Ridge v Parore
[2013] NZHC 2335
•9 September 2013
SUPPRESSION ORDERS IN PLACE: REFER PARA [38].
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2012-404-000957
[2013] NZHC 2335
UNDER Section 174 of the Companies Act 1993 BETWEEN
SALLY ANNE JUDITH RIDGE AND JAMIE DILLON RIDGE AS TRUSTEES OF THE SALLY RIDGE FAMILY TRUST
First Plaintiff
SALLY ANNE JUDITH RIDGE
Second PlaintiffAND
ADAM CRAIG PARORE AND AARON LLOYD AS TRUSTEES OF THE ADAM PARORE FAMILY TRUST
First Defendant
ADAM CRAIG PARORE
Second DefendantSMALL BUSINESS ACCOUNTING (NZ) LIMITED
Third Defendant
| Hearing: | 6 September 2013 |
Appearances: | K M Bradley for Applicant (APN New Zealand Limited) D Grove for Plaintiffs Z Kennedy for Defendants J Anderson (National Business Review) (in person) in support of application |
Judgment: | 9 September 2013 |
(RESERVED) JUDGMENT OF ANDREWS J
[Application to set aside non-publication order]
RIDGE & ANOR v PARORE & ORS [2013] NZHC 2335 [9 September 2013]
This judgment is delivered by me on 9 September 2013 at 2:30pm pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
Solicitors/Counsel:
Bell Gully, Auckland (Applicant)
D Grove, Barristers, Auckland (Plaintiffs)Z Kennedy, Minter Ellison, Rudd Watts, Auckland (Defendants)
Introduction
[1] This proceeding was begun by a statement of claim filed on 24 February 2012. In general terms, the plaintiffs sought orders pursuant to s 174 of the Companies Act 1993 relating to the shareholding in the third defendant company (“the company”), and distribution of the proceeds of sale of a residential property.
[2] On 22 March 2012, I granted an application made by the plaintiffs, consented to by the defendants, for confidentiality. I ordered that until further order of the Court, there was to be no publication of any matter relating to the proceeding, or of any information that might identify the parties, or the matters at issue between them (“the non-publication order”). The grounds on which the non-publication order was made were that the proceeding focused on matters relating to the company, which were considered to be commercially sensitive.
[3] Since the proceeding was filed, the plaintiffs have filed two amended statements of claim. The plaintiffs now claim under six causes of action, including one under the Property (Relationships) Act 1976 (“the PRA”). The defendants have filed statements of defence to each statement of claim, and have pleaded five counterclaims and/or set-off.
[4] On 30 August 2013, APN New Zealand Limited (“APN”) applied for an order setting aside or varying the non-publication order, on the grounds that the non- publication:
(a)Does not give sufficient weight to the principle of open justice and the right of the media to report judicial proceedings as the surrogates of the public;
(b)Does not give sufficient weight to the importance in a democracy of freedom of speech and in particular the freedom to receive and impart information recognised by section 14 of the New Zealand Bill of Rights Act 1990 (“NZBORA”);
(c)Is stated in terms which are too broad, and does not comply with the requirement that any non-publication order should be in terms which involve minimal interference with the rights recognised by section 14 of the NZBORA and the principle of open justice; and
(d)Does not identify compelling reasons for interference with the rights recognised by the NZBORA and the principle of open justice.
[5] The application was opposed by counsel for both the plaintiffs and the defendants. The application was supported by Mr J Anderson, a reporter for the National Business Review (“NBR”), who was given leave to make submissions.
What is at issue?
[6] There was no dispute that justice should be administered in the open, and subject to the full scrutiny of the media. This has been confirmed as a paramount, or fundamental, principle in many decisions of the New Zealand Courts.1 Nor was there any dispute that a non-publication order may be made where circumstances such as commercial sensitivity, or particular circumstances relating to the privacy of an individual and the personal nature of the hearing, justify a departure from the principle of open justice.
[7] Further, counsel for the plaintiffs and the defendants did not seek to maintain the non-publication order in the terms in which it was made. They accepted that it should be varied.
