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Lewis v Wilson & Horton Ltd

Lewis v Wilson & Horton Ltd

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Case Copied 29 August 2000 52 min read

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PUBLICATION OF THE NAME OF THE APPELLANT OR DETAILS IDENTIFYING HIM ARE PROHIBITED UNTIL 2.15 PM ON THE DAY FOLLOWING DELIVERY OF JUDGMENT

IN THE COURT OF APPEAL OF NEW ZEALAND

CA131/00

BETWEEN	PETER BENJAMIN LEWIS
Appellant

AND	WILSON & HORTON LIMITED
First Respondent

AND	THE DISTRICT COURT AT OTAHUHU
Second Respondent

AND	THE NEW ZEALAND POLICE
Third Respondent

Hearing:	27 July 2000
Coram:	Elias CJ Richardson P Keith J Blanchard J Tipping J
Appearances:	A Ivory and M J Dyhrberg for Appellant
B D Gray and R Rasalingam for First Respondent
Judgment:	29 August 2000

JUDGMENT OF THE COURT DELIVERED BY ELIAS CJ

Table of Contents

Paragraph Number
Summary....................................................................................... [1]
           The appeal..................................................................................... [5]
           History of the proceedings.......................................................... [11]
           The decision in the District Court............................................... [27]
           Section 140.................................................................................. [40]
           Waiver......................................................................................... [44]
           Error of Law................................................................................ [53]
           Reasons....................................................................................... [74]
           Failure to consider the appellant’s reputation ........................... [88]
           Futility of the order..................................................................... [93]
           Discretion.................................................................................... [96]
           Rehearing.................................................................................... [97]
           Result........................................................................................ [100]

Summary

The length of this judgment should not be taken to suggest that the appeal has raised matters of complexity or difficulty. This is a case where the outcome has been inevitable. The Judge in the District Court was plainly wrong when he made an order under s140 of the Criminal Justice Act 1985 prohibiting publication of the appellant’s identity when he appeared on criminal charges. No grounds were available to the Judge which could justify departing from the important principle of open justice and the freedom to receive and impart information protected by s14 of the New Zealand Bill of Rights Act 1990. The order was accordingly made in error of law. In addition, the conduct of the proceedings in the District Court was marked by procedural irregularity in breach of the principle of open justice and a failure by the Judge to give reasons for his decision. In the circumstances the failure to give reasons for the s140 order was also an error of law.
Both errors of law plainly required the s140 order to be quashed on judicial review. The absence of any grounds upon which the Judge could have made the order made it inappropriate to remit the matter for rehearing.
Delay in reaching this result was occasioned because application for judicial review was not made until two months after the order was made. In the meantime the parties pursued applications in the District Court which were largely misdirected. Judicial review in the High Court was the appropriate means for Wilson & Horton as a party affected by the order to challenge its legality.
It has been necessary to set out what happened in the District Court in some detail because, regrettably, the Judge did not conduct the proceedings wholly in public and did not correct that irregularity by explaining what information had been supplied to him and what he had taken into account, as would have happened if he had given reasons for his decision. It has also been necessary to deal with a number of additional issues raised…

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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Details

Case: [2000] NZCA 175
Decision Date: 29 August 2000

CaseChat Overview and Summary

In Lewis v Wilson & Horton Ltd, the Court of Appeal of New Zealand upheld the High Court's decision to quash a name suppression order made by a District Court Judge in respect of the appellant's identity. The Court of Appeal identified two main errors of law in the District Court's decision. First, the Court held that the Judge failed to provide any reasons for the decision to prohibit publication of the appellant's name, which was necessary to ensure accountability and allow for judicial review. Second, the Court found that the Judge did not take into account all relevant considerations, specifically the appellant's reputation as a user of cannabis and supporter of its decriminalisation in the United States, which was not disclosed in the information provided to the Judge. As a result, the Court of Appeal dismissed the appeal and confirmed the High Court's decision to quash the name suppression order. The Court held that there was no prohibition on publication of the appellant's identity and that the matter should not be remitted for rehearing.

Orders