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JOHN ATCHERLEY DEW AND DISCOVERY NZ LTD

JOHN ATCHERLEY DEW AND DISCOVERY NZ LTD

Case [2023] NZHC 2105 8 August 2023

Defamation

Public Interest

Responsible Communication

Right to Freedom of Expression

Interim Injunction

Appeal

Media & Entertainment Law

Defamation Law

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ORDER SUPPRESSING THE NAME OF THE APPLICANT AND

PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA

OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL DETERMINATION OF ANY APPEAL

THAT IS FILED BY 5 PM THURSDAY 10 AUGUST 2023.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-421

[2023] NZHC 2105

IN THE MATTER OF Claims for defamation and invasion of privacy

BETWEEN

JOHN ATCHERLEY DEW

Plaintiff

AND

DISCOVERY NZ LTD

Defendant

Hearing: 7 August 2023

Counsel:

P A McKnight for the Plaintiff

J W J Graham and T F Cleary for the Defendant

Judgment:

8 August 2023

JUDGMENT OF PALMER J

Counsel/Solicitors
P A McKnight, Barrister, Wellington Thomas Dewar Sziranyi Letts, Lower Hutt Chapman Tripp, Auckland

DEW v DISCOVERY NZ LTD [2023] NZHC 2105 [8 August 2023]

Summary

[1] On the afternoon of 7 August 2023, I heard argument on an urgent application for an interim injunction, restraining Discovery NZ Ltd (Discovery) from screening a news item on Three’s Newshub at 6 pm that evening. The story concerns allegations that the applicant, the recently retired Cardinal John Dew, engaged in serious criminal sexual misconduct in 1977. I declined the application but issued an interim injunction to preserve the applicant’s appeal rights as long as the appeal is filed within three working days of my decision yesterday and is prosecuted in the Court of Appeal without delay. This judgment explains the reasons for my decision.

[2] In summary, the applicant has not met the high legal threshold for an interim injunction. He has not shown there is no reasonable possibility that Discovery has a defence against defamation or that there is little legitimate public concern in the information to be released. The courts deal most cautiously and warily with injunctions to prevent responsible media organisations from reporting stories in advance. That is especially so where the story is of public interest, as this one is. The right to freedom of expression of the complainant to tell their story, of Newshub to report it, and of the public of New Zealand to receive the information, weighs heavily here. If what is reported is defamatory and the defences fail, Discovery will be liable for significant damages. But I do not consider that the Court stepping in now to prevent publication by issuing an interim injunction would be a reasonable limit on the right to freedom of expression that can be demonstrably justified in a free and democratic society. Neither do I consider it would be in the overall interests of justice.

What happened?

[3] The applicant was ordained as a priest in 1976 and was made a Cardinal in 2015. Until 5 May 2023, he was Archbishop of Wellington, the leader of the Catholic Church in New Zealand and a member of Te Rōpū Tautoko which coordinates engagement between the New Zealand Catholic Church and the Royal Commission of Inquiry into Historical…

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.

Continue reading JOHN ATCHERLEY DEW AND DISCOVERY NZ LTD

Details

AGLC: JOHN ATCHERLEY DEW AND DISCOVERY NZ LTD [2023] NZHC 2105
Case: [2023] NZHC 2105
Decision Date: 8 August 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the case of John Atcherley Dew and Discovery NZ Ltd was heard on 7 August 2023. The plaintiff, Cardinal John Dew, sought an interim injunction to prevent the defendant, Discovery NZ Ltd, from broadcasting a news story on Three’s Newshub at 6 pm on the same day. The story in question involved allegations of serious criminal sexual misconduct by the plaintiff in 1977. The plaintiff argued that the allegations were uncorroborated, false, and defamatory, and that the news story would invade his privacy and infringe on his right to freedom of expression. The defendant, Discovery NZ Ltd, maintained that the allegations were of significant public interest, had been thoroughly investigated, and that any publication would be responsible and truthful. The court declined to grant the interim injunction, noting that the plaintiff had not met the high legal threshold required for such an injunction. The court found that there was a reasonable possibility that Discovery NZ Ltd could successfully defend the defamation claim and that there was legitimate public interest in the story. The court also considered the right to freedom of expression of the complainant, the news organisation, and the public of New Zealand. Instead, the court issued an interim injunction to preserve the plaintiff's appeal rights, provided that the appeal is filed within three working days and prosecuted in the Court of Appeal without delay.

The legal issues in this case revolved around the balance between the plaintiff's right to protect his reputation and privacy, and the defendant's right to freedom of expression and the public's right to receive information. The court considered the relevant legal principles and authorities, including the New Zealand Bill of Rights Act 1990 and various case law precedents. The court also examined the defences available to the defendant, such as truth and responsible communication of a matter of public interest. The court found that the plaintiff had not demonstrated that there was no reasonable possibility that the defendant had a defence against the defamation claim, nor had he shown that there was little legitimate public concern in the information to be released. The court emphasised the importance of dealing cautiously and warily with injunctions to prevent responsible media organisations from reporting stories in advance, especially when the story is of public interest.

In summary, the High Court of New Zealand declined to grant an interim injunction in the case of John Atcherley Dew and Discovery NZ Ltd, finding that the plaintiff had not met the high legal threshold for such an injunction. The court balanced the plaintiff's right to protect his reputation and privacy against the defendant's right to freedom of expression and the public's right to receive information. The court ultimately decided that the public interest and the right to freedom of expression outweighed the plaintiff's reputational interests. However, an interim injunction was granted to preserve the plaintiff's appeal rights, provided that the appeal is filed within three working days and prosecuted in the Court of Appeal without delay.

Orders