[8] What is at issue, is whether the non-publication order should be set aside in its entirety, or whether the principles of open justice and freedom of speech, and the parties’ privacy and commercial sensitivity concerns, can be balanced and met by way of allowing the media to be present and to report on the hearing, but requiring fictitious names to be used.
Submissions
[9] Although the application was made by APN, the onus is on the parties to the proceeding to establish that the non-publication order should be varied rather than set aside. As Asher J said in Peters v Birnie:2
There is then, in civil proceedings, an onus on a party to establish a proper foundation for a confidentiality order, just as there is in criminal proceedings. Given the paramount principle of open justice, it is necessary for a person seeking confidentiality orders to point to some public interest
1 See, eg: Broadcasting Corporation of New Zealand v Attorney-General [1982] 1 NZLR 120 (CA), R v Liddell [1995] 1 NZLR 538 (CA), Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA), and Rogers v Television New Zealand Ltd [2007] NZSC 91.
2 Peters v Birnie HC Auckland CIV-2009-404-8119, 19 March 2010 at [25]
such as particular circumstances relating to the privacy of an individual, to justify a departure from the open justice process. ... I conclude, therefore, that a party seeking to justify a confidentiality order will generally have to show specific adverse consequences that are exceptional.
[10] Mr Kennedy submitted for the defendants that a non-publication order (in some form) was justified first, because the plaintiffs’ claim includes a cause of action under the PRA, which is governed by the “publication” provisions in ss 11B to 11D of the Family Courts Act 1980.3 He also submitted, more generally, that the proceeding is analogous to a relationship property case, and concerns issues of a private and personal nature. Such issues have substantially diminished public
interest considerations in comparison with civil, commercial, or criminal proceedings.
[11] Mr Kennedy further submitted that it is inevitable that matters relating to the parties’ young children will be traversed at the hearing. He submitted that, at a minimum, the children should be protected against publication. He submitted that an order preventing publication of their names would be of limited effect if their parents’ names were to be published.
[12] Mr Kennedy also submitted that financial information relating to the company, which will be traversed at the hearing, is commercially sensitive, and that it is likely to be damaging to the company’s commercial interests if such information is made available to the company’s competitors by being published. He further submitted that there is no public interest in the company’s financial information being published, because neither its conduct nor its financial standing is in issue in (or relevant to) this proceeding. The company simply forms part of the property in dispute.
[13] Mr Grove, for the plaintiffs, supported Mr Kennedy’s submissions, particularly in relation to the commercial sensitivity of financial information concerning the company. He submitted that publication would cause considerable damage to the company’s business.
3 By virtue of s 35A of the PRA.
[14] For APN, Ms Bradley’s written submissions were largely concerned with matters not in dispute, namely, the principles of open justice and freedom of expression. As there was no dispute that open justice and freedom of expression (whether pursuant to common law or the NZBORA) are paramount and fundamental principles, it is not necessary to deal with those submissions further.
[15] Ms Bradley also submitted that both the second plaintiff (Ms Ridge) and second defendant (Mr Parore) were well known people who had sought out public attention. She submitted that both have used their “celebrity status” for commercial gain and that, as such, there is public interest in their affairs which goes beyond the public interest in those who are less (or not) well known. Ms Bradley submitted that the parties had chosen to litigate their dispute in this Court, rather than seek alternative dispute resolution, in the knowledge that the principles of open justice apply, so cannot now seek to keep their proceeding private and confidential.
[16] While acknowledging that the fact of the proceeding being of a personal and private nature is a relevant consideration, as is the involvement of young children, Ms Bradley submitted that the threshold for outweighing the principle of open justice, so as to prevent publication, is very high. She referred to expressions such as “very special”, “compelling”, and “exceptional” used in the authorities to describe what must be established.
[17] Ms Bradley further submitted that anonymisation (use of fictitious names) would have the same effect as the non-publication order. This is because the public interest in this case resides in the parties themselves.
[18] However, Ms Bradley saw no difficulty in orders being made (in the course of trial) which could deal specifically with any matters relating to the company’s financial information, or matters concerning the young children, which required protection.
[19] Mr Anderson supported Ms Bradley’s submissions, but submitted that there is a legitimate interest in the company’s affairs. He submitted that this was not the first time that a company’s affairs had come before the Court, nor would it be the last. It
was, he submitted, the price people pay when they bring an otherwise private dispute before the Court.
