Fisk v Name Suppressed
[2015] NZHC 827
•24 April 2015
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 RespondentJudgment:
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 be regarded as fulfilling its purposes.
Despite the importance attached to these basic concepts there have been occasional situations of a particularly pressing kind which have led to a Court sitting in camera. Sometimes there has been statutory authority for that happening but otherwise the Judge concerned has drawn upon an inherent jurisdiction of the Court to adopt measures that are needed to protect the long term interests of justice. If an open hearing would prevent the due administration of justice in that wide and general sense then on rare occasions it has been accepted that the quite exceptional step could be taken of closing the Court. The matter is discussed in Scott v Scott where there is some reference to strictly limited reasons which might require some action
1 Broadcasting Corporation of New Zealand v Attorney-General [1982] 1 NZLR 120 (CA) at 122.
of that kind. But that case demonstrates how jealous the Judges have always been to preserve the fundamental principle that justice is to be administered openly and publicly; and that any departure from that principle must depend not on judicial discretion but the demands of justice itself.
[4] The principle of open justice extends to the identity of those involved in court proceedings. That is seen as a necessary consequence of the public administration of justice. In Scott v Scott Lord Atkinson said:2
The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to 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.
[5] The presumption in favour of disclosure is a very strong one. The Court of
Appeal in Clark v Attorney-General said:3
[42] With regard to Mr Ellis’ comment that there is no public interest in the publication of Mr Clark’s name, we remark that the principles of open justice and the related freedom of expression create a presumption in favour of disclosure of all aspects of court proceedings which can be overcome only in exceptional circumstances. We refer here to the case of Re Victim X [2003]
3 NZLR 220 in which this Court upheld the setting aside of a suppression order in favour of the intended victim of a failed kidnapping plot. The Court
was mindful of “the sense of anguish” the result would cause the intended
victim and his family but held that the victim’s private interest did not
outweigh the fundamental principles of open justice and freedom of expression.
[6] Mr Smith QC submits that the disclosure of the identity of participants in the legal process under the open justice principle is not an immutable rule. He refers to R (Guardian News and Media Ltd) v Westminster Magistrates’ Court where Toulson LJ said:4
… The court has to carry out a proportionality exercise which will be fact- specific. Central to the court's evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others.
2 Scott v Scott [1913] AC 417 at 463.
3 Clark v Attorney-General (No 1) (2004) 17 PRNZ 554 (CA).
4 R (Guardian News and Media Ltd) v Westminster Magistrates’ Court [2012] EWCA Civ 420; [2013] QB 618 at [85].
[7] Mr Smith submits that the identity of the respondent is not in this case an area of legitimate focus or interest, and that the identity of the respondent is not essential to the public understanding of the legal issues involved in this case, so that the public’s right to know how the law has been applied in this particular case will not be substantially affected by suppression of the identity of the respondent. He refers
to the decision of Eady J in Ivereigh v Associated Newspapers Ltd where he said:5
10. It thus becomes a question of weighing competing rights as they come into play on the particular facts. This is a matter for judges to determine as a matter of individual discretion and judgment. In some cases there may be legitimate room for a difference of view, and it has been made clear in a number of authorities that the Court of Appeal will not interfere to overturn such individual judgments, unless there has been some misapplication of law or principle. Against this background, it is obvious that the matter cannot be determined merely by voicing the mantra of "open justice". The importance to be attached to that public policy consideration will depend upon the particular circumstances.
[8] Mr Smith also relies on R v Legal Aid Board Ex Parte Kaim Todner where
Lord Woolf MR said:6
8. A distinction can also be made depending on whether what is being sought is anonymity for a plaintiff, a defendant or a third party. It is not unreasonable to regard the person who initiates the proceedings as having accepted the normal incidence of the public nature of court proceedings. If you are a defendant you may have an interest equal to that of the plaintiff in the outcome of the proceedings but you have not chosen to initiate court proceedings which are normally conducted in public. A witness who has no interest in the proceedings has the strongest claim to be protected by the court if he or she will be prejudiced by publicity, since the courts and parties may depend on their co-operation. In general, however, parties and witnesses have to accept the embarrassment and damage to their reputation and the possible consequential loss which can be inherent in being involved in ligation. The protection to which they are entitled is normally provided by a judgment delivered in public which will refute unfounded allegations. Any other approach would result in wholly unacceptable inroads on the general rule.
