Peter T. Rex LLC v NZME Publishing Limited - [2024] NZSC 10

NOTE: COURT OF APPEAL ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS AND IDENTIFYING PARTICULARS OF THE THIRD APPLICANT PENDING FURTHER ORDER OF THE HIGH COURT REMAINS IN FORCE.

NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF THE MATTERS IDENTIFIED AT [51] OF THAT JUDGMENT – [2023] NZHC 537 – REMAINS IN FORCE.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 112/2023
[2024] NZSC 10

BETWEEN	PETER T REX LLC First Applicant BARBARA T REX LLC Second Applicant AB Third Applicant
AND	NZME PUBLISHING LIMITED Respondent

Court:	Glazebrook, Ellen France and Kós JJ
Counsel:	D H McLellan KC, N L Walker, J Edwards and J A Tocher for Applicants T C Goatley and K M Wilson for Respondent
Judgment:	15 February 2024

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

B The applicants must pay one set of costs of $2,500 to the respondent.

____________________________________________________________________

REASONS

Introduction

The applicants have applied for an injunction to restrain the respondent, NZME Publishing Limited (NZME), from publishing allegedly defamatory statements. The injunction application has not yet been heard. Pending the hearing of that application the applicants sought various interim orders including a non‑publication order. The terms of the non‑publication order made by the High Court[1] were the subject of a partially successful appeal by the applicants to the Court of Appeal.[2] As a result, publication of the third applicant’s name, address and identifying particulars is prohibited pending further order of the High Court.[3]
[1]Peter T Rex LLC v NZME Publishing Ltd [2023] NZHC 456 (Venning J) [HC interim order decision]; and Peter T Rex LLC v NZME Publishing Ltd [2023] NZHC 537 (Whata J) [HC rescission decision].
[2]Peter T Rex LLC v NZME Publishing Ltd [2023] NZCA 469 (French, Goddard and Wylie JJ) [CA judgment]; special leave to appeal having been granted: Peter T Rex LLC v NZME Publishing Ltd [2023] NZCA 262 (Miller and Goddard JJ); and see Peter T Rex LLC v NZME Publishing Ltd [2023] NZHC 625 (Whata J) granting leave on a more limited basis.
[3]CA judgment, above n 2, at [68].
The applicants now seek leave to appeal to this Court. They say that the Court of Appeal was wrong not to suppress other details they argue will enable identification of the third applicant by the community in which he is involved.

Background

The first and second applicants are the owners of two Tyrannosaurus rex skeletons currently on display at Tāmaki Paenga Hira Auckland War Memorial Museum (the Museum). The third applicant has managerial responsibilities in relation to both companies. The two skeletons have been lent to the Museum for exhibition by the applicants at no cost to the Museum. The Court of Appeal recorded the Museum has confidence that each of the skeletons is a single specimen and not a composite, and that the Museum has made it clear that each skeleton contains cast elements.[4]
[4]At [6].
In February 2023 a Dutch blogger posted a blog…

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: [2024] NZSC 10
Decision Date: 15 February 2024

CaseChat Overview and Summary

The Supreme Court of New Zealand dismissed an application for leave to appeal against the Court of Appeal's decision in Peter T Rex LLC v NZME Publishing Limited. The applicants, owners of Tyrannosaurus rex skeletons, sought to appeal the Court of Appeal's refusal to reinstate a non-publication order in its original form. They argued that the Court of Appeal had failed to consider the potential for identification of the third applicant through "jigsaw identification" or the "mosaic effect" of publicly available details. The applicants contended that the Court of Appeal's analysis focused only on the general public and not on the dinosaur fossil community, where the third applicant's reputation could be significantly harmed.

The Court of Appeal had balanced the interests of open justice and the applicants' reputational interests in light of the principles established in Erceg v Erceg. It found that while some individuals in the dinosaur fossil community might identify the third applicant, it was unlikely that members of the general public could do so. The Court of Appeal preferred to allow the third applicant to maintain his anonymity until the substantive hearing on the interim injunction application in the High Court.

The Supreme Court held that the applicants' proposed appeal would largely repeat the arguments made to the Court of Appeal, without raising any question of general or public importance. The Court found no material error in the Court of Appeal's assessment of the specific adverse consequences and the relevant interests involved. The criteria for leave to appeal were therefore not met.

The Supreme Court dismissed the application for leave to appeal and ordered the applicants to pay one set of costs of $2,500 to the respondent. The existing non-publication orders, which prohibit the publication of the third applicant's name, address and identifying particulars, and certain details relating to the dispute, remain in force.

Orders