PQW v Mallard - [2020] NZHC 3527

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 3527

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:

22 December 2020

JUDGMENT OF CHURCHMAN J

Introduction

[1] By joint memorandum, counsel for PQW (the plaintiff) and for Mr Mallard (the defendant) seek orders by consent that an interim suppression order be made permanent, and that the file is sealed permanently.

[2] In that joint memorandum, the parties have indicated that they have reached a settlement in these defamation proceedings, and that as part of that settlement, the parties seek the following orders by consent:

(a)that the interim suppression orders made by Grice J on 16 December 2019 be made permanent; and

(b)that the Court file is sealed permanently.

PQW v MALLARD [2020] NZHC 3527 [22 December 2020]

[3] Alongside this joint memorandum, counsel for the plaintiff has filed a notice of discontinuance of the proceeding, on the basis that this notice will became effective once the above consent orders have been made.

Relevant law for name suppression

[4] Unlike in the criminal jurisdiction, which is governed by ss 200-211 of the Criminal Procedure Act 2011, the jurisdiction for suppression and non-publication in civil matters is an inherent, discretionary jurisdiction.1 The starting point is the principle of open justice, which is intertwined with the right to freedom of expression guaranteed in s 14 of the New Zealand Bill of Rights Act 1990, which provides:

14 Freedom of expression

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

[5] The Court of Appeal aptly described the relationship between open justice and freedom of expression in the context of non-publication in civil court proceedings in Y v Attorney-General:2
Together, these two tenets create a presumption of disclosure of all aspects of civil court proceedings. They are exemplified by the latter part of the truism that “justice must not only be done, it must be seen to be done”. So the courts administer justice in public, enabling public scrutiny and thus ensuring public confidence in the administration of justice.

[6] Similarly, in Erceg v Erceg, the Supreme Court stressed the importance of open justice in both criminal and civil proceedings:3

The principle of open justice is fundamental to the common law system of civil and criminal justice. It is a principle of constitutional importance, and has been described as ‘an almost priceless inheritance’. The principle's underlying rationale is that transparency of court proceedings maintains public confidence in the administration of justice by guarding against arbitrariness or partiality, and suspicion of arbitrariness or partiality, on the part of courts. Open justice ‘imposes a certain self-discipline on all who are engaged in the adjudicatory process — parties, witnesses, counsel, Court officers and…

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 3527
Case: [2020] NZHC 3527
Decision Date: 22 December 2020

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiff PQW and the defendant Mr Mallard have reached an agreement in defamation proceedings. They jointly applied for the interim suppression order made on 16 December 2019 to be made permanent and for the court file to be sealed permanently. The plaintiff also filed a notice of discontinuance of the proceedings, which would become effective once the consent orders are made. The court must balance the principle of open justice against the interests of the parties, considering whether there are circumstances in which the presumption favouring publication is displaced.

The court assessed whether there were circumstances that required a departure from the general rule of open justice. The interim suppression order was made to prevent the identification of the plaintiff, who alleged that the defendant had defamed him to a limited number of individuals. The plaintiff argued that his identification would result in publication to the world at large and could adversely affect his health and that of his family member. The court found that the interim suppression order should remain due to the possibility of adverse consequences on the plaintiff’s family member.

However, the court noted that the plaintiff's case proceeded on the basis that what was being sought were interim orders only, until the commencement of the trial. The court also considered that the defendant had publicly acknowledged that the use of the term 'rapist' was unjustified. This significantly reduced the weight that could be allocated to the possible adverse effects on either the plaintiff’s mental health or that of any family member arising from publicity as to his identity.

The court concluded that the public interest in litigation being settled and the significance of the fact that all parties to the litigation are agreed as to the making of final suppression orders are factors that might support the orders sought. However, the private interests of the parties are not the sole consideration. The court also noted that plaintiffs who elect to commence defamation proceedings are in the weakest of positions to obtain suppression orders, especially those seeking public vindication of their reputation. The court was not satisfied that the circumstances here justified an exception to the fundamental principle that justice should be dispensed in the open.

The court declined the application for continuation of the interim suppression orders and for the “permanent sealing” of the Court file. It made an order suppressing publication of any information relating to the health of the plaintiff or his family members.

Orders