H v S
[2016] NZHC 433
•14 March 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-002404 [2016] NZHC 433
BETWEEN H AND H
First Plaintiffs
XYZ LIMITED Second Plaintiff
AND
S
First DefendantS and others as trustees of the T TRUST Second Defendants
Hearing: On the papers Judgment:
14 March 2016
JUDGMENT OF ASHER J (on anonymisation)
This judgment was delivered by me on Monday, 14 March 2016 at 3 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Davenports Harbour Lawyers, Auckland. KG Davenport QC, Auckland.
Lowndes Associates, Auckland.
RJ Katz QC, Auckland.
H v S [2016] NZHC 433 [14 March 2016]
Introduction
[1] I am issuing a judgment on an interlocutory issue on this file. I had noted that in earlier decisions that have been released on the file, the parties’ names and details have been anonymised. I inquired as to whether anonymisation was still appropriate.
[2] The plaintiffs advise that they no longer seek anonymisation. This was significant as anonymisation had been previously granted primarily on the basis of the plaintiffs’ claims to privilege concerning certain overseas transactions. I sought submissions as to the reasons why anonymisation should continue.
[3] The defendants have filed submissions and an affidavit of the first defendant in support of anonymisation. The plaintiffs who no longer support anonymisation have filed a memorandum to that effect. There is no formal notice of opposition or affidavits in opposition provided.
[4] In the first defendant’s affidavit he asserts that his professional practice is vulnerable, and is likely to be irreparably damaged should information about the allegations against him fall into the public domain. His counsel asserts that the claims against him are tantamount to claims of fraudulent conduct. The first defendant also refers to various personal difficulties and pressures that he and his family faces, and their vulnerability to adverse publicity. He claims that the viability of his practice and the stability of his family would be destroyed by publication.
[5] Additionally, in response to interim injunction proceedings, the first defendant has given undertakings to the Court not to disclose details about the plaintiffs to third parties. He asserts that the plaintiffs are seeking to muzzle him by the undertakings, and yet to remain free to publish any judgment in the proceeding about the pending substantive trial, with consequent negative publicity for him.
[6] I have difficulty with this last submission. The undertakings in question related to the disclosure of privileged information to specific authorities, rather than to any general publicity about the fact of the proceedings. These undertakings protect the plaintiffs’ confidential information, which the first defendant received as
their lawyer and subject to the obligations on a solicitor-client relationship, despite the evident breakdown of that relationship. He is bound by those. The undertakings have no relationship to the question of name suppression, as the first defendant would be able to respond to general publicity about the case, and to claim that he had done nothing unlawful, without breaching his undertakings.
Discussion
[7] As a general rule, the principle of open justice works against anonymisation of minutes or rulings in civil proceedings. It requires that the parties’ true names be used in a judgment, and that the general nature of a proceeding be known. Following Clark v Attorney-General (No 1), and Brown v Attorney-General, exceptional or extraordinary circumstances compelling the displacement of the principle are required before suppression orders, including for anonymisation, are
granted.1 In JX MX v Dartford & Gravesham NHS Trust, the English Court of
Appeal said:2
[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.
[8] I accept that when it comes to documents and the detail of the proceedings different considerations apply and these are generally covered by the civil Access to Court Documents rules, as detailed in the High Court Rules.3
[9] This is still the pre-trial stage of proceedings. It is recognised in the Access to Court Documents rules4 and in the case law, that pre-trial the Courts can place
more weight on privacy concerns and less weight on open justice than at the trial
1 Clark v Attorney-General (No 1) [2005] NZAR 481 (CA); Brown v Attorney-General [2006] NZAR 450 (CA).
2 JX MX v Dartford & Gravesham NHS Trust [2015] EWCA Civ 96, [2015] WLRCO) 77, cited with approval in Fisk v Name Suppressed [2015] NZHC 827 at [12].
3 High Court Rules, Part 3, subpart 2, rr 3.5–3.16.
4 High Court Rules, r 3.13.
phase when matters are being argued in open court.5 Part of the reasoning behind refusing access to court documents at this first stage is that access does not further the cause of open justice, as the documents cannot shed light on a proceeding where none has occurred, and when allegations in statements of claim and defence and other documents are contested and not in final form they are less likely to be accurate.6 Judgments and minutes are in a different category to other Court documents, and can be accessed as of right under rr 3.5 and 3.8 of the High Court Rules (subject to a general judicial discretion to direct that a document not be accessed).7
[10] I consider that the reasoning and rules in relation to access to court documents have some relevance to assessing suppression of civil judgments at a pre- trial stage. In this case, despite the four contested hearings which have been heard in this Court in relation to this claim, there has been no evaluation of the contentions in the statement of claim. They may be changed and refined, and the claims as to the first defendant’s breaches of duty are untested.
