N v Radio New Zealand

[2018] NZHC 1809

ORDER PROHIBITING PUBLICATION OF NAMES OF APPLICANT UNTIL FURTHER ORDER OF THE COURT

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-001527

[2018] NZHC 1809

BETWEEN

N

Applicant

AND

RADIO NEW ZEALAND

Respondent

Teleconference:

19 July 2018

Counsel:

W J Tumai for Applicant G Christie in support

R Stewart (via teleconference) for Respondent

Judgment:

19 July 2018

ORAL JUDGMENT ON INTERIM INJUNCTION OF CHURCHMAN J

[1]        This is an application for an interim injunction. The application was initially filed late this afternoon on a without notice basis.

[2]        Counsel for the applicant sought  to  injunct  Radio  New  Zealand  (RNZ). Mr Stewart, counsel for the respondent, had been advised of the fact that the injunction was being sought, although as at the time of this hearing by way of teleconference this evening, had not had the benefit of seeing either the application itself or the affidavit in support.

[3]        The genesis of this application is a restorative justice conference that was held following a fatal accident in respect of an employee of Toll. That restorative justice conference was part of the proceedings before the Court relating to the prosecution of

N v RADIO NEW ZEALAND [2018] NZHC 1809 [19 July 2018]

Toll. In other words, the restorative justice conference was part of the proceedings and sanctioned by the Court.

[4]        It appears from the affidavit material filed in Court, and the comments made from the bar, that during the course of this restorative justice conference, a Skype connection occurred to facilitate the involvement in the conference of a brother of the deceased who was located in Sydney. It also appears that that Skype recording managed to pick up the confidential discussions occurring in the conference itself.

[5]        The fact that such a recording existed was unknown to the parties who participated in the conference until very recently. It appears that the person now in possession of such a recording has indicated that he wishes to utilise it in relation to interviews of him by RNZ. There has been correspondence between Toll, represented by Mr Christie and RNZ, setting out the factual basis for their concern that their privacy rights and the privacy rights of the other participants in the restorative justice conference would be breached should information gleaned from the surreptitious recording be publicised.

[6]        By a letter of 19 July 2018 to RNZ, counsel for Toll has asked that the proposed story that it is understood RNZ intends to run not be broadcast until the issue of restorative justice confidentiality is resolved. Apparently RNZ refused to comply with that request.

[7]        Mr Christie, in support of the application, also asked Mr Stewart whether an undertaking could be provided to that effect, and Mr Stewart was unwilling or unable to provide such an undertaking.

[8]        At the hearing this evening, Mr Tumai who appears for the applicant in these proceedings, confirmed that the organisation Whanau Ora Clinic, which N is the contract manager for in relation to the restorative justice programme for the Auckland district, was concerned about issues of privacy, and particularly the potential damage to the reputation and integrity of the organisation as the facilitator of restorative justice conferences, should material from this conference be published without the consent or all of the participants in the conference.

[9]        Mr Tumai indicated that the normal process at such conferences was that there would be agreement at the commencement of the conference as to whether any or all of the conference would be recorded, and that in the absence of unanimous agreement, there would not be such a recording made.

[10]      The issue in this case is whether or not the privacy rights of those involved in the conference are likely to be breached by material from the conference forming the basis of a publication by RNZ.

[11]      Mr Stewart was unwilling to accept that there was a blanket privacy interest applying to such conferences and gave the example that if there had been a civil or other form of wrong committed at the conference, then that could not have the cloak of confidentiality applied to it. While that is so, and there is case law by analogy relating to issues of privilege under the Evidence Act, at the moment there is no basis to suggest that any such event occurred at this conference.

[12]      In terms of the tests applicable in relation to the application for interim orders of this nature, the applicant must establish that there is a serious question to be tried, or that the claim was not frivolous of vexatious. The balance of convenience must be considered which requires consideration of the impact on the parties of the granting of, or the refusal to grant the order, and an assessment of the overall justice of the position.

[13]      Applying those criteria to this application, I am satisfied that there is a serious question to be tried in relation to the privacy interests of those who participated in the conference. In terms of the balance of convenience and the impact on the parties of the granting or refusal to grant an order, it is clear that any refusal to grant an order which led to RNZ broadcasting material which was either a verbatim extract of the proceedings at the conference, or material based on disclosures made at the conference which could be said to be confidential, would have a significant ramification for the organisation that N represents, and potentially do irreparable harm to their reputation and integrity.

[14]      In terms of the overall justice of the position, I note that the conference itself occurred in March, and Mr Stewart, albeit because he has only just become involved in this matter, was unable to assist the Court on the issue of whether there was any particular urgency in relation to any proposed broadcast by RNZ of matters arising in relation to this conference.

[15]      Overall, I am satisfied that this is an appropriate basis for the issue of an interim injunction. However, the interim injunction must necessarily be of a limited nature. There was an oral application by Mr Christie, supported by Mr Tumai, that any injunction should cover any discussions between the participants in that conference. I am not prepared to go so far as to grant that. However, there is no reason why Mr Christie cannot immediately make a formal application for such an injunction.

[16]      I also note that in the application, there was a request by N that his name as the nominated plaintiff not be published. Generally, the proceedings of the Court are conducted in public and, while I understand the reasons for N to make such an application, and am only prepared to make it on an interim basis, that does not indicate that the same considerations would apply when the matter is finally before the Court.

[17]      In relation to the issue of an undertaking as to damages, in the documents that have been filed, it appears that the undertaking has been provided by counsel, or at least is in the documents prepared by counsel as opposed to in a document signed by the applicant, or there being a separate signed undertaking as to damages. I direct that as a condition of the grant of the interim injunction that an undertaking as to damages signed by the applicant is filed with the Court.

[18]      Accordingly, the order of the Court is that an interim injunction issue pending further order of the Court, that restrains RNZ from publishing any material from the surreptitious recording which took place at the conference, or any interviews which are based on information from that recording.

[19]      I reserve leave for RNZ to move on three days’ notice to rescind this interim injunction.

Churchman J

Solicitors:
Fry Wilson Todd & Co, Huntly for Applicant