PETER T REX LLC a duly incorporated company in Dover, Delaware, USA AND BARBARA T REX LLC a duly incorporated company in Dover, Delaware USA
[2023] NZHC 625
•24 March 2023
NOTE: ORDERS FOR SUPPRESSION AS SET OUT IN PARAGRAPHS [17],
[19] - [21] OF THE JUDGMENT.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-00366
[2023] NZHC 625
UNDER the Defamation Act 1992 BETWEEN
PETER T REX LLC a duly incorporated company in Dover, Delaware, USA
First Plaintiff
AND
BARBARA T REX LLC a duly incorporated company in Dover, Delaware USA
Second Plaintiff
AND
[NAME SUPPRESSED]
Third Plaintiff
AND
NZME PUBLISHING LIMITED a duly
incorporated company in Auckland New Zealand
Defendant
Hearing: 24 March 2023 Appearances:
N L Walker, J Edwards, J A Tocher for First, Second and Third Plaintiffs
T Goatley, K M Wilson for Defendant
Judgment:
24 March 2023
JUDGMENT OF WHATA J
PETER T REX LLC v NZME PUBLISHING LIMITED [2023] NZHC 625 [24 March 2023]
[1] This is an application for leave to appeal my decision rescinding the following ex parte order made by Venning J:
as to non-publication:
(i)preventing publication of names, addresses or identifying particulars of the parties, and that the dispute involves dinosaur specimens or Auckland Museum; and
(ii)to protect the third applicant (an individual), that the plaintiffs are only required to provide to the respondent versions of all pleadings (including affidavits) with the third applicant's name and identifying particulars redacted (at least at this “interim, interim” stage).
[2] The application for leave however, seeks only to revive this order in the following terms:
… preventing publication of names, addresses or identifying particulars of the [plaintiffs], and that the dispute involves dinosaur specimens or Auckland Museum.
Background
[3] The background to this is that the plaintiffs obtained ex parte orders restraining NZME in any form any article containing, relying on, or referring to statements made in the Blog Post (as defined in the applicant’s statement of claim). The plaintiffs claim that the statements are defamatory. I rescinded this order and replaced it with an order preventing NZME from publishing the Blog Post statements recorded at [51] of my judgment.1 In my view these statements (but only these statements) could be defamatory and based on the information available to me, there was no reasonable possibility of a defence to the defamation claim in respect of them. Leave has not been sought in respect of this rescission order or the new injunctive order.
Grounds of Appeal
[4] Mr Walker identifies multiple grounds of appeal, the core of which may be reduced to the following propositions:
1 Peter T Rex LLC v NZME Publishing Ltd 2023 [NZHC] 537.
(a)Error as to absence of reasons to sustain the non-publication order;
(b)Failure to take into account relevant considerations:
(i)the full significance of privacy interests of the applicants;
(ii)the present anonymity of the plaintiffs and commercial sensitivities;
(iii)the third party’s reasonable expectation of privacy;
(iv)the inseparability of privacy and reputational interests in a defamation context;
(v)the early stage of the proceedings;
(c)Error as to the assessment of harm including:
(i)the increased risk of publication harm arising from speculation and given the significantly larger audience;
(ii)the increased risk of reputation harm to the applicants from revealing their identity to overseas media; (in respect of which different laws may apply)
(iii)the harm to third parties, including the Auckland Museum.
(d)Error as to weight given to the public interest in upholding the public efficacy of the processes of the Court.
(e)Failure to consider alternative orders, including:
(i)non-publication of commercially sensitive information;
(ii)to protect the third party applicant;
(iii)to protect the reputation of the third parties.
[5] Mr Walker also submits that the issues raised are novel and complex and have not been considered to date in a New Zealand context, the costs of the appeal are justified, and overall, the interests of justice are served by granting leave.
Jurisdiction
[6]Under s 56(3) of the Senior Courts Act 2016, leave to appeal is required:
No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.
[7] In Moir v IHC New Zealand Inc the Court of Appeal (Gilbert, Dobson, and Toogood JJ) state the criteria for the granting of leave to appeal against an interlocutory decision of the High Court:2
By analogy with decisions under s 67 of the Judicature Act 1908, the forerunner to s 56, we consider leave should not be granted unless the proposed appeal raises some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the appeal. Moreover, leave should be not be granted unless the proposed appeal has some reasonable prospect of success. That requires consideration of the merits of the proposed appeal.