9. There can however be situations where a party or witness can reasonably require protection. In prosecutions for rape and blackmail, it is well established that the victim can be entitled to protection. Outside the well established cases where anonymity is provided, the reasonableness of the claim for protection is important. Although the foundation of the exceptions is the need to avoid frustrating the ability of the courts to do justice, a party cannot be allowed to achieve anonymity by insisting upon it as a condition for being involved in the proceedings irrespective of whether
5 Ivereigh v Associated Newspapers Ltd [2008] EWHC 339 (QBD).
6 R v Legal Aid Board Ex Parte Kaim Todner [1999] QB 966 (CA) at 978.
the demand is reasonable. There must be some objective foundation for the claim which is being made.
[9] Mr Smith is correct in submitting that disclosure is not an immutable rule. A decision on name suppression will depend upon the facts of the particular case. It does not follow, however, that the task of the Court is to balance the public interest in knowing the identity of the person concerned in the case in hand, against the interests of that party in protecting his or her identity. To approach the matter in that way would be to underrate the importance of the principle of open justice.
[10] The principle that court proceedings are conducted so as to be open to public examination and scrutiny is an important constitutional principle. Open justice is the principal means by which the judicial branch of government is held accountable to the public. That accountability is a crucial constitutional safeguard in our largely unwritten constitution. It is that feature which means that an application for name suppression is not to be determined by a balancing exercise which, in addressing the public interest, weighs only the particular public interest in the case in hand.
[11] It will often be the case that the legal issues in a particular case will be so independent of the particular parties involved that the identity of those parties will be largely unnecessary to an understanding of the legal issues involved. That being so, it might be argued that the public identification of the persons involved in the particular case is not important, provided that the proceedings themselves are conducted in public. However, the authorities make it clear that applications for name suppression do engage the principle of open justice. Name suppression cannot be viewed as a discrete issue, separate from suppression of other material about the case. To be effective, an order for name suppression may require the suppression of other material which may enable the person concerned to be identified. That could lead to an application to suppress evidence or other material which may directly affect the public scrutiny of the Court’s processes and decision. Name suppression therefore carries the risk of an inroad into the open justice principle beyond suppression of the identity of the participants alone.
[12] There are some exceptions to the general rule. An example is the special regime for reporting Family Court proceedings.7 Another is illustrated by a recent English Court of Appeal decision concerning approval of compromises of personal injury damages claims by children.8 These exceptions generally relate to situations where personal privacy is particularly engaged. This is not such a case, and those examples provide no support for suppression in this case. Even in such exceptions, the open justice principle is relevant. For example, in JX MX v Dartford & Gravesham NHS Trust, where suppression was granted, the Court said:
[17] The identities of the parties are an integral part of civil proceedings and the principle of open justice requires that they be available to anyone who may wish to attend the proceedings or who wishes to provide or receive a report of them. Inevitably, therefore, any order which prevents or restricts publication of a party's name or other information which may enable him to be identified involves a derogation from the principle of open justice and the right to freedom of expression. Whenever the court is asked to make an order of that kind, therefore, it is necessary to consider carefully whether a derogation of any kind is strictly necessary, and if so what is the minimum required for that purpose.
[13] For these reasons, I am unable to accept Mr Smith’s submission that the task of the Court is to identify the particular public interest in the proceedings and the extent to which that would be compromised. Nor am I able to accept his submission that to the extent that the public and individual members of the public have a legitimate interest in the proceeding, that has now been satisfied as a result of the open hearing and the extensive reporting on the case that followed. Those submissions pay insufficient regard to the constitutional importance of the principle of open justice.
