The first and second respondents applied for an order preventing publication of certain matters if they were referred to in oral argument in the course of the substantive appeal. Having heard argument on the application at the outset of the hearing, we dismissed it. We now give our reasons for doing so.
Open justice
The principle of open justice is fundamental to the common law system of civil and criminal justice. It is a principle of constitutional importance,[1] and has been described as “an almost priceless inheritance”.[2] The principle’s underlying rationale is that transparency of court proceedings maintains public confidence in the administration of justice by guarding against arbitrariness or partiality, and suspicion of arbitrariness or partiality, on the part of courts. Open justice “imposes a certain self-discipline on all who are engaged in the adjudicatory process – parties, witnesses, counsel, Court officers and Judges”.[3] The principle means not only that judicial proceedings should be held in open court, accessible by the public, but also that media representatives should be free to provide fair and accurate reports of what occurs in court.[4] Given the reality that few members of the public will be able to attend particular hearings, the media carry an important responsibility in this respect. The courts have confirmed these propositions on many occasions, often in stirring language.[5]
[1]This is confirmed in the criminal context by s 25(a) of the New Zealand Bill of Rights Act 1990 (NZBORA), which provides that those charged with offences have “the right to a fair and public hearing by an independent and impartial court”.
[4]Section 14 of NZBORA protects the right to freedom of expression, which includes the right to impart information about court proceedings, although that is subject to “reasonable limits” in terms of s 5: see the discussion in Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [156]–[159] per McGrath, William Young and Glazebrook JJ. Fair and accurate reports of court proceedings attract qualified privilege: Defamation Act 1992, s 16 and pt 1 of sch 1.
[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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AGLC
Erceg v Erceg [2016] NZSC 135
Case
[2016] NZSC 135
Decision Date
CaseChat Overview and Summary
In the Supreme Court of New Zealand, Ivan Erceg appealed against a decision that dismissed his application for non-publication orders in a family trust dispute. The respondents sought orders to prevent publication of certain details in the proceedings. The court considered the principles of open justice and the inherent power of the court to make non-publication orders to protect the administration of justice. However, the court held that the respondents had not demonstrated that the potential risks of publicity were sufficiently high to warrant a departure from the fundamental principle of open justice.
The court held that the mere fact that the proceedings dealt with private family matters was not sufficient to justify an order. While the nature of the allegations, breach of trustee duties, supported openness, the court held that the respondents had not demonstrated that the interests of justice required a departure from the usual principle of open justice. The court considered that if unfounded allegations against particular trustees or beneficiaries were made in the course of the hearing, the respondents would have the opportunity to counter them, and any fair and accurate report of the proceedings would have to reflect that response. The court also held that concerns about the safety and security of family members were not sufficient to displace the usual principle of open justice. The appeal was dismissed, and the application for non-publication orders was declined.