F v Unidentified Customs Officer X
[2019] NZHC 1141
•23 May 2019
NOTE: THE NAMES OF THE APPLICANT/PROPOSED FIRST PLAINTIFF, THE PROPOSED SECOND PLAINTIFF, THE PROPOSED FIRST
DEFENDANT AND THE PROPOSED SECOND DEFENDANT HAVE BEEN ANONYMISED.
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2019-409-215
[2019] NZHC 1141
IN THE MATTER of an application to appoint a litigation guardian BETWEEN
F
Applicant/Proposed First Plaintiff
AND
S (by F as litigation guardian) Proposed Second Plaintiff
AND
UNIDENTIFIED CUSTOMS OFFICER X
Proposed First Defendant
AND
UNIDENTIFIED POLICE CONSTABLE Y
Proposed Second Defendant
AND
ATTORNEY-GENERAL (on behalf of the Comptroller of Customs)
Proposed Third Defendant
AND
COMMISSIONER OF POLICE
Proposed Fourth Defendant
Hearing: (Determined on the Papers) Counsel:
N J Hansen, G J X McCoy and S P H Elliott for Applicant/Proposed First Defendant
Judgment:
23 May 2019
JUDGMENT OF ASSOCIATE JUDGE LESTER
F & ANOR v CUSTOMS OFFICER X & ORS [2019] NZHC 1141 [23 May 2019].
[1] F, prior to the commencement of the substantive proceeding which he seeks to bring on behalf of himself and his infant son, seeks three orders.
[2] The first is that he be appointed litigation guardian for his son. The second is prohibiting publication of the names and/or identifying particulars of himself, his son, his wife, or the country to which his wife has taken their son, and the third is that the Court file not be searched without the leave of the Court.
Litigation Guardian
[3] F’s son S is nine years old. The application explains that on 1 February 2019, F obtained an order under s 77 of the Care of Children Act 2004 prohibiting S from being removed from New Zealand until further order of the Court. A border alert was registered with the New Zealand Police and Customs notifying them of the order.
[4] Notwithstanding the order, F says that on 7 February 2019 S’s mother, was permitted by Police and Customs Officers at Christchurch International Airport to pass through border control with S and to remove him from New Zealand. This was notwithstanding the border order having been activated and the Officers having knowledge of the order.
[5] F wishes to bring proceedings in his own name on behalf of S in relation to this event.
[6] As a minor, S must be represented by a litigation guardian under r 4.31 of the High Court Rules 2016.
[7] The commentary in McGechan on Procedure records the need for the litigation guardian to be appointed before the proceedings are commenced; hence the present application.1
1 McGechan on Procedure (online ed, Thomson Reuters) at [HR4.31.03].
[8] Rule 4.35(2) provides that the Court may appoint a litigation guardian where the litigation guardian is able fairly and competently to conduct proceedings on behalf of the minor, does not have interests adverse to those of the minor, and consents to being a litigation guardian.
[9] Given the circumstances described in the application, I accept that in respect of the prospective claims F’s interests and those of his son align.
[10]I also accept that F is able to fairly and competently conduct the proceeding.
[11] Rule 4.36 requires the application to be served on the person for whom the litigation guardian is to be appointed unless the Court directs otherwise. Given F’s son is nine years old and given the circumstances of him being out of the country, service under r 4.36 is not necessary.
Suppression Orders
[12] F’s son has been taken to a country which is not a party to the Hague Convention on the Civil Aspects of International Child Abduction.
[13] F’s concern is that the prospects of him recovering S from overseas are therefore slight. He is concerned that any publication of the details of this case or the individuals involved is likely to prejudice the slight chance he has of recovering S.
Suppression in civil cases - principles
[14] In Y v Attorney-General, the Court of Appeal gave guidance about the principles to be applied when considering suppression in civil cases.2 Ten days later, the Supreme Court released Erceg v Erceg,3 which was less focused on providing guidance for other cases but was, in large part, consistent with Y v Attorney-General. Neither case referred to the other.