[14] Mr Smith further submits that there is no identifiable purpose or benefit to be gained from disclosure of the respondent’s identity and that disclosure of his name would only satisfy prurient curiosity that would serve no legitimate interest. As I have endeavoured to make clear, the public interest which is to be considered is wider than the public interest in this particular case. But, considering for the
moment only the public interest in this particular case, the Court must necessarily
7 Family Courts Act 1980, ss 11A to 11D.
8 JX MX v Dartford & Gravesham NHS Trust [2015] EWCA Civ 96, [2015] WLRCO) 77.
tread cautiously in assessing whether that public interest is legitimate or illegitimate. In Clark v Attorney-General Glazebrook J said:9
[43] No exceptional circumstances have been pointed to in this case justifying departure from the open justice principle. We apprehend that Mr Ellis’ main concern is that publicity will focus on what he sees as irrelevant matters, viz Mr Clark’s crimes, rather than his alleged treatment at the hands of prison officers. It is not for the Courts, however, to grade public interest factors into matters that can or should be reported and those that should not. The right to freedom of expression is better served by placing as few restrictions as possible on it and certainly by avoiding value judgments by the Courts as to the relative worth of matters the press chooses to publish.
[15] There is intense public interest in this case which carries dangers in disregarding any aspect of that interest. I now give an illustration of that. At the hearing, I referred counsel to a report on the National Business Review website dated 25 March 2015, following the hearing of the case on 23 March 2015. That was entitled “High-profile businessman borrowed 500k to invest with Ross”. It said:10
The person who obtained a $500,000 bank loan to invest in Ross Asset
Management is understood to be a high-profile Wellington businessman.
…
Suppression orders mean the person cannot be identified but sources say it is a Wellington property developer.
…
Property records show the investor has links to a property near where Ross also owned property.
…
[16] I deprecate that attempt by a responsible media organisation to speculate as to the identity of a person whose name has been suppressed. But while I may deprecate it, I cannot prevent it, or ignore it. The direct consequence of that news item is that another person has been wrongly identified as the person concerned. Readers of that article may know, or may speculate about, the identity of the “Wellington property developer” referred to. If the consequences of being identified as the investor
concerned are adverse for the respondent, they may be equally adverse for that
9 Clark v Attorney-General (No 1), above n 3.
10 Hamish McNicol “High Profile businessman borrowed 500k to invest with Ross”
person, or anyone else wrongly identified. That possibility of harm to others is an important consideration weighing against name suppression.
[17] That article also illustrates another danger of venturing into a consideration of whether the public interest is legitimate or illegitimate. The failure of RAM has been devastating for many investors. The public reaction of some investors has been quite vocal, and this is a factor upon which the respondent places considerable reliance in support of his application. Mr Smith submits that there is a tendency for persons in the respondent’s position to be wrongly perceived as partially responsible for such losses. While such a reaction would be wrong, it is a recognised human reaction to see conspiracy where there is loss. The author of a recent study says that very often, conspiracy theories take root among the causalities of political, economic or social change. Such theories can meet a need to explain and apportion blame for
one’s misfortune. These myths can be powerful.11
[18] There is a hint of conspiracy theory in the third part of the passage cited above from the NBR article. The perceived relevance of the supposed investor having the links referred to is presumably that this may suggest that person had some inside knowledge from Mr Ross of the state of RAM. The Court must bear in mind that suppression of the names of investors is likely to fuel conspiracy theories. That may be irrational and wrong, but it cannot be ignored.
[19] I stress that there is no suggestion that the respondent had some inside knowledge, or that he is other than an innocent investor, whose position differs from that of other innocent investors only in that he was repaid. I must address that issue more fully in my substantive judgment, and it is better that I say no more about it at this stage.
[20] Mr Smith also places reliance upon an order suppressing the pleadings which was made when suppressing the name of the investor in this case.12 He also relies on
the order for suppression in another RAM case. In that other case I made an interim
11 David Aaronovitch Voodoo Histories: How Conspiracy Theory Has Shaped The Modern World (Tantor Media, Old Saybrook, 2010) cited in Andrew Duguid On The Brink: How A Crisis Transformed Lloyds Of London (Palgrave McMillan, London, 2014).
