Fujifilm Business Innovation New Zealand Limited v Whittaker

[2022] NZHC 1775

ORDER PROHIBITING PUBLICATION OF NON-PARTY’S IDENTITY

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2073

[2022] NZHC 1775

BETWEEN

FUJIFILM BUSINESS INNOVATION NEW ZEALAND LIMITED

First plaintiff

FUJIFILM LEASING NEW ZEALAND LIMITED
Second plaintiff

FUJIFILM BUSINESS INNOVATION ASIA PACIFIC PTE LIMITED

Third plaintiff

AND

NEIL WHITTAKER

First defendant

Continued overleaf

Hearing:

On the papers

Counsel:

M D O’Brien QC, M T Davies and W N Fotherby for plaintiffs R S Reed QC, J A Craig and J I Kerkin for first defendant

D P Hoskin and P J Muir for second defendant

S M Hunter QC and M McGoldrick for third defendant A Leopold SC, R M Stewart and A J Wakeman for fourth defendant

A H Waalkens QC for non-party

Date of judgment:

22 July 2022

Reissued:

28 September 2022 (anonymised)

JUDGMENT OF JAGOSE J

[Suppression of non-party’s identity]

This judgment was delivered by me on 22 July 2022 at 4.00pm. Pursuant to Rule 11.5 of the High Court Rules.

…………………………

Registrar/Deputy Registrar

FUJIFILM BUSINESS INNOVATION NEW ZEALAND LTD v WHITTAKER [2022] NZHC 1775 [22 July 2022]

MARK DONALD ALLRIGHT

Second defendant

GAVIN POLLARD
Third defendant

ERNST & YOUNG
Fourth defendant

[1]                 IJ’s identity is prohibited from publication by order of the New Zealand Institute of Chartered Accountants Appeals Council.1 The prohibition arose in connection with a disciplinary proceeding relating to the subject matter of the present proceeding.

[2]                 IJ seeks such prohibition be made permanent in this proceeding, in which he may be called as a witness. Presently, publication of his name in connection with this proceeding is prohibited on an interim basis,2 that is, pending further order of the Court.

[3]                 The defendants consent to IJ’s application. The plaintiffs express themselves as “neutral”, but observe he and the disciplinary proceeding will be the subject of evidence at trial, and suggest any order continue on an interim basis.

[4]                 The issue of comity — this Court’s recognition, with mutual respect and restraint, of the Council’s proper sphere of influence and privileges — arises.3 Under the New Zealand Institute of Chartered Accountants Act 1996,4 the Council is the ultimate body charged with, among other things, determining if to prohibit publication of “the name of, or any matter that may identify, the person to whom any [disciplinary] hearing relates”.5 As such, its order prohibiting publication of IJ’s identity in that connection is to be respected by this Court.

1      J v The Professional Conduct Committee of [the] New Zealand Institute of Chartered Accountants, New Zealand Institute of Chartered Accountants Appeals Council, 27 September 2021 at [84].

2      Fujifilm Ltd v Whittaker HC Auckland CIV-2017-404-2073, 24 October 2019 at [8(a)].

3      Attorney-General v Taylor [2017] NZCA 215, [2017] 3 NZLR 24 at [73], citing the Parliamentary Privilege Act 2014, s 4(1)(b).

4      New Zealand Institute of Chartered Accountants Act 1996, s 6(h).

5      Rules of the New Zealand Institute of Chartered Accountants effective 26 June 2017, r 13.62.

[5]                 I recently addressed the distinction between interim and permanent name suppression under s 200 of the Criminal Procedure Act 2011.6 In doing so, I observed:

‘Interim’ and ‘permanent’ name suppression, if meaning the former until determination of the latter, may be misnomers. Section 200(4)–(5) allows an “interim order” forbidding publication to be made if a defendant on first appearance “advances an arguable case” for publication’s qualifying likelihood, to expire on second appearance unless renewed. ‘Renewal’ requires the court be “satisfied” as to that qualification.

It is unclear from s 200 alone if ‘renewal’ means of an interim order, but now to the Court’s satisfaction, or of an order or further order “that is to have effect permanently”. Section 208 of the 2011 Act provides the answer:

Duration of suppression order and right of review

(1)A suppression order—

(a)    may be made permanently, or for a limited period ending on a date specified in the order; and

(b)    if it is made for a limited period, may be renewed for a further period or periods by the court; and

(c)    if it is made permanently, may be revoked by the court at any time.

(2)If the term of a suppression order is not specified, it has permanent effect.

(3)A suppression order may be reviewed and varied by the court at any time.

Reading ss 200 and 208 together, ‘interim orders’ only are those open to being made under s 200(4). Otherwise — unless made “for a limited period ending on a date specified in the order” (or “renewed for a further period or periods”, inferentially to specified dates) — suppression orders (including if made for an unspecified term) are “made permanently”, but nonetheless open to review and variation “at any time”.

[6]                 No distinction between suppression orders in criminal and civil proceedings seems justified. The concept of ‘permanent’ name suppression, if meaning not open to reconsideration in changed circumstances, sits uneasily with the usual meaning of permanence in or finality of court proceedings.7 In determining to grant ‘permanent’ name suppression, the Court is not conclusively deciding any legal dispute (subject only to appeal), but conferring a procedural privilege. The Court should be entitled to revisit that conferral if circumstances require, without having to traverse issues of its decision’s contended finality.

6      R v EF [2022] NZHC 1741 at [11]–[13].

7      R v Smith [2003] 3 NZLR 617 (CA) at [36]; Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633; and Gibson v Official Assignee [2019] NZHC 532 at [21]–[22].

[7]Notably, as to the Council’s prohibition of publication of IJ’s identity, Rule

13.63 provided:8

An order made under Rule 13.62 shall continue in force for the period specified in the order or, if no period is specified, until the order is revoked by the Disciplinary Tribunal or the Appeals Council, as the case may be.

No greater privilege should be conferred by operation of comity. My order may be revoked, and may be reviewed and varied, by the Court at any time.

[8]I accordingly order IJ’s identity is prohibited from publication.

—Jagose J

Counsel/Solicitors:

M D O’Brien QC, Auckland S M Hunter QC, Auckland R S Reed QC, Auckland

A H Waalkens QC, Auckland Meredith Connell, Auckland Simpson Grierson, Auckland

Steindle Williams Legal Limited, Auckland SBM Legal, Auckland

Fee Langstone, Auckland A Leopold SC, Australia

Wotton + Kearney, Wellington

8      Now r 13.79 of the Rules of the New Zealand Institute of Chartered Accountants effective 4 December 2020, referring to r 13.78.