Argument
[8] Mr Walker contends that without the suppression and non-publication orders sought, there is a real risk of reputational harm to the plaintiffs and especially the third plaintiff. As a minimum, there will be harmful speculation about the plaintiffs, the T. rex, and the Auckland Museum. There is also a risk of overseas media, not subject to the injunction, linking the plaintiffs and publishing about the defamatory Blog Post statements. He says that there is authority and policy supporting pre-trial suppression where harm of this kind might follow without it.3 Mr Walker emphasised that the
2 Moir v IHC New Zealand Inc [2018] NZCA 130 at [6].
3 H v S [2016] NZHC 433, [2016] NZAR 405; Doe v Dowling [2016] NSWSC 1909; Doe v Dowling
[2017] NSWSC 1793; ZAM v CFW [2011] EWHC 476; and ZAM v CFW [2013] EWHC 662.
particular circumstances of this case are novel namely, a prior restraint case in relation to alleged defamatory statements the object of which is to protect the plaintiffs from the alleged defamation. He says, referring especially to overseas authority, that protecting prior restraint defamation plaintiffs from publication harm, associated with the fact of the proceedings, is a matter worthy of consideration by the Court of Appeal.
[9] When I pressed Mr Walker about various grounds of alleged failure to have regard to privacy considerations and reputational harm in respect of a judgment specifically directed to those matters, he maintained that inadequate regard had been given to those matters when dealing with suppression. Mr Walker also acknowledged that no specific application was made for orders suppressing commercially sensitive information but had proceeded on the basis the wider application encompassed it. He acknowledged also that the authorities cited for this hearing were not advanced before me in the initial hearing.
[10] Ms Goatley submits in short that this is a simple case involving the application of settled principle as set out clearly in Erceg. There is nothing peculiar or exceptional about defamation plaintiffs, particularly where the alleged defamatory material is injuncted from publication. She noted that the cases relied upon by Mr Walker were decided under different regimes and/or in circumstances where there were wider policy considerations for example, to advance the prosecution of blackmail. She contends they are in any event inapposite in the context of the present case where the only potential harm is the harm ordinarily associated with participation in litigation. Ms Goatley also says, in the absence of clear harm or prejudice, that plaintiffs who exercise their right to bring proceedings cannot complain when their names are published.
Analysis
[11] The effect of the proposed order in issue must be in focus. It is not an order of limited scope. Rather it is a blanket order supressing any and all expression whatsoever about the existence of the underlying dispute, including the parties and the subject matter of the dispute, namely the T. rex. In reality, through this order the plaintiffs achieve what they could not achieve via the injunction – suppression of the
proceedings (except for NZME has been sued). It is a type of infringement on freedom of expression and the principle of open justice reserved only for cases where the likely publication harm is very serious or where fair trial rights may be jeopardised.4
[12] There is no challenge to the applicable principles used per Erceg.5 At its core, then, the appeal seeks to challenge the assessment of this potential harm, claiming it appears, severe commercial and personal harm, even though the alleged defamatory statements remain injuncted from publication. I consider the prospect of success on this, in defence of the original or amended order, to be remote. Absent the defamation, the plaintiffs, who are actively engaged in a public activity, are seeking simply to hide the fact that they are in a dispute about allegedly defamatory comments that will not be published. That is not a qualifying harm or reason for suppression of the blanket kind sought, notwithstanding overseas authority which appears to place some significance on what might be called speculation harm.6 Certainly no New Zealand authority has been cited to support such a wide-reaching proposition.7
[13] Allegations that privacy considerations or reputational interest were not considered is in my view irreconcilable with a judgment wherein these matters are examined at length in multiple locations.8 But it is a matter of makeweight moment in any event. The core issues, explained above remain the same. Speculating about the reaction of overseas media, who might not be subject to the same defamation laws, is not a sound basis for a fundamental breach of freedom of expression and open justice. These grounds are meritless in my view.
[14] As I noted to Mr Walker, refined orders based on the suppression of commercially sensitive information were not separately advanced before me at the hearing of this matter and it would be wrong to allow an appeal to advance on that basis alone.9 In any event it is a matter that can be addressed in this Court if necessary.