12 Fisk v Name Suppressed (Minute) HC Wellington CIV-2012-485-2591, 19 August 2014.
order, unopposed, suppressing the name of another investor.13 I do not regard those orders as supporting permanent name suppression in this case. Williams J’s orders in this case were interrelated. My order in the other case was an interim order only, and I indicated that it would be reviewed when the case is next before the Court. When I made that order, there was already an interim order in place in this case. That illustrates the practical reality that, if name suppression is granted to one investor, it will be more difficult to resist an application for name suppression by other investors. The potential for any permanent order made here to have wider effect in that way would, if anything, weigh against the granting of name suppression in this case. I do not give that consideration weight in the exercise. But I do not regard the other interim order as supporting permanent name suppression in this case.
[21] Mr Smith submits that this is a test case, in which the particular identity of the respondent is by definition irrelevant, and that this should weigh in favour of name suppression.14 That issue was discussed in Clark v Attorney-General.15 The Court of Appeal noted that in Muir v Commissioner of Inland Revenue, that Court rejected the view that publication of the names of plaintiffs in test cases amounted to unacceptable unfairness.16 It is arguable whether this is properly a test case, since each case must depend on facts specific to the investor. To the extent that it is, it is not a consideration weighing in favour of suppression.
[22] Mr Smith also places reliance on the fact that the respondent has not initiated these proceedings and is before the Court in circumstances not of his making. The role of the person concerned in the proceedings is a relevant consideration.17 But it is not a consideration which carries much weight. It would be difficult to imagine a more unwilling participant in events giving rise to proceedings than the kidnap
victim in Re Victim X.18 There, Hammond J held that:19
13 Fisk v Name Suppressed [2014] NZHC 2797.
14 Fisk v Name Suppressed, above n 12.
15 Clark v Attorney-General, above n 3, at [41].
16 Muir and Others v Commissioner of Inland Revenue, (2004) 17 PRNZ 365 (CA).
17 R v Legal Aid Board Ex Parte Kaim Todner, above n 6, at 978.
18 Re Victim X [2003] 3 NZLR 220 (HC and CA).
19 At 228.
… The private and undoubtedly important interests of the victim cannot be said to outweigh the fundamental principles of open justice and freedom of expression, to which I have referred.
[23] With those more general points in mind, I turn now to consider the personal considerations raised by the respondent in support of his application for permanent suppression. Mr Smith places reliance upon the factors identified by Williams J in granting interim name suppression. He submits that I should not lightly depart from his conclusion. It is clear, however, that the threshold for a grant of interim name suppression is lower than that for permanent suppression. In Angus v H, Wild J noted the difference between interim suppression and permanent suppression in these
terms:20
I am not in doubt that, inherent in this Court’s jurisdiction, is a power to suppress the name of a party to civil litigation before the Court, if the due administration of justice requires it. Although there is a general presumption that justice should be openly done, that presumption may be rebutted by a situation where publication of a defendant’s name pre-trial may have irreversibly prejudicial consequences. I stress pre-trial, because suppression is unlikely to be granted after judgment has been entered, irrespective of what the judgment is. …
[24] Because I am concerned with permanent name suppression I must make my own assessment of the strength of the case for suppression, having regard to William J’s views, but recognising that he was concerned with the lower threshold of interim name suppression.
[25] Williams J said:21
[8] I have no doubt that the circumstances of the respondent in this case are such that the test for suppression is met. The starting point is that mere embarrassment from being embroiled in litigation, though real, will usually be insufficient to outweigh open justice considerations. But this case, in my view, is truly exceptional. The factors that weigh with me are as follows:
(a) This proceeding is very high profile attracting a great deal of media interest. It is likely to be reported simplistically in the media at best, and at worst, entirely misunderstood. The application amounts to a test case and it involves complex law. I understand that there are media reports already that
20 Angus v H HC Wellington CP129/99, 17 June 1999 cited with approval by the Employment Court in B v Virgin Australia (NZ) Employment and Crewing Ltd [2013] NZEmpC 105, and by this Court in Ryan v Auckland District Health Board HC Auckland CIV-2007-404-6177,
5 December 2008.
21 Fisk v Name Suppressed (Minute), above n 12.
the receivers are “charging” the respondents in these clawback applications. Such reporting suggests, quite erroneously, that there is a criminal element in the application. It is possible, even very possible, that such reporting will come to reflect badly on the respondent where such reflection would be completely wrong and unnecessary.
