in the proceeding were acting for and generally gave a false impression of the part that Mr Prebble may have played in the overall transactions, whether to the extent that he was instrumental in the tribal enitites entering into the loan transactions or did not counsel them against it.
[4] Mr Prebble says that his assertion that the allegations against him are false is supported, in the case of the evidence that Mr Maniopoto gave, by an email which the latter has sent to him since I issued my judgment. In his communication Mr Maniopoto apologises for what he describes as a “misunderstanding”, agrees that he confused Mr Prebble’s role with that of others, and asks what he must now do to “correct this misunderstanding”.
[5] Mr Prebble says that his reputation is very likely to be significantly damaged if the matters contained in my judgment become public information. There is news media interest in the matter and indeed the application that Mr Prebble made to remove his name from the judgment that I issued was opposed by the Herald on Sunday, which had approached Mr Prebble for comment. I should add that having learned of Mr Prebble’s apprehensions, the Herald on Sunday very properly held off while Mr Prebble made the present application to the Court.
Principles
[6] The essential principle relevant to this application is that there is a strong presumption that New Zealand Court proceedings should be carried out in conformity with the principle of open justice. I respectfully agree with the conclusion of Asher J in Peters v Birnie HC Auckland CIV-2009-404-8119, 19
March 2010 at [25], “that a party seeking to justify a confidentiality order will generally have to show specific adverse consequences that are exceptional”.
[7] Traditionally the discretion of the Court to make prohibition orders seems to have been linked to its power to regulate its own procedure. For that reason, the Court in its inherent jurisdiction developed the practice of holding in camera hearings where to do otherwise would defeat the objective of the proceedings or would result in the proceedings having undesirable side effects. Proceedings in what used to be called the “lunacy” jurisdiction and proceedings in wardship were examples of cases where the Court would direct secrecy. Other examples have included making orders for the protection of national security. The same grounds would probably be justification for prohibition orders to cases where hearings
involving charges of blackmail were also the subject of suppression. But there does not seem to be any general power for the Court to make prohibition orders in any case where it might be said that harm would result to an individual before the Court or mentioned in Court papers. The practice of making secrecy orders of any kind brings with it its own hazards, as observed by Lord Shaw in Scott v Scott [1913] AC
417 at 484–485:
There remains this point. Granted that the principle of openness of justice may yield to compulsory secrecy in cases involving patrimonial interest and property, such as those affecting trade secrets, or confidential documents, may not the fear of giving evidence in public, on questions of status like the present, deter witnesses of delicate feeling from giving testimony, and rather induce the abandonment of their just right by sensitive suitors? And may not that be a sound reason for administering justice in such cases with closed doors? For otherwise justice, it is argued, would thus be in some cases defeated. My Lords, this ground is very dangerous ground. One’s experience shews that the reluctance to intrude one’s private affairs upon public notice induces many citizens to forgo their just claims. It is no doubt true that many of such cases might have been brought before tribunals if only the tribunals were secret. But the concession to these feelings would, in my opinion, tend to bring about those very dangers to liberty in general, and to society at large, against which publicity tends to keeps us secure: and it must further be remembered that, in questions of status, society as such – of which marriage is one of the primary institutions – has also a real and grave interest as well as have the parties to the individual cause.
[8] In a well-known passage from Scott v Scott, Viscount Haldane LC said at
437–439:
[T]he exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done. … As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. …
I think that to justify an order for hearing in camera it must be shewn that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made.
[9] While Viscount Haldane’s statement was made in the context of an application for a hearing in camera, it has been viewed as applicable to a case where the application was for prohibition of publication of a name: R v Legal Aid Board [1998] 3 WLR 925 at 933.
[10] Another, persuasive authority is Attorney-General v Leveller Magazine Ltd [1979] AC 440. In that case an order was sought prohibiting the publication of a witness’s name. Lord Diplock referred to the general principle in these terms (at
843–844):
As a general rule the English system of administering justice does require that it be done in public: Scott v Scott [1913] AC 417. If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.
However, since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule.
[11] The principles were described in R v Legal Aid Board in the following terms at 934:
The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases. This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public's confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. If secrecy is restricted to those situations where justice would be frustrated if the cloak of anonymity is not provided, this reduces the risk of the sanction of contempt having to be invoked, with the expense and the interference with the administration of justice which this can involve.