4 See for example R v Liddell [1995] 1 NZLR 538; Erceg v Erceg [2016] NZSC 135, [2017] 1.NZLR 310; H v S, above n 3.
5 Erceg v Erceg above n4 at [13]
6 ZAM, above n 3.
7 H v S, above n 3 cited by Mr Walker in the leave application, confirms “that there must be more than the potential embarrassment and personal and business discomfort that may be suffered by litigants when their involvement in civil proceedings becomes known.” at [13].
8 Above n 1, refer to paragraphs [27], [34](a), (b), (g), [41], [53],[72].
9 R v White [2019] NZCA 164 at [14].
[15] My only residual concern relates to the third plaintiff. While my order is framed as an interlocutory order, it is effectively final. I cannot completely discount the possibility that his personal privacy considerations may be such as to persuade the Court on Appeal that open justice and freedom of expression should yield at this “interim, interim” stage. I accept in this regard that plaintiffs generally should not be unduly discouraged from bringing of defamation proceeding. Having said that and for sake of clarity in terms what my own view on this is, given the importance of open justice and the freedom of expression in this jurisdiction, I consider there must be some clear qualifying harm for intervention.
[16] On that basis, leave to appeal is granted on a limited basis, namely whether the third plaintiff’s name should be anonymised.
Appeal for special leave:
[17] I extend the present orders for suppression and non-publication to 5pm Wednesday 29 March 2023, for the purpose of enabling the plaintiffs to file any application for special leave to appeal this decision. In the event that such an application is made, the orders will continue pending the determination of the application by the Court of Appeal.
Suppression
[18] It remains necessary to clearly state what suppression and non-publication orders remain in place in the event that an appeal is not filed.
[19] First, there shall be an order suppressing and anonymising the name of the third plaintiff pending the hearing of any appeal against my order rescinding Venning J’s non-publication order. Any such appeal must be filed expeditiously.
[20] Second, there shall be an order supressing the references to the Blog Statements referred to at [51] of my decision and to any descriptor of those statements and any imputations that are drawn from them recorded in the judgment.
[21] Third, for the purpose of publication of the judgment, assuming the parties want the judgment to be published in the usual way, I will make an order redacting all references to the same statements, to the descriptor given to them, and any imputation available from them recorded in my judgment of 20 March 2023, save in respect of the copies provided to counsel for the parties and to recorded interested parties (namely Mr Gay). A copy of the redacted judgment will be circulated to the parties for their consideration prior to wider publication.
Application for access to Court documents
[22] I take the opportunity to address the application by Mr Edward Gay for access to the following documents:
(a)the judgment of Venning J dated 9 March 2023;
(b)the judgment of Whata J dated 20 March 2023;
(c)any minutes in this proceeding;
(d)any separate judgment relating to non-publication; and
(e)the plaintiff’s interlocutory application (including affidavits) for an interim injunction.
[23] Mr Gay wishes to publish a full, fair, and balanced report of the proceedings, so far as they are able and subject to court orders.
[24] The plaintiffs do not oppose the application except as it relates to the interlocutory application (including affidavits) on the basis that:
(a)There is no general right to access the application.
(b)Before the substantive hearing, the protection of confidentiality and privacy interests, and the orderly and fair administration of justice may require that access to documents be limited.
(c)It is not necessary to enable Stuff to achieve its stated purpose to “publish a full, fair and balanced report of the proceedings.”
(d)The application contains commercially sensitive information.
(e)The affidavits contain personal information.
[25] I grant the order providing access to the interim application (including affidavits) subject to redaction of commercially sensitive information and the personal information of the third plaintiff. A copy of a redacted version of the application and affidavits is to be provided by the plaintiffs to the Court for this purpose.
[26] My reasons are that in this case the unfolding of the litigation itself is a matter of public interest, particularly as it directly engages the mana of the media, as kaitiaki of freedom of expression and open justice. However, I am not satisfied that it is necessary for Mr Gay, at this stage in any event, to have the commercially sensitive information or the third plaintiff’s personal information.
[27] Stuff NZ, like all persons, will be subject to the injunction and suppression orders noted above at [17]-[21].
[28] I record that the judgment dealing with the application for leave was delivered orally. The balance was largely discussed with counsel after delivery and for efficiency’s sake has been added to the oral judgment.
Whata J
Solicitors / Counsel:
Russell McVeagh, Auckland Bell Gully, Auckland
2
5
0