Fisk v Name Suppressed - [2015] NZHC 827

THE PRIOR INTERIM NAME SUPPRESSION ORDER MADE IN THIS PROCEEDING CONTINUES IN FORCE IN ACCORDANCE WITH [33] OF THIS JUDGMENT

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-2591 [2015] NZHC 827

BETWEEN
JOHN HOWARD FISK and DAVID

JOHN BRIDGMAN Applicants

AND

NAME SUPPRESSED Respondent

Hearing: 17 April 2015

Counsel:

M G Colson and R L Pinny for Applicants
J B M Smith QC and JLW Wass for Respondent

Judgment:

24 April 2015

JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is
4.15 pm on the 24th day of April 2015

Solicitors: Bell Gully, Wellington, for Applicants.
Gibson Sheat, Wellington, for Respondent.

FISK v NAME SUPPRESSED [2015] NZHC 827 [24 April 2015]

[1] The respondent, who has interim name suppression, seeks an order for permanent name suppression.

[2] The respondent was an investor in Ross Asset Management Ltd (RAM). That was a Ponzi scheme. The applicants, the liquidators, seek in these proceedings recovery under s 348 of the Property Law Act 2007 and ss 292 and 297 of the Companies Act 1993 of payments made to him in respect of his investment prior to the liquidation.

[3] The starting point is the principle of open justice. That basic principle is described by Woodhouse P in Broadcasting Corporation of New Zealand v Attorney- General.1

Some of the descriptions applied by the English Court of Appeal and the House of Lords to the concept of open justice are worth recalling. "So precious a characteristic of English law"; "the salt of the Constitution"; "one of the surest guarantees of our liberties"; "our true security for justice under the Constitution": Scott v Scott [1912] P 241 at 260 and 287; and [1913] AC 417 at 476 and 482. Those spacious phrases may not precisely capture basic aspects of the New Zealand idiom in 1982 but there is no doubting their message. It is simply that the principle of public access to the Courts is an essential element in our system. Nor are the reasons in the slightest degree difficult to find. The Judges speak and act on behalf of the community. They necessarily exercise great powers in order to discharge heavy responsibilities. The fact that they do it under the eyes of their fellow citizens means that they must provide daily and public assurance that so far as they can manage it what they do is done efficiently if possible, with human understanding it may be hoped, but certainly by a fair and balanced application of the law to facts as they really appear to be. Nor is it simply a matter of providing just answers for individual cases, important though that always will be. It is a matter as well of maintaining a system of justice which requires that the judiciary will be seen day by day attempting to grapple in the same even fashion with the whole generality of cases. To the extent that public confidence is then given in return so may the process…

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 Fisk v Name Suppressed

Details

AGLC: Fisk v Name Suppressed [2015] NZHC 827
Case: [2015] NZHC 827
Decision Date: 24 April 2015

CaseChat Overview and Summary

In the case of Fisk v Name Suppressed, the High Court of New Zealand, Wellington Registry, was tasked with deciding whether to grant a permanent name suppression order to the respondent, who was an investor in the failed Ponzi scheme, Ross Asset Management Ltd (RAM). The applicants, the liquidators, sought recovery of payments made to the respondent prior to the liquidation under the Property Law Act 2007 and the Companies Act 1993. The court was required to consider the principle of open justice and its exceptions in determining whether the respondent's identity should be suppressed.

The court held that the principle of open justice is a crucial constitutional safeguard, and the identity of participants in court proceedings is a necessary consequence of the public administration of justice. Although there are some exceptions to the general rule, such as in Family Court proceedings, this case did not fall under those exceptions. The court also considered the respondent's arguments for suppression, including the potential for sensationalized media coverage and the impact on his business. However, the court found that these concerns did not outweigh the importance of the principle of open justice.

The court ultimately refused the application for permanent name suppression, stating that the interim order for name suppression would remain in force until the delivery of the substantive judgment in the proceeding and would then expire. The costs were reserved for consideration after the substantive judgment had been delivered.

Orders