(b) Perhaps uniquely amongst similar suppression cases historically, there is no question but that the respondent was a good faith investor in Ross Asset Management Limited who had no knowledge of the precarious state of the company or that it was in fact a Ponzi scheme. It is agreed that in making the withdrawals the subject of these applications, the respondent had no intention to obtain an advantage over and above other creditors of the company. He simply wished to use the money held then by the company in a different commercial venture and made the withdrawals.
(c) He has at least arguable defences therefore in good faith, lack of grounds to suspect insolvency, the giving of value, and the suffering of prejudice.
(d) (Omitted)
[26] My general comments express my views on the matters in (a) and (b). As to (c), I must address these defences in my substantive judgment and I should not comment now, except to say that I do not regard the merits of the case as an important consideration on name suppression. If the respondent’s defences have merit, he will have the protection provided by a judgment delivered in public.
[27] As will be apparent, I take a different view from Williams J on the extent to which the matters in (a) and (b) justify name suppression, having regard to the higher threshold for permanent suppression.
[28] The respondent refers to the personal and professional embarrassment that the matter would cause him. He says that this is heightened by his belief that, consistent with the style of reporting to date, there would be sensationalised coverage and the media would take a prurient interest in him. He fears that reporting would not be proportionate, balanced, or accurate. He says that he is a very private person by nature. He would find that prurient type of publicity exceptionally difficult to live with. He says that these matters have caused him great mental stress.
[29] One may feel considerable sympathy for the position in which the respondent finds himself, in respect of the matters which he raises. However, those matters are not of a sort which could outweigh the important principle of open justice. Much more than the personal and professional embarrassment which the respondent describes is required. It is worthy of note that Lord Woolf, following his comment, set out at [8] above that parties and witnesses must in general accept the embarrassment and damage to their reputation and the possible loss which can be inherent in being involved in litigation, went on to note as exceptions situations where a party or witness can reasonably require protection. The respondent’s concerns are not of this sort. I do not consider that the respondent’s fear of harassment raises such concern for his safety as to indicate a need for protection.
[30] A useful crosscheck is to have regard to the circumstances in which name suppression may be ordered in criminal cases. Those have been quite recently restated by Parliament in the Criminal Procedure Act 2011. Section 202 requires a likelihood of undue hardship or danger to safety, before the names of witnesses, victims or connected persons can be suppressed. The concerns here would not meet that threshold.
[31] The only matter which requires specific consideration is the concern which the respondent raises as to the consequences for his business. That is the matter referred to by Williams J at (d), which I have omitted, for the same reason I now discuss this without referring to the nature of the respondent’s business, namely that it might point to his identity and provoke further speculation while the interim order is in force. The respondent says, and I readily accept, that he is at a sensitive stage with regard to the establishment of a new business on his own account. He fears that he is particularly vulnerable to the sort of publicity that his involvement as the respondent in this proceeding would bring. His business is currently his only source of income, such that having it significantly impaired would have severe financial consequences for him.
[32] While sympathising with the respondent’s position, I have reached the clear conclusion that a potential risk to his business does not reach the high level required to outweigh the importance of the principle of open justice. I find no sufficient basis
for a conclusion that potential customers who may be considering whether to use the respondent’s business may be swayed by irrational considerations which are not supported by, or are contrary to, any findings in the judgment. Accordingly, while the respondent’s fears as to the potential impact on his business are understandable, I do not consider that they are objectively supportable to an extent which gives rise to a real fear of consequences of the serious type which are necessary before an order for name suppression is justified.
[33] For these reasons, the application for permanent name suppression is refused. In accordance with my earlier intimation, the interim order for name suppression will remain in force until delivery of my substantive judgment in this proceeding and will then expire.
[34] Costs are reserved, for consideration after the substantive judgment has been delivered.
“A D MacKenzie J”
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