Sagapolu v Commonwealth Securities Ltd HC Auckland Cp99-Sw02

[2002] NZHC 240

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY CP99-SW02

BETWEEN LOSI SAGAPOLU of Auckland. Widow
First Plaintiff

AND SOE SAGAPOLU and HAZEL SAGAPOLU
Second Plaintiffs

AND COMMONWEALTH SECURITIES LTD
First Defendant

AND McDILLON HOLDINGS LTD
Second Defendant

AND McVEAGH KENNEDY SOLICITORS NOMINEE COMPANY
Third Defendant

AND MORGAN COAKLE sued as a firm
Fourth Defendant

Hearing: 20 March 2002

Judgment: 20 March 2002

Counsel: Kadri M Elcoat for plaintiffs
Raynor Asher QC for first and second defendants
No appearance third and fourth defendants
William Akel for Television New Zealand

JUDGMENT OF WILLIAMS J

Solicitors:
Dennis J Gates, P O Box 22, Whangaparaoa, for plaintiffs (Fax: [phone])

[1] This judgment deals with an application by Television New Zealand’s “Fair Go” programme to film the Plaintiffs’ interlocutory application for an interim injunction against the First, Second and Third Defendants, set down for hearing on 21 March 2002 at 9:00am.

[2] The Plaintiffs took a neutral stance in relation to the application. The First and Second Defendants opposed it. Although the injunction is sought against the Third Defendant and they were aware of this hearing, and although counsel advised that the Fourth Defendant is likely to be extensively mentioned in submissions, neither the Third nor the Fourth Defendants took any part.

[3] The application is declined.

[4] The reasons for the Court reaching that conclusion are discussed below.

[5] In the first place, the Court fully accepts the principle that all Court proceedings should, as far as possible, be conducted in public and that the media are the “eyes and ears” of the public and the main conduit by which the public is informed of Court proceedings. That notwithstanding, however, the Plaintiffs’ application for an interim injunction under R 236A is, technically, an interlocutory application required by R 234 to be heard in chambers unless the Court otherwise directs. Rule 72A says that where interlocutory applications are heard in chambers “particulars of the hearing or the decision or both” may be published unless the Court directs to the contrary. Those rules give an indication that the hearing of applications such as one seeking an interim injunction should not be publicly broadcast unless there are good reasons for so doing.

[6] Following on from that, whilst applications to film criminal proceedings are now reasonably common, it still remains unusual for the media to film civil proceedings. Mr Akel referred the Court to two civil proceedings where filming had been permitted (Phipps v Royal Australasian College of Surgeons CP37/95 HC Dunedin 17 March 1997 Chisholm J, and Chisholm v Auckland City Council CP559/98 HC Auckland 20 November 2000 Chambers J) but conceded that he had been able to find no precedent in New Zealand for the filming of an interim injunction application. Whilst that of itself does not mean that an application such as that with which the Court is dealing cannot be granted it, too, provides a pointer against granting “Fair Go”s application.

[7] Following on from that again, although no final decision has as yet been taken as to whether those who have sworn affidavits in this proceedings will be cross-examined, in the ordinary course of events cross-examination is unlikely. Mr Akel was unable to direct the Court’s attention to any earlier civil case in which filming had been permitted in a non-witness action. That fortifies the indication discussed in the last paragraph.

[8] If filming were permitted, it is proposed to broadcast the material on 3 April 2002 (or 27 March 2002 according to the application to the Court). Though unlikely, conceivably that may have been before delivery of the Court’s judgment on the interim injunction application. It would certainly have been before a hearing on the substantive issues in the case and a final adjudication on the parties’ rights.

[9] Pursuant to the “Guidelines for Expanded Media Coverage of Court Proceedings” (May 2000) television coverage of Court proceedings is limited under chapter 2 A.2 to “normal news programmes” and under chapter 2 A.1 the coverage is required to be “accurate impartial and balanced”.

[10] The application is for an interim injunction preventing the First, Second and Third Defendants from selling or disposing of the Sagapolus’ home at 17 Coletta Lane, Te Atatu South, Auckland, pursuant to securities registered against it by the defendants or from taking possession of the home. At the heart of the claim will be whether the plaintiffs can demonstrate within the authorities on injunctions that the documents signed by them may breach the Credit Contracts Act 1981 in the various ways set out in the statement of claim. The First and Second Defendants deny that to be the case. However, given that if the First and Second Defendants are permitted to proceed to obtain possession of the Sagapolus’ home and sell it under their security documents Mrs Losi Sagapolu, as a widow, and her family will be rendered homeless and given that Mr Mercep, a journalist with “Fair Go” has been prepared to assist Mrs Losi Sagapolu financially and has made an affidavit on the Plaintiffs’ behalf in these proceedings, it could turn out to be correct as submitted by Mr Asher QC, senior counsel for the First and Second Defendants, that any “Fair Go” coverage may not be “accurate impartial and balanced”.

[11] More importantly, it may be doubtful that “Fair Go” is a “normal news programme” within chapter 2 A.2 of the “Guidelines”. In the limited time available for the hearing Mr Akel, counsel for Television New Zealand, submitted that “Fair Go” fell within that definition. That proposition was challenged by Mr Asher. Without the opportunity to view some of the “Fair Go” programmes and hear extended argument on the point, the Court is not prepared to rule that “Fair Go” is outside chapter 2 A.2 but it is certainly not a “normal news programme” within the sense of Television One News or Television Three News whatever may be its news content. That provides a further indicator pointing against the granting of the application.

[12] There were further matters discussed during the hearing as to normal mechanical matters such as who would be filming, when and in what manner but in view of the Court’s decision no further reference to those matters is necessary.

[13] In the event, the application is dismissed. The Court notes that Mr Mercep was permitted to be present in the Courtroom during the hearing. There will be no order under R 72A debarring publication of this decision.

[14] If there are any consequences of those orders in costs, they can be dealt with by the parties by memoranda.