Grace v Orion New Zealand Limited
[2020] NZHC 1881
•30 July 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2017-409-000454
[2020] NZHC 1881
BETWEEN C GRACE AND OTHERS
Plaintiffs
AND
ORION NEW ZEALAND LIMITED
First Defendant
LEISURE INVESTMENTS NZ LIMITED PARTNERSHIP
Second Defendant
Hearing: (Determined on the papers) Counsel:
C M Stevens and B Cuff for plaintiffs
T C Weston QC, R Scott and S Crosbie for First Defendant G N Gallaway, and W J Hamilton for Second Defendant
Judgment:
30 July 2020
JUDGMENT OF GENDALL J
As to Media Applications
This judgment was delivered by me on 30 July 2020 at 3:30 p.m. pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date
GRACE v ORION NEW ZEALAND LIMITED [2020] NZHC 1881 [30 July 2020]
[1]Before the Court are three media coverage applications:
(a)an application filed 31 January 2020 by NZME seeking permission to take photos (but not to film) and also to record sound at this trial on standard conditions;
(b)an application filed 20 July 2020 by Radio New Zealand seeking permission to film, take photos and record sound at this trial, again on standard conditions; and
(c)an application filed on 21 July 2020 by Mediaworks seeking permission to film, take photos and record sound at this trial, again on standard conditions.
[2] Memoranda have been filed relating to the media applications noted in [1](b) and (c) above by counsel for the plaintiffs on 24 July 2020, counsel for the first defendant on 23 July 2020 and counsel for the second defendant on 24 July 2010.
[3] So far as the first media application from NZME noted at [1](a) above is concerned, it attracted no opposition and on 14 February 2020 I issued a minute relating to that application that read as follows:
Given that no opposition has been voiced to this media application, the public interest in this proceeding and all the prevailing circumstances, the application is granted on standard media guideline terms.
[4] Again, so far as that NZME application was concerned, it did not seek permission to film the proceedings. Rather, it sought permission only to take photos and to record sound.
[5] Although my minute of 14 February 2020 simply indicated that the NZME application was granted on standard media guideline terms, matters have arisen since in the memoranda filed by counsel for the parties which mean that this direction now needs to be amended slightly. I discuss the need for this and the issue concerned below which relates to all three present media applications. Accordingly, the directions made
relating to the NZME application in my minute of 14 February 2020 are revoked and the new order relating to this application is set out below.
[6] I turn now to the media applications noted in para [1](b) and (c) above. I address these in particular, but together with my supplementary comments relating to the NZME application and the new order to be made regarding this.
[7] With respect to the applications before me, counsel in their various memoranda and their submissions made on 29 July 2020 have expressed the following views:
(a)So far as the plaintiffs are concerned, their counsel, Mr Stevens, advises that the plaintiffs have no objection to the media being present at and reporting fully on the hearing given the wide public interest in the issues around the cause and spread of the fire in question. The plaintiffs do not seek any restrictions being placed on reporting, filming photographing or sound-recording here.
(b)So far as the first defendant is concerned, its counsel, Mr Weston QC, indicates that the first defendant does not have any fundamental objection to the media reporting at the hearing, in particular relating to the first defendant’s expert witnesses and to the evidence to be provided by Mr Steven McDonald who is a senior employee at Orion. But this is subject to one particular qualification. This is in so far as eight witnesses who are named in the schedule to Mr Weston’s 23 July 2020 memorandum are concerned. Mr Weston says these are witnesses who should not be filmed, photographed or recorded. This is on the basis that these particular witnesses are present or former employees of contractors to the first defendant and they are giving evidence about work they undertook as part of their employment. He says the witnesses are unfamiliar with giving evidence in Court and added pressures of being filmed, photographed or recorded is likely to affect the quality of their evidence and will add to the stress and anxiety of them being called to give evidence. Their privacy, Mr Weston contends, should also be protected here. Mr Weston also draws to the
Court’s attention what he says are “some sensitive issues involved in this trial” which he says may need discussion as the trial progresses.
(c)Lastly, Mr Gallaway, counsel for the second defendant, in his 24 July 2020 memorandum generally mirrors the submissions advanced to me by Mr Weston for the first defendant. He says that overall the second defendant has no issue with the in-court media coverage sought but that it has similar concerns, as I have outlined above, in relation to filming, photography and recording of several of its witnesses. These are Mr Johnstone, Ms Newman, Mr McVicar and Mr Murrell. This, he says, is on the basis that, first, Mr Johnstone is a former employee of, and current contractor to, the second defendant, secondly, Ms Newman is a current employee of the second defendant, thirdly, Mr McVicar, via his company, is the owner of land upon which the Adventure Park is situated and he is a member of the Park’s Board and, finally, Mr Murrell is a third party contractor who assisted the Adventure Park with removing carriers from the chairlift on 15 February 2017 and later in the day assisted the Fire Service with fire suppression efforts in the Worsely Road area, offering this assistance voluntarily. Mr Murrell, according to Mr Gallaway, has no stake in these proceedings.
(d)Again, Mr Gallaway suggested these named witnesses are all unfamiliar with giving evidence and the pressure of being filmed, photographed, or recorded will cause them stress and anxiety which is likely also to affect the quality of their evidence.
[8] Overall, I accept there is some merit in considering further these arguments advanced on behalf of the first defendant and the second defendant suggesting that lay employed or connected parties to the respective defendants in particular cases should not be filmed, photographed or recorded. On that aspect, however, the media outlets concerned have had no opportunity at this point to provide any submissions to me with respect to those arguments.
[9] Under all the circumstances here, in my view, the appropriate course is for the three media applications before me to be granted and to allow filming, photographing or recording of all witnesses in this trial as of right, apart from those witnesses I note below (which I will call for present purposes “the vulnerable witnesses”). When each of these vulnerable witnesses are called to give evidence then further submissions are to be made to me by all parties (including the media if they wish) regarding this issue of whether filming, photographing or sound-recording of that witness is to be permitted. In each case I will then make the appropriate direction based on all the appropriate circumstances at the time.
[10]Those vulnerable witnesses are:
(a)So far as the first defendant is concerned, Lloyd Clausen, John O’Donnell, Chris White, Peter Allen, Scott Daniels, Garry Heyes, Jeffrey Price and Ken Jones.
(b)So far as the second defendant is concerned, Mr Johnstone, Ms Newman, Mr McVicar and Mr Murrell.
(c)So far as the plaintiff’s witnesses are concerned, those lay witnesses (excluding any expert witnesses) of the plaintiffs who have not provided in advance their consent to be filmed, photographed or sound recorded.
[11] Orders to the extent outlined at paras [9] and [10] above are now made. Effectively, this largely approves the media applications of first NZME, secondly, Radio New Zealand and, thirdly, Mediaworks, this to be on standard media guideline terms, subject to the conditions and possibly the limited restrictions that will follow as I outline above.
...................................................
Gendall J
Solicitors:
DLA Piper New Zealand, Auckland Kennedys, Auckland
Chapman Tripp, Christchurch
Copy to
Craig Stevens Barrister, Wellington Thomas Weston QC, Barrister, Tai Tapu
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