[20] Like Ms Bradley, Mr Anderson submitted that the parties to this proceeding had courted publicity. He submitted that they had lived their lives in the public arena. Further, he submitted that there has previously been some publicity of the parties’ names. In that respect, he submitted, “the cat was out of the bag”.
[21] In summary, Mr Anderson submitted that the parties had not made a strong enough case for continued suppression.
Discussion
Introduction
[22] The starting point must be the principle that justice should be administered in the open, and subject to media scrutiny. To displace that principle in this case, the parties must establish that there are circumstances that are very special, compelling, or exceptional, so as to justify a general prohibition on publication of material that may identify them.
[23] Two issues arise. The first is whether the subject matter of this proceeding (that is, that it concerns private and personal matters, there will be reference to the parties’ young children in evidence and submissions, and reference to financial information concerning the company), of itself, constitutes sufficient reason to prohibit publication. The second issue is whether the fact that the parties to the proceeding (in particular Ms Ridge and Mr Parore) are publicly well known and have (it was submitted) courted publicity, is significant in considering whether to maintain the non-publication order.
The subject matter of the proceeding
[24] As noted earlier, when this proceeding was commenced, it focused on s 174 of the Companies Act. Pursuant to s 174, the Court may make a range of orders if it is satisfied that the affairs of the company have been, are being, or are likely to be conducted in a way that is, or is likely to be, oppressive, unfairly discriminatory, or
unfairly prejudicial to a shareholder of the company. The amended statement of claim includes a claim under the PRA. Counsel for both the plaintiffs and the defendants submitted that, in essence, the dispute between them is as to relationship property, following the end of their relationship. The company is relevant only in that it is claimed to form part of the relationship property.
[25] In relation to proceedings under the PRA, the default presumption, pursuant to s 35A of the PRA and ss 11B to 11D of the Family Courts Act, is that there can be publication, but leave of the Court is required to publish a report of proceedings that
includes identifying information concerning a person under 18 years, or a “vulnerable person”.4 The default position was noted in Chapman v HP,5 and in Sanders v Sanders.6 Where sections 11B to 11D apply, publication may be permitted, subject to specific orders prohibiting publication of any details which would lead to identification of a person under 18, or a vulnerable person. In Chapman v HP and Sanders v Sanders, publication was permitted, subject to such specific orders.7
[26] Further, the Court may in its inherent jurisdiction prohibit publication of commercially sensitive information.8 However, the jurisdiction must be exercised in the context of the principles of open justice.9
[27] I conclude that the subject matter of this proceeding is a relevant factor to be taken into account, but in order to displace the principle of open justice and the freedom to report proceedings, the parties would have to establish that the subject matter of the proceeding is such as to constitute exceptional, compelling, or very special circumstances justifying an order that the parties names not be published. This is particularly so when considered against the Court’s ability to make specific orders to restrict publication of particular aspects of the proceeding. In this case,
4 “Vulnerable person” is defined in s 11D of the Family Courts Act.
5 Chapman v HP [2010] NZFLR 855 (HC) at [11].
6 Sanders v Sanders (2010) 28 FRNZ 205 (HC) at [56]—[59].
7 See Chapman v HP, above n 6, at [28]; Sanders v Sanders, above n 7, at [61].
8 See, for example, Glaister v Amalgamated Dairies Ltd [2003] NZAR 149, (2002) 16 PRNZ 756 (HC) at [5]-[14].
9 Glaister v Amalgamated Dairies, above n 9, at [5].
specific orders can be made in respect of the parties’ children, and the commercially sensitive information concerning the company.
The parties
[28] It was not disputed that both Ms Ridge and Mr Parore are publicly well known. Ms Bradley submitted that that did not entitle them to any special consideration; that is, they did not have any greater right to privacy than any other individual. Mr Kennedy and Mr Grove did not seek any greater privacy right, but submitted that the parties were entitled to receive the consideration and privacy that any other individual would receive; that is, that their right to privacy was not extinguished or reduced by virtue of their being public figures.
