Harrison v Auckland District Health Board

[2012] NZHC 3133

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES OR IDENTIFYING PARTICULARS OF SECOND, THIRD AND FOURTH DEFENDANTS

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-6634 [2012] NZHC 3133

BETWEEN  PJ HARRISON First Plaintiff

ANDAJ HARRISON Second Plaintiff

ANDAUCKLAND DISTRICT HEALTH BOARD

First Defendant

(continued over)

Hearing:         (On the papers) Judgment:       23 November 2012

JUDGMENT OF BREWER J

Solicitors:

Meredith Connell, Auckland:  [email protected]

Fisher Lamberg, Auckland:  [email protected]

New Zealand Nurses Organisation, Auckland: [email protected] Health and Disability Commissioner, Wellington:  [email protected] Crown Law, Wellington:  [email protected]

Counsel:

H Waalkens QC, Auckland:  [email protected]

Copy for:

P J Harrison/A J Harrison: [email protected]

HARRISON V AUCKLAND DISTRICT HEALTH BOARD HC AK CIV-2011-404-6634 [23 November 2012]

AND  F

Second Defendant

AND  G

Third Defendant

AND  H

Fourth Defendant

ANDHEALTH AND DISABILITY COMMISSIONER

Fifth Defendant

ANDCORONIAL SERVICES UNIT Sixth Defendant

Introduction

[1]      This matter has come before me as Duty Judge.

[2]      The plaintiffs are the sister and niece respectively of Malcolm Armstrong Harrison.   Mr Harrison died in hospital on 2 November 2007.   The coroner, in a report  released  on  17 October 2008,  concluded  that  the cause of his  death  was congestive cardiac failure following a head injury which contributed indirectly to his death.

[3]      The plaintiffs were dissatisfied with the coroner’s report.   On 19 October

2011, they commenced proceedings in this Court against the defendants.   The plaintiffs  represented  themselves.      In   very  broad   terms,   they  claimed  that Mr Harrison’s death was caused by the misadministration of drugs (in respect of which  they  sued  the   first  to  fourth  defendants).     They  also  claimed  that Mr Harrison’s death was not properly investigated (in respect of which they sued the fifth and sixth defendants).

[4]      The defendants applied to strike out the proceeding.   On 15 October 2012, Associate Judge Abbott granted their applications.  He found that the statement of claim did not disclose a reasonable cause of action against any of the defendants.  He held also that the statement of claim was vexatious and therefore an abuse of the process of the Court.

[5]      On 1 November 2012, Abbott AJ released a Minute recording that he had received a memorandum from the plaintiffs seeking an order that the judgment not be published.   The memorandum had been referred to the defendants who either opposed the request or did not wish to be heard on it.

[6]      In the Minute, Abbott AJ directed:

(a)       The judgment was not to be published before 5 November 2012;

(b)The  plaintiffs  were  to  file  and  serve  an  application  for  further suppression by 5 pm, 5 November 2012.

[7]      On 5 November 2012, the plaintiffs attempted to file a document intituled “Notice of Opposition to Internet Publication”.   The registry refused to accept the document as it does not comply with the High Court Rules and does not comply with the direction of Abbott AJ.  On 6 November 2012, by email, the registry advised the plaintiffs of the need to amend the document.  The plaintiffs sent another copy of the same document.   By email of 7 November 2012, the registry again advised the plaintiffs of the requirement to file an application.

[8]      No application has been received by the registry, although I note that a letter dated 14 November 2912 (sic) was sent to the Chief High Court Judge complaining about the situation.

Discussion

[9]      Documents filed in civil proceedings should comply with the High Court Rules.  The “Notice of Opposition to Internet Publication” complies neither with the Rules nor with Abbott AJ’s direction.

[10]     I have, however, read the “Notice of Opposition to Internet Publication” in order to decide whether it reveals any meritorious ground for staying or suppressing publication of the judgment.

[11]     The High Court has an inherent jurisdiction to make an order, binding on the public and the media, suppressing publication of a name.[1]    However, the starting point for considering suppression in a civil context is that the freedom of the press to report Court proceedings fairly and accurately should not be unnecessarily denied.[2]

There is no onus on an applicant to show that there are exceptional circumstances.

principle of open justice.[3]

[1] Taylor v Attorney-General [1975] 2 NZLR 675 (CA).

[2] Vasan v Medical Council of New Zealand [1992] 1 NZLR 310 at 311-312.

[3] ASB Bank Ltd v AB [2010] 3 NZLR 427.

[12]     I have not found a case where an entire judgment in the civil jurisdiction was suppressed,  but  in  my  view  the  inherent  jurisdiction  would  extend  to  such suppression  if  that  were  compatible  with  the  principle  of  open  justice  in  the particular circumstances.  In Re T,[4]  McMullin J declined an application to prohibit the publication of his judgment in a case where a person underwent a surgical sex change  operation  and  then sought  a  declaration  from  the Court  recognising his

changed sex.   His Honour did not deny that he had jurisdiction but permitted publication of the judgment subject to prohibitions on the publication of portions which might identify the applicant.  Those prohibitions did not extend to publication in law reports or in reports of any clinical, medical or medical-legal society.

[4] Re T [1975] 2 NZLR 449.

[13]     In this case, I can see no grounds for suppression of any part of the judgment. The plaintiffs’ opposition to publication is (broadly) twofold.  Firstly, they disagree vehemently with the conclusions reached by Abbott AJ and wish to go to the Court of Appeal.[5]     Secondly, they regard the publication of the judgment as a threat to public safety because, in their view, it advocates “lethal polypharmacy passing it off as ‘appropriate’ against all the New Zealand and international safety warnings and

standards”.  There is nothing in either of those grounds which would lead me to take steps to cause the plaintiffs’ document to be accepted by the registry.  An application to an appellate court to challenge a judgment is not a ground for suppressing its publication. The judgment itself could not incite a risk to public safety.

[5] I do not comment on the jurisdiction of that Court to receive the appeal.

[14]     The registry was right to refuse to accept the plaintiff’s document.

Decision

[15]     The plaintiffs have not complied with the direction of Abbott AJ that they file and serve an application for further suppression by 5 pm, 5 November 2012.

Brewer J