2 Y v Attorney-General [2016] NZCA 474, [2016] NZFLR 911.
3 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310.
[15] Woodhouse J, in Commissioner of Police v F (L) C, compiled a convenient list of the principles arising from the two cases:4
[15]The statements of principle may be summarised as follows:
(a)The starting point is the principle of open justice. This leads to a presumption of disclosure of all aspects of civil court proceedings.5
(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.6
(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.7
(d)The power to order non-publication is discretionary.8
(e)There is no onus on the applicant for the non-publication order.9
(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.10
(g)The correct approach requires the court to strike a balance between open justice considerations and the interests of the party who seeks suppression.11
4 Commissioner of Police v F (L) C [2016] NZHC 2852.
5 Erceg, above n 3, at [2]; Y v Attorney-General, above n 2, at [25]-[28].
6 Erceg, above n 3, at [3].
7 Erceg, above n 3, at [4]-[7]. The Supreme Court in Erceg, at fn 6, said that it preferred the term “inherent power” to “inherent jurisdiction”.
8 Rowley v Commissioner of Inland Revenue [2011] NZSC 76, (2011) NZTC 23-052 at [5];
Y v Attorney-General, above n 2, at [23]-[24] and fn 27.
9 Erceg, above n 3, at [13]; Y v Attorney-General, above n 2, at [29], both approving ASB Bank Ltd v AB [2010] 3 NZLR 427 (HC) at [14].
10 Erceg, above n 3, at [13]; Y v Attorney-General, above n 2, at [30].
11 Y v Attorney-General, above n 2, at [31]. The Court of Appeal noted: “We have drawn that passage from the Supreme Court’s judgment in Hart v Standards Committee (No 1) of the New Zealand Law Society [2012] NZSC 4 at [3]. The Supreme Court had earlier supported the same balancing approach in Rowley v Commissioner of Inland Revenue, above n 8, at [6]-[7]. As this Court observed in McIntosh v Fisk [2015] NZCA 247, [2015] NZAR 1189 at [20], in the context of this balancing, ‘the open justice principle is not an article of faith, never to be departed from’.”
[16]More recently, in A Ltd v C Ltd, Mander J summarised the principles from
Y v Attorney-General without reference to Erceg:12
[9] The power to suppress the names and identifying particulars of parties and witnesses involved in civil proceedings, or other details of such cases, is found in the inherent jurisdiction of this Court. The starting point in approaching the issue is the principle of open justice and the related freedom of expression guaranteed by s 14 of the New Zealand Bill of Rights Act 1990.13 Together, those two tenets create a presumption of disclosure that is to apply in respect of civil court proceedings.14
[10] Because of the importance of the principle of open justice, a court will need to have sound reasons for finding that the presumption favouring publication is displaced. However, there is no onus or burden on an applicant seeking suppression to justify that step. The question is simply whether the circumstances justify an exception to the fundamental principle of openness.15 No particular threshold is required to be met.
[11] In Y v Attorney-General, the Court of Appeal endorsed its earlier approach in Jay v Jay, that “extraordinary circumstances” are not required to justify suppression in a civil case.16 However, the threshold remains a high one because any suppression order necessarily derogates from the principle of open justice and the right to freedom of expression.17 The correct approach requires the Court to “strike a balance between open justice considerations and the interests of the party who seeks suppression”.18
[12] Because of the “limitless variety” of civil cases, each of which will be factually different from the other, the balancing exercise must necessarily be case dependent.19 Sometimes there will be a significant and legitimate public interest in knowing the names of the people involved in a case, be they the parties or witnesses, or of knowing about the detail of the case. In illustrating that point, the Court of Appeal, in Y v Attorney-General, referred to the usually high public interest in knowing the names of professional practitioners facing charges in disciplinary proceedings.20 That it is to be compared with the likely limited legitimate public interest in knowing the name or identifying particulars of parties or of details of cases where the information is intensely private or personal or is considered confidential or commercially sensitive.21
[13] Further considerations to be taken into account are how central the information sought to be suppressed is to understanding the nature of the proceeding and what it is that the Court has decided. There will be a stronger presumption favouring disclosure where such detail is required in order for