[29] The comments of the Court of Appeal in Lewis v Wilson & Horton Ltd (a case concerning an application for suppression of the name of a man facing criminal charges) are instructive:10
The standing of the appellant as “an extraordinarily successful businessman, community leader and philanthropist” was not grounds for suppressing his name in the absence of evidence of special harm to him through publicity. No harm to the appellant was suggested beyond the submission that his standing would make media interest in him “undue”. That is tantamount to a submission that successful or prominent members of the community should receive name suppression because there may be media interest in such people. The Court cannot enter into assessment of whether media or public interest is appropriate or “undue”. The right to receive and impart information is not limited in the present context according to qualitative and subjective standards adopted by the Judge. It is a right to receive information “of any kind in any form”. In cases where some real harm is identified, it may be necessary for the Judge to decide whether the harm which would be caused is disproportionate to the public interest in open justice and the freedom to receive information “of any kind”. In such cases it may be necessary for the Judge to weigh the public interest in receiving the particular information. But in the absence of identified harm from the publicity which clearly extends beyond what is normal in such cases, the presumption of public entitlement to the information prevails. Any other approach risks creating a privilege for those who are prominent which is not available to others in the community and imposing censorship on information according to the Court’s perception of its value.
10 Lewis v Wilson & Horton Ltd, above n 1, at [68].
[30] In the context of civil proceedings, in Hosking v Runting (concerning an attempt to prevent publication of photographs of the Hoskings’ children), the question was asked:11
... Should public figures have lower expectations of privacy in relation to their private lives, and how does this impact on the families of public persons?
[31] While noting that “the special position of children should not be lost sight of”,12 that question was answered as follows:13
It is a matter of human nature that interest in the lives of public figures also extends to interest in the lives of their families. In such cases, the reasonable expectations of privacy in relation to at least some facts of the families’ private lives may be diminished. Of course there may be special circumstances pointing away from that conclusion, such as where there is evidence before the Court establishing a risk to the plaintiff directly resulting from the nature of the public figure’s role; ...
[32] While the comments in Hosking v Runting are not directly on point in this case, they were made following an exhaustive concern of international and New Zealand authorities (including the NZBORA) and indicate the approach the courts should take.
The factors
[33] It was submitted that the proceeding was concerned with matters of a personal and private nature. That is true of many proceedings before the courts. It is likely to be true of most, if not almost all, proceedings in the Family Court, and in this Court where matters of personal relationships and relationship property are in dispute. However, there is no default general protection against publication. No particular reason or circumstances relating to the parties to this proceeding was suggested as justifying an order restricting publication of their names.
[34] The position of the parties’ young children must be protected, but I am satisfied that that can be achieved by way of a specific order preventing publication
11 Hosking v Runting [2005] 1 NZLR 1 (CA) at [120] per Gault and Blanchard JJ (Tipping, Keith and Anderson JJ concurring).
12 At [123].
13 At [124].
of details that may identify them. Similarly, financial information relating to the company in respect of which publication may have adverse consequences for the company may be protected by way of a specific order. Neither of these two factors requires a general order that the party’s names not be published.
Conclusion
[35] The parties have not satisfied their onus of establishing that there are exceptional circumstances relating to them, personally, that could displace the principle of open justice. I have concluded that there are no grounds on which the order preventing publication of the parties’ names can be sustained.
[36] However, it is still necessary to consider whether open justice also requires that information concerning the parties’ young children may be published. They are not parties to this proceeding, and I am satisfied that protecting the interests of the children outweighs any public interest in their parents’ dispute. On balance, I am satisfied that an order should be made preventing publication of anything that may identify them.
[37] With respect to financial information concerning the company, I accept the parties’ submission that publication of commercially sensitive financial information relating to the company has a real risk of causing damaging consequences for the company, if published and therefore made available to its competitors. I am satisfied, on balance, that the interests of the company outweigh any public interest in the dispute between Ms Ridge and Mr Parore.
[38] Accordingly, I direct that there is to be no reference in any report of this proceeding to:
(a)Any pleading, evidence, or submissions which relate directly to the parties’ young children; and
(b)Any financial information concerning the third defendant company.
[39] The above order replaces the order made on 22 March 2012. For completeness, I record that an order declining access to the Court file for this proceeding remains in place.
Andrews J