BETWEENMICHAEL NOEL JAMES HOSKING AND MARIE ANGELA HOSKING
Appellant
ANDSIMON RUNTING
First Respondent
ANDPACIFIC MAGAZINES NZ LIMITED
Second Respondent
ANDCOMMISSIONER FOR CHILDREN
First Intervener
ANDCOMMONWEALTH PRESS UNION (NZ)
Second Intervener
ANDACP MEDIA LIMITED
Third Intervener
Hearing:12, 13 and 14 August 2003
Coram:Gault P Keith J Blanchard J Tipping J Anderson J
Appearances: W M Wilson QC, M Chen and L C McGrath for Appellants
J G Miles QC and N S Gedye for Respondents S M Cooper for First Intervener B D Gray for Second Intervener S J Mills and J W J Graham for Third Intervener
Judgment:25 March 2004
JUDGMENTS OF THE COURT
Judgments
Paras No
Gault P and Blanchard J [1] – [174] Keith J [175] – [222] Tipping J [223] – [261]
Anderson J [262] – [271]
GAULT P AND BLANCHARD J
(DELIVERED BY GAULT P)
[1] The first respondent Mr Runting, a photographer, was commissioned by the second respondent, the publisher of the magazine New Idea! to photograph the appellants’ 18 month old twins. He did so, in the street in Newmarket. The appellants in this proceeding seek to prevent publication of the photographs. They seek to have the Court extend the law to provide them with a remedy.
[2] The law of civil liability may be said to be in transition. The impetus for development is coming not from the Judges by whom the common law has been developed over the centuries, but from other major movements influencing the law. The emergence internationally of concern for the protection of human rights and of individual consumers provides examples reflecting the shift in emphasis from the traditional approach to tort liability (liability for reprehensible conduct) to the protection of identified rights. But even the great cases of the past, accepted as representing significant developments in the law, can be seen as recognising the need to provide remedies for interference with rights: Entick v Carrington (1765) 19 State Tr 1030, 95 ER 807 and Ashby v White (1703) 2 Ld Raym 938, 92 ER 126 are examples. Donoghuev Stevenson [1932] AC 562 can be said to represent the foundation of consumers’ rights.
[3] The law governing liability for causing harm to others necessarily must move to accommodate developments in technology and changes in attitudes, practices and values in society. These are drawn into the law in the main by legislation, often these days to conform with obligations assumed under international treaties and conventions. Such developments, introduced by legislation, emerge from processes which employ extensive consultation and procedures designed to take into account all affected interests.
[4] From time to time, however, there arise in the courts particular fact situations calling for determination in circumstances in which the current law does not point clearly to an answer. Then the courts attempt to do justice between the parties in the particular case. In doing so the law may be developed to a degree. It is because the legislative process…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Hosking v Runting [2004] NZCA 34
Case
[2004] NZCA 34
Decision Date
CaseChat Overview and Summary
The Court of Appeal was asked to decide whether there was a cause of action for invasion of privacy in New Zealand, and if so, whether it was available in the circumstances of this case. The Court of Appeal was also asked to decide whether the High Court was correct to hold that there was no breach of confidence in the circumstances of this case. The Court of Appeal held that there was no cause of action for invasion of privacy in New Zealand, and that the High Court was correct to hold that there was no breach of confidence in the circumstances of this case. The Court of Appeal held that the right to freedom of expression was not limited by publication of true information which did not have the quality of legally recognised confidentiality, and that the proposed tort of invasion of privacy was unnecessary and a disproportionate response to rare, almost hypothetical circumstances. The Court of Appeal held that the Court should not lose sight of the fact that this litigation came into being to prevent the publication of photographs of people in a public street, and that there was nothing in the least personally embarrassing or distressing about the material which might be published. The Court of Appeal held that the Court was unanimous in holding that there was no right in anyone to prevent publication, and that the majority had declared that there was a new civil liability for publishing facts about a person. In the respectful view of the majority, this new liability, created in a sidewind, was amorphous, unnecessary, a disproportionate response to rare, almost hypothetical circumstances and fell manifestly short of justifying its limitation on the right to freedom of expression affirmed by NZBORA.