PQW v Mallard - [2020] NZHC 3531

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-759

[2020] NZHC 3531

BETWEEN
PQW

Plaintiff

AND

T C MALLARD

Defendant

On the papers:

Counsel:

M F McClelland QC and A J Romanos for Plaintiff R K P Stewart and L Clark for Defendant

Judgment:

24 December 2020

JUDGMENT (NO. 2) OF CHURCHMAN J

The application

[1] On 23 December 2020, counsel for the plaintiff filed a memorandum seeking the following orders:

(a)pending determination of a recall application, a fresh interim order suppressing the same information as per the original interim suppression order, or if in fact the original orders remain in place, a minute confirming this;

(b)recalling the judgment in this matter of 22 December 2020; and

(c)directing the Registry to convene, in consultation with counsel, a teleconference hearing in February 2021 where these issues can be

PQW v MALLARD [2020] NZHC 3531 [24 December 2020]

discussed further and, if necessary, directions made for a hearing of full argument.

[2]Alternatively, if the judgment was not recalled, the plaintiff sought:

(a)a fresh interim order suppressing the same information as per the original interim suppression orders, pending the outcome of the appellate process; and

(b)leave to appeal.

Interlocutory applications

[3] Although a formal application is not always required for the recall of a judgment, particularly if the correction sought is minor, such an application would be expected given the nature of the challenges in this case. The applications seeking orders in relation to suppression, directions conferences and leave to appeal are interlocutory applications governed by HCR 7.19 of the High Court Rules 2016 (HCR). HCR 7.19 requires such applications to be in form G31 or G32. Normally, an application seeking the type of orders sought here would be supported by an affidavit. HCR 7.20 requires supporting affidavits to be filed at the same time as the application.

[4] The applicant has not filed either any application in the prescribed form or a supporting affidavit. The memorandum filed contains a mixture of legal submissions and allegations of fact. Given the imminence of the closure of the Court for the Christmas vacation, the Court will treat the memorandum of counsel as if it were an application filed in accordance with the rules.

Interim suppression order

[5] At [3] of the memorandum, counsel for the plaintiff expresses his understanding that the interim suppression orders remain in place and have not been set aside by the judgment of 22 December 2020. That is clearly the position. Interim orders that are not expressly time-limited continue in force until either:

(a)further order of the Court; or

(b)the conclusion of the proceedings.

[6] The judgment of 22 December 2020 did not vary or rescind the interim orders and these proceedings have not yet been concluded. Although a notice of discontinuance has been filed, it was expressly conditional upon the Court making a final suppression order and an order sealing the file. As the Court has declined to make such…

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.

Continue reading PQW v Mallard

Details

AGLC: PQW v Mallard [2020] NZHC 3531
Case: [2020] NZHC 3531
Decision Date: 24 December 2020

CaseChat Overview and Summary

The case of PQW v Mallard was heard in the High Court of New Zealand. The plaintiff, PQW, sought to suppress their identity in the proceedings against the defendant, Mallard. The plaintiff also sought to recall a recent judgment of the Court that declined to make a final suppression order and an order sealing the Court file. PQW sought an interim suppression order pending the outcome of the appellate process, leave to appeal, and a teleconference hearing in February 2021. The court examined whether the interim suppression orders should continue in place, if the judgment could be recalled, and if the plaintiff should be granted leave to appeal. The court held that the interim suppression orders remained in effect until further order of the Court or resolution of the proceedings. The court declined to recall the judgment, as the plaintiff had not demonstrated any of the grounds set out in Horowhenua County v Nash (No. 2) that would justify such a recall. The court scheduled a hearing for the recall application and directed the plaintiff to file a formal application detailing the specific orders sought, the jurisdiction of the Court relied on for the making of those orders, and the grounds upon which it is said that the orders are justified. The court requested that the application and any supporting affidavit be filed by 18 January 2021, with a written synopsis of argument to be filed by 26 January 2021. The defendant was also directed to file any application, affidavit, or submissions by the same dates as the plaintiff’s documentation.

Orders