[11] I also refer to the criminal name suppression regime, and the onerous requirements placed on defendants to achieve name suppression.8 Naturally that regime has no direct relevance to the anonymisation of civil judgments, and the considerations that apply are dominated by the particular interest that the public has in knowing the names of those who are being prosecuted for criminal wrongdoing by the state. In contrast, the suppression of details of Youth Court proceedings are dominated by the particular interests of children and the need to protect them, which could be an exceptional circumstance in civil proceedings. There is a specific
statutory regime for Family Court proceedings.9
5 Commerce Commission v Air NZ Ltd [2012] NZHC 271; Sylvia Park Business Centre Ltd v Brookfield Multiplex Construction (NZ) Ltd (in liq) [2014] NZHC 2058 at [10]; Heart of the City Inc v Swney [2015] NZHC 1250; Hotchin v APN New Zealand Ltd [2011] NZAR 464, (2011) 20
PRNZ 484 at [15]; Rice v Heaney [2014] NZHC 1311, (2014) 22 PRNZ 159.
6 See Ellis J’s discussion of this principle in Rice v Heaney, above n 5, at [17]–[19].
7 High Court Rules, r 3.8(3).
8 Criminal Procedure Rules, Part 6, rr 6.1–6.10.
9 Family Courts Act 1980, ss 11B–11D and Children, Young Persons, and their Families Act 1989, ss 437A and 438.
[12] I am conscious that the requirement to establish exceptional circumstances before there is anonymisation may be questioned in light of the recent Court of Appeal judgment in Jay v Jay.10 However, that view appears to have been formed without a reference to the clear prior authority to the contrary in both Clark and Brown.11 It was stated in Clark 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”.12
Similarly, the Court stated “the right to freedom of expression is better served by placing as few restrictions as possible on it …”.13 It is clear that a high standard for civil claims is envisaged as appropriate. This has been the approach of High Court Judges in recent decisions.14 This standard has been recently emphasised in Fisk v Name Suppressed, in which the principle of open justice was expressed to be linked to the identity of those involved in court proceedings as a necessary consequence of the public administration of justice.15
[13] Therefore, there must be a compelling reason to displace the principle of open justice before an anonymisation order will be made. There must be more than the potential embarrassment and personal or business discomfort that may be suffered by litigants when their involvement in civil proceedings becomes known.
This application
[14] On the material I have before me I am not persuaded that the first defendant’s undertakings create a compelling reason for anonymity. The assertions, however, that he makes in his affidavit about the gravity of the allegations made against him and the likely damage that publicity of their detail could do to his practice, and
personally to him and his family, are more compelling.
10 Jay v Jay [2014] NZCA 445, [2015] NZAR 861.
11 Clark v Attorney-General, above n 1, and Brown v Attorney-General, above n 1. See the discussion in Musuku v Commissioner of Inland Revenue [2015] NZHC 1584, (2015) 27 NZTC
22-015 and Y v Attorney-General [2015] NZHC 844 on the Jay v Jay approach.
12 Clark v Attorney-General, above n 1, at [42].
13 At [43].
14 Y v Attorney-General, above n 11. See also the earlier cases of Cross v Attorney-General HC Wellington CIV-2006-485-1173, 7 November 2006; Peters v Birnie HC Auckland CIV-2009-
404-8119, 19 March 2010; P v Attorney-General HC Wellington CIV-2006-485-874, 22 July
2010 at [2]; and Y v Z [2015] NZHC 844 at [35].
15 Fisk v Name Suppressed, above n 2, at [4].
[15] Given the very lengthy and detailed allegations that are made, it is difficult to fully evaluate the gravity of the assertion of irreparable damage on publication. The defendants absolutely deny any wrongdoing. The first defendant’s professional practice is specialised and depends particularly on trust. If there is to be any publicity of judgments and minutes it will emerge that the heart of the proceeding is that it is a claim that the plaintiffs and the first defendant entered into a joint venture, and there are claims, amongst others, of a serious breach of fiduciary duty. The allegations, denied as they would be, could be seen as grave and reflecting on the first defendant’s ability to practice, and certainly to practice as a trust advisor. I can see that it could lead to the widespread withdrawal of instructions.
[16] The view that I reach on anonymisation on this application, at this stage in the proceedings, must be reached on the basis of only a superficial knowledge of the issues and before any view can be reached on the truth of the allegations. It can therefore only be interim. Acknowledging that, I am persuaded by the affidavit of the first defendant that he may suffer irremediable damage to his practice with consequent grave implications for his own wellbeing and that of his family if there is not anonymisation. Even if it was only the names and the broad nature of the proceeding that was published, there is a strong risk that this could cause such damage. At this first stage in proceedings that could be very unfair to the plaintiffs, going far beyond the usual awkwardness of publication. This is a compelling reason to suppress names.
[17] I conclude therefore that there is a compelling reason, displacing the principle of open justice, which requires that the judgment that I am about to issue should be anonymised and I will do so. This decision relates only to this judgment, and the position will have to be assessed again at later stages in the proceedings.
Result
[18] The judgment that will issue will be anonymised, with the parties referred to
on the same basis as the anonymisation in the earlier decisions that have been released.
……………………………..
Asher J
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