Polymer Group Limited v South Vineyard Limited HC Wellington CIV-2009-485-1298

[2010] NZHC 2354

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2009-485-1298

BETWEEN  POLYMER GROUP LIMITED Plaintiff

ANDSOUTH VINEYARD LIMITED Defendant

Telephone Conference Hearing:        3 November 2010

Appearances: A. Gilchrist - Counsel for Plaintiff

S. Brown - counsel for Defendant and certain creditors

M. Torley on behalf of TVNZ Reasons for Decision:  8 November 2010

REASONS FOR DECISION OF ASSOCIATE JUDGE D.I. GENDALL

Solicitors:           Chris Walker, Solicitor, PO Box 38440, Howick

Stephen Brown, Solicitor, PO Box 12293, Wellington

POLYMER GROUP LIMITED V SOUTH VINEYARD LIMITED HC WN CIV-2009-485-1298  8 November

2010

Introduction

[1]      On 28 October 2010, Television New Zealand (“TVNZ”) applied to this Court for in-Court media coverage of the hearing of an application in this proceeding to liquidate the defendant company scheduled to take place on 15 November 2010. In particular, TVNZ sought permission to film the hearing for television.  The TVNZ application was opposed by the defendant company, by the plaintiff and by certain other creditors of the defendant company.

[2]      Based on the procedure set out in cl 8(3) of the In-Court Media Coverage Guidelines 2003, I directed that there be a telephone conference hearing of the application.   This telephone conference hearing took place on 3 November 2010. After hearing submissions from counsel for the parties and from Mr Torley on behalf of TVNZ, I declined the application, indicating however that this was only by a fine margin and that my detailed reasons for the decision would follow.

[3]      I now set out those reasons.

Counsel’s Arguments and My Decision

[4]      The general principles governing access of the media to court proceedings are well known.  They were aptly summarised by Mallon J in Television New Zealand Ltd v Green [2009] NZAR 69:

[27]     The public nature of the courtroom means that the public are entitled to be present and to see who appears in our courts.  The media act as “the eyes and ears” (as it has been said) of those who cannot be present, but who have an interest in what has occurred.  In this day and age that can include visual coverage of what has occurred and, as the Court of Appeal said in R v  Thompson  [2005] 3 NZLR 577 at para [39], “[t]elevision in the courtroom is now a regular feature of the judicial landscape”. While television “does amplify the public gaze to an altogether greater order” (as was said in R v Crutchley (High Court, Hamilton, CRI 2007-68-83, 16 May

2008) at para [8] – see para [36] below), a visual image can be “a very powerful mechanism for conveying information about events” (Mafart v Television New Zealand Ltd [2006] 3 NZLR 534 at para [69]; see also Television New Zealand Ltd v Rogers [2007] 1 NZLR 157 (CA) at para [128]) and so potentially can well serve the values that underpin the open

justice principle.

[28]      Open justice and freedom of expression are not, however, the only considerations.  Just as information may be suppressed, fairness requires that there are limits, appropriate to the particular proceedings, as to what is

photographed or  filmed.    Media  wanting to  record  a  visual  image  by photograph or film must seek permission from the judge, who has the responsibility of ensuring that the photographs or filming do not interfere with the rights of an accused to a fair trial or that it does not in some other way conflict with the demands of justice in a particular case.

[5]      Guidance can  also be found in the  In-Court  Media Coverage Guidelines

2003.  These guidelines do not have legislative force, but “are a good example of the inherent power or inherent jurisdiction at play”:  Paraha v Police [2008] NZAR 581. Although the guidelines apply to both criminal and civil proceedings, generally they appear to be aimed at and perhaps to have greater relevance in the criminal context. Nevertheless, they provide a useful starting point for applications of this nature, emphasising the need to balance the desirability of open justice against all other relevant matters, including the demands of justice in a particular case.

[6]      The main ground of opposition to TVNZ’s application advanced before me was that filming of the hearing would jeopardise a creditors’ compromise proposal in this case that has just been approved by a large number of the defendant’s creditors. An application for approval of the proposal under Part 15 of the Companies Act

1993 is apparently to be filed shortly.  It seems that after a long search, the defendant company has found a willing outside investor to consider financing completion of the movie the defendant was formed to produce.  A sum of $1 million has been paid into the trust account of the defendant company’s solicitor, but this is only to be released to the company for payment to its creditors if the compromise is approved.

[7]      However, before me Mr Brown, counsel for the defendant, indicated that the financier is very publicity-shy and might decide to withdraw its planned financial assistance if the requested television coverage (as opposed to general print media coverage) of the hearing was permitted.   This, he submitted, might result in an immediate loss of the part-settlement amount of $1 million and an ultimate loss of the total $6 million contribution to settle all the defendant’s current creditors and would also put at risk the benefits that production of the movie would provide to local communities in New Zealand.  Mr Brown also submitted that little would be gained from filming the hearing, and that there were effectively no competing interests that would weigh in favour of granting TVNZ’s application here.

submission that it would not be desirable to risk jeopardising a potential compromise that would allow creditors to be paid and the movie to be finished.  He said that the thought that the proposal might be at risk, due to the hearing being filmed, was abhorrent to the creditors.  He also submitted that it was unusual to have cameras in the Companies Court and that, as there was no impediment to general reporting of the hearing, there was really no added benefit to the public in having the hearing filmed.   Overall, Mr Gilchrist submitted, any public interest in having the hearing filmed was outweighed by the interests of creditors in being repaid the significant sums they have already invested into the movie.

[9]      In response, Mr Torley, on behalf of TVNZ, argued that the only issue here was whether there should be a camera in court, as the print media would already be covering the hearing, and that it was important to allow the public to see justice being done.  He also noted that there was considerable public interest in this movie, and that the hearing had the potential to affect a number of people in the community.

[10]     On the basis of these submissions, on 3 November 2010 I decided – but only by a fine margin – to decline TVNZ’s application.   Although the hearing on 15

November 2010 will be in open court and does concern matters of public interest, I consider that, out of fairness to the parties and to all creditors of the defendant, any suggestion or risk that the coverage of the hearing by television cameras might jeopardise the compromise must be taken seriously.  What is more, it would clearly be in the public interest if a reasonable compromise was successfully reached here, all creditors settled, and the movie was able to go ahead.  It also seems to me that the absence of a camera in Court in this case for what is likely to be a short submission – only hearing, will not seriously hamper the media’s ability to report on the matter and to keep the public well informed.

[11]     For these reasons, I reached the conclusion but only by a fine margin, that the parties’ concerns here outweighed the public interest in allowing the hearing to be filmed.  In the end, in my view it is not only in the best interests of the parties and the defendant’s substantial creditors, but also in the public interest, that any viable compromise yet to be considered by the Court, not be subjected to any possible risk.

‘Associate Judge D.I. Gendall’