12 A Ltd v C Ltd [2018] NZHC 3433.
13 Y v Attorney-General, above n 2, at [25].
14 At [26].
15 At [29], citing with approval Harrison J in ASB Bank Ltd v AB, above n 9, at [12] and [14].
16 Y v Attorney-General, above n 2, at [30]; Jay v Jay [2014] NZCA 445, [2015] NZAR 861 at [118].
17 Y v Attorney-General, above n 2, at [30], citing with approval McIntosh v Fisk, above n 11, at [20].
18 Y v Attorney-General, above n 21, at [31], citing X v Standards Committee (No 1) of the New Zealand Law Society [2011] NZCA 676 at [18].
19 Y v Attorney-General, above n 2, at [32].
20 At [32].
21 At [33].
the public to understand what the Court has decided and why.22 Different considerations will also apply depending upon what is sought to be suppressed and the stage which the proceeding has reached. Suppression is more likely to be granted on an interim basis at an interlocutory stage of a proceeding. The Court will likely be better placed to assess the need for permanent suppression after it becomes familiar with the particular details of the case at trial.23
[17] In short, the Court can suppress the names and identifying particulars of people involved in civil cases. This power stems from the Court’s inherent jurisdiction. The Court must strike a balance between fundamental open justice considerations and the interests of the party seeking suppression.
Suppression of the name of the child
[18] I cannot find any direct authority for the proposition that children’s names in civil proceedings should be suppressed by default. Family Court proceedings and youth justice proceedings generally cannot be reported with identifying information of children.24 While this proceeding is not in the Family Court, it is closely related to a family law issue. I consider that suppressing S’s name is appropriate. There is limited legitimate public interest in his identity. Nor is disclosure of his name required to understand the issues the Court will be asked to determine.
Suppression of names of the parents and country Q
[19] Name suppression (or non-publication orders) should not be granted merely on the grounds that “the proceedings deal with matters that some family members would prefer to be kept private”, or that family relationships will be strained.25 It is common now that the names of the parties in relationship property proceedings are not suppressed, even though that would often allow people to identify their minor children.
[20] If concerns about the safety and security of family members are sufficiently grave, that may justify an order.26
22 At [34].
23 At [34].
24 Family Court Act 1980, s 11B; Oranga Tamariki Act 1989, s 438.
25 Erceg, above n 3, at [21](a).
26 Erceg, above n 3, at [21](c).
[21] Here, F seeks suppression as he is concerned that publication of the details of the case, the people involved or that he intends to continue to take steps to recover S from country Q, may mean M or the Government of Q will hear of it and take steps to put S out of reach.
[22] It makes sense to make the requested suppression orders on an interim basis, while the wider context of the case is established.27 F’s concern about M being alerted to attempts to recover S legally appear legitimate. This is a case where the proceeding can be commenced with the suppression orders sought being made but with leave reserved for the defendants to apply for this to be revisited.
Orders
[23]The following orders are made:
(1)There is an order appointing the applicant F as litigation guardian for his son S.
(2)There is an order dispensing with service on S under r 4.36 of the High Court Rules.
(3)There is an order prohibiting publication of the names and/or identifying particulars of the applicant, his son S, the mother of S, and the country to which S has been taken.
(4)There is an order that this matter not be searched without leave of the Court.
27 As discussed in Y v Attorney-General, above n 2, at [34] and in A Ltd v C Ltd, above n 12, at [13].
(5)Leave is reserved to the defendants to apply on notice to review orders
(3) and (4) above.
Associate Judge Lester
Solicitors:
Hansen Law, Christchurch (for Applicant/ Proposed First Plaintiff)
Copy to counsel: Dr G McCoy QC, Christchurch and S Elliott, Barrister, Auckland
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