[12] Lord Woolf went on to state that any interference with the public nature of Court proceedings is generally to be avoided. He mentioned some acknowledged exceptions, which included proceedings relating to minors, proceedings under
mental health legislation, proceedings involving national security interests and proceedings involving secret processes, discovery or invention.
[13] There was a further discussion of the principles in Victim X v Television New Zealand Ltd [2003] 3 NZLR 220. That was a case where the intended victim of a conspiracy to kidnap sought to have publication of his name suppressed in any media reporting of the trial. After referring generally to the principle of open justice, the Court said at [5]:
The principle is long and well-established, as Joseph Jaconelli valuably demonstrates in his Open Justice: A Critique of the Public Trial (Oxford University Press, Oxford, 2002). He discusses the important reasons and values supporting the principle. They include the discipline placed by publicity on the participants in the justice process, including the judges, counsel and witnesses and particularly the accuser in criminal trials; the possibility that further witnesses will come forward; the facilitating of the attendance of the public with advantages in terms of observing the law being properly applied and administered, their legitimate interest in seeing charges of alleged offences against the whole community being authoritatively determined, and the deterrent thrust of the criminal law; and more broadly in the words of Lord Atkinson in the leading case of Scott v Scott [1913] AC
417 at p 463, that, although the hearing of a case in public may be and often is painful and humiliating, “all this is tolerated and endured, because it is felt
that in public trial is to be found, on the whole, the best security for the pure,
impartial and efficient administration of justice, the best means for winning for it public confidence and respect”.
[14] The Court on that occasion said that observance of the principle was particularly important in criminal proceedings.
[15] Further, it seems to me that the matters that were identified by Chambers J in his decision in Surrey v Speedy (1999) 13 PRNZ 397 have relevance in this case as well. Chambers J said at 399:
There is a protection for Mrs Speedy notwithstanding that her name may be published in the news media. That protection comes, as Mr Tizard has submitted, from the law of defamation. The news media are entitled to publish with impunity only fair and accurate reports of the proceedings. Any fair and accurate report of yesterday's hearing would, I suggest, contain a number of elements. First, it would make clear that Mrs Speedy strenuously denies the allegations made against her in the draft statement of claim. Secondly, it would make clear that the allegations have not been tested in Court and are nothing more than allegations which may or may not be substantiated if leave to commence the proceeding is given and if the matter eventually goes to trial.
[16] There were differences in the Speedy litigation compared to the current proceedings. One difference is that in that case Mrs Speedy was an intended defendant, whereas Mr Prebble in this case is a non-party. But the fact that no one had actually sued Mr Prebble for his part in the Dorchester events goes to show that he was placed at some distance from the events which were central to that claim. That is a factor that a fair reader would take into account in assessing what, if any, part Mr Prebble played in the events which lead to the Dorchester litigation.
[17] In my view, there is no basis for making an order of the kind that Mr Prebble seeks.
Mr Prebble’s submissions
[18] Mr Prebble has submitted that the appropriate course here is to “recall the judgment and remove [his] name from the judgment”. He says that reference to him is not necessary. He says that this is a case of false, irrelevant, untested evidence causing damage to a non-party to the case. He asked that incorrect statements about him “that are not necessary for the decision” should be removed from the judgment. He refers to various supporting statements that have been made to him by people associated with the transaction which confirm that those who made comments about Mr Prebble, and in particular Mr Maniapoto, were mistaken. He describes it as an abuse of the legal process to have filed irrelevant, false and scandalous affidavits about non-parties, such as Mr Prebble. He says that affidavits of those such as Mr Ranginui should never have been put in evidence in the case. He is critical of counsel and solicitors who drew the affidavits and arranged for them to be filed.
[19] Mr Prebble has asserted that the various statements referring to him made by deponents such as Mr Maniapoto were “unnecessary” evidence in the case. However, the reason why the evidence was given was as a foundation for further submissions that the parties to the transactions had been misled by other persons, who were both parties to the transactions as well and in addition by other people who were not parties to the transaction. To that extent, the evidence was relevant. Mr Prebble’s assertion that it was false does not make it irrelevant.
Discussion
[20] As I understand it the correct approach in principle is for the Court to strike a balance between the requirements of the principle of open justice, on the one hand, while ensuring at the same time that application of the principle when applied to the case before the Court does not in the circumstances compromise the administration of justice. Where observance of the principle of open justice could lead to the personal harm of a witness or compromise national security, to take examples from decided cases, it can be readily discerned that, important though the principle is, it must give way in the instant case.
[21] In essence, the relevant discussion in the judgment would convey that the parties giving evidence in the case that I heard made allegations that can be analysed as follows. It could be said that Mr Prebble took advantage of a position of trust in relation to those who entered into the transaction and that he gave advice to them as to what their decision should be when he was not disinterested in that decision. Another possible analysis is that, while not in a position of trust, he nonetheless was a person in whom the contracting parties had confidence and whose judgement they valued; and that he neglected to give those persons proper advice or direction. It is not alleged that his conduct was criminal. The assertions against him do not allege fraudulent conduct.
[22] The judgment does not contain specific conclusions that the assertions made against Mr Prebble were true or false. The implicit conclusion in the judgment was that even if correct, the assertions which the defendants advanced as grounds for escaping the contract, including what they said about Mr Prebble but not limited to that issue, did not amount to a defence.
[23] Mr Prebble’s concern is that there will be harm to his reputation. In order to make a decision on this matter it is necessary to carry out some assessment of the likely degree of any harm to Mr Prebble’s reputation that will result if no order is made.
[24] In making an assessment all relevant factors must be considered. That includes anticipating the broad outlines of how the media treatment of the allegations will develop. There may well be extensive interest in the media. Because he is a well-known public figure, accusations levelled against Mr Prebble are newsworthy. Even where there are only slight grounds for it, there will be comment about them in the media in a case where unethical or improper conduct on his part is alleged. The fact that someone like Mr Prebble has pursued a career in public life is the very factor that makes him vulnerable to media attention. But that factor, too, makes it important that the Courts’ processes are seen to be open. Otherwise, the criticism can be made that persons who occupy positions of prominence can secure unjustifiably favourable treatment from the Courts.
[25] The next matter to be considered is how damaging the allegations are likely to be. It is relevant to recall that the Court did not make any findings against Mr Prebble and recorded that he had not been heard. No doubt, too, Mr Prebble will be approached for his side of the story and he will be able to make the point forcefully to the media, as he has made it to me, that there are factual errors in the evidence that the Court heard and that at least one of the witnesses has since re-canted his comments in regard to Mr Prebble. Also relevant is the reminder of Chambers J in Surrey v Speedy that media coverage must be fair and accurate, which means that it is likely the point will be made that the allegations against Mr Prebble are just that. They have not been tested in Court and may well be untrue. Further, Mr Prebble was not before the Court and his side of the story was not given. He was not represented by counsel. One side only was heard in the absence of Mr Prebble. It would further be noted that Mr Prebble has since made abundantly clear in his communications with the Court that he vigorously disputes the accuracy and propriety of the statements made about him in the evidence in the Dorchester case.
[26] The presumption is against the making of prohibition orders of the kind that Mr Prebble seeks. But a balance has to be struck to ensure that a prohibition on publication of Mr Prebble’s name will be made if the administration of justice indeed requires it.
[27] I agree that someone who has not been given the opportunity to file evidence in the proceeding ought to be heard in person or by counsel to contradict damaging assertions made against them. There is at least a weighty moral claim for saying that untested allegations should not be given publicity by having those allegations included in a judgment which can be reported in the news media. On the other hand, the point was made clear in the judgment that Mr Prebble’s account of matters was not heard. The peripheral part of Mr Prebble in the proceeding is a factor which points towards a prohibition order. Such involvement as he had in the proceedings was of incidental or secondary importance to the transaction that the case was concerned with.
[28] The authorities make it clear that any censorship of Court proceedings is a serious step which should only be taken where there are compelling grounds for doing so. The cases are not based upon the proposition that any collateral damage to other persons mentioned in reports of cases is unimportant or inconsequential. The potential for harm to non-parties like Mr Prebble is plain but it is viewed as being an unavoidable price that has to be paid for open justice. Personal embarrassment to individuals is generally not regarded as being a sufficient counterweight to the application of that principle. Something more compelling is required as the examples from the cases show. As well, Mr Prebble will not find himself an unarmed combatant if he does not receive fair treatment from the media. For all of these reasons I do not consider that a permanent order prohibiting publication of Mr Prebble’s name ought to be made. The earlier order that I made will cease to have
effect seven days after the date of delivery of this judgment.
J.P. Doogue
Associate Judge
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