Sanders v Sanders

[2010] NZCA 176

NOTE: HIGH COURT SUPPRESSION ORDERS REMAIN IN FORCE

IN THE COURT OF APPEAL OF NEW ZEALAND

CA279/2010
[2010] NZCA 176

BETWEENJOHN ROBERT SANDERS

Applicant

ANDYVONNE JETTI SANDERS

First Respondent

ANDNATIONAL BUSINESS REVIEW

Second Respondent

Hearing:6 May 2010 (By teleconference)

Court:William Young  P, O'Regan and Arnold JJ

Counsel:W Akel and R A Hacking for Applicant

D A Hollings QC for First Respondent
J Anderson (in person) for Second Respondent

Judgment:10 May 2010 at 3 pm

JUDGMENT OF THE COURT

A            The application for a stay is dismissed.

B            Costs are reserved.

____________________________________________________________________

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1]        The applicant applied late on 5 May 2010 for a stay of a judgment of the High Court giving leave to the second respondent, the National Business Review, to publish certain details relating to the litigation between the applicant and the first respondent.  The NBR was to go to press at 1 pm, and we therefore heard from counsel and Mr Anderson for NBR by telephone at midday on 6 May 2010.  At the end of the hearing we refused the stay and said that we would provide our reasons in writing later.  We now set out those reasons.

Background

[2]        Mr and Mrs Sanders are parties to an agreement relating to relationship property entered into pursuant to s 21 of the Property (Relationships) Act 1976 on 16 May 2008.  The agreement was entered into after the breakdown of their marriage and after there had been a mediation as to the distribution of relationship property and property held by trusts associated with them.  Mr Sanders claims that the effect of the agreement is to cause serious injustice or alternatively that the agreement was based on a common mistake as to the value of the assets to which it relates. 

[3]        The application to set aside the agreement came before Stevens J in the High Court.  During the High Court hearing Mr Anderson sought leave under s 11B(3) of the Family Courts Act 1980 for NBR to publish certain details about the litigation.  After full argument, Stevens J issued an oral judgment on 30 April 2010 giving leave to report certain details and refusing leave to report certain other details.  In particular, the NBR was permitted to report the names of the parties and the address of one of the principal assets dealt with in the s 21 agreement, a property in Remuera Road, Auckland.

[4]        Acting in accordance with that leave, the NBR published an article about the case on its website, accessible only to paid subscribers to that website.  This article was posted immediately after Stevens J delivered his judgment on 30 April 2010, and remains on the site now.  The NBR wishes to publish a similar article in its print edition which will appear on Friday 7 May 2010.  As noted earlier, the deadline for copy for that edition was 1 pm on 6 May 2010.

[5]        On Tuesday 4 May 2010, counsel for Mr Sanders filed an application for an order suppressing all further publication pending an appeal against the decision of Stevens J granting leave to the NBR.  A telephone conference was organised before Stevens J on 5 May 2010, at which he heard from counsel for Mr Sanders and from Mr Anderson for NBR.  Ms Hollings QC for Mrs Sanders made submissions but Mrs Sanders abided the decision of the Court.  Stevens J issued an oral judgment at the end of that conference refusing the orders sought.  He set out the background in some detail, and then addressed the criteria for the granting of orders in the nature of a stay as set out in McGechan on Procedure.[1]  Having considered those factors, he refused the stay.

Our assessment

[1]      R M Taylor (ed) McGechan on Procedure (looseleaf ed, Brookers) at [5.212].

[6]        It is convenient to consider the matters raised in argument by reference to the criteria summarised in McGechan on Procedure.[2]  Those criteria are:

(i)Whether the appeal may be rendered nugatory by the lack of a stay.  This factor is not determinative.[3]

(ii)Whether the successful party will be injuriously affected by the stay.

(iii)The bona fides of the applicant as to the prosecution of the appeal.

(iv)The effect on third parties.

(v)The novelty and importance of questions involved.

(vi)The public interest in the proceeding.

(vii)The overall balance of convenience and the status quo (although these have been viewed as of modest relevance at most, and as assumed into factors (i) and (ii)).[4]

[2]      Ibid.

[3]      Cousins v Heslop [2007] NZCA 377 at [10].

[4]Avowal Administrative Attorneys Ltd v District Court at North Shore HC Auckland CIV-2006-404-7264, 8 May 2009 at [11] per Venning J.

Appeal rendered nugatory?

[7]        Mr Akel was critical of the High Court Judge’s observation that this factor was not determinative.  He said that if a stay were not granted, publication would immediately occur and the right of appeal against the decision of Stevens J granting leave to publish would be rendered nugatory.  We make two observations about that submission. 

[8]        The first is that, because Mr Sanders did not immediately pursue an appeal and a stay after Stevens J granted leave to the NBR, the cat is already out of the bag, at least to some extent.  That is because of the publication of the article on the NBR website, which Mr Anderson told us made it accessible to up to 50,000 readers.  We accept that, if publication in the print edition of the NBR occurs, the cat will be even further out of the bag (Mr Anderson told us the print version was accessible to 95,000 readers), but the reality is that Mr Sanders’ delay in pursuing the appeal and the stay has made it possible for publication to occur already and for a significant number of readers to have access to the story.

[9]        The second observation is that the appeal is not rendered entirely nugatory because we understand that the High Court hearing has now been adjourned until August, which means that there will be no further developments which will attract publicity until then.  If Mr Sanders wishes to prevent further publication arising from developments at the August hearing, there will be sufficient time for his appeal to be heard in this Court before then.

Injurious effect

[10]       Mr Akel said that there would be no adverse impact on NBR if the stay were granted.  While it would be prevented from publishing the story in its print edition, that would only be a restraint until after the hearing of the appeal and, if the appeal fails, publication could occur then.  We accept that the impact on NBR would be one of delay rather than anything more substantive than that, but as Mr Anderson pointed out the optimal time for publication of a story is when it is current.

Bona fides

[11]       We accept that Mr Sanders wishes to pursue his appeal and has already filed a notice of appeal.

Effect on third parties

[12]       The focus of this element was the effect of publication on the children of Mr and Mrs Sanders.  The oldest is 17 and a half years old and there are twins who are 14 years old.  We were told that the impetus for Mr Sanders’ appeal was that the oldest child had been provided with a copy of the NBR online article, though it appears that she had not read it.  We do not consider it appropriate to express our views on the merits of the appeal in any detail in the context of a stay application.  But in general terms we agree with the way in which Stevens J dealt with this aspect of the case in the High Court.  We do not underestimate the privacy interests of the children, but the reality is that their involvement in this litigation is entirely incidental, and the publicity relating to the value of the family home is no greater than would occur in any civil litigation affecting that asset.

Novelty and importance

[13]       We accept that the scope of the new provisions dealing with the reporting of Family Court proceedings in ss 11A – 11C of the Family Courts Act, particularly in relation to relationship property proceedings, are issues of some novelty and importance.  We agree with Mr Akel that there would be some benefit in this Court considering the criteria to be applied in the exercise of the discretions provided for in those provisions.  If there had not already been publication on the NBR website following the judgment of Stevens J, we may have seen this point as having some force.

Public interest

[14]       We accept that there is some public interest in this Court dealing with the issues raised by ss 11A – 11C.

Overall balance of convenience and status quo

[15]       We agree with Stevens J that the overall balance of convenience in this case is to permit publication of the limited details for which he gave leave in his 30 April judgment.  The reality is that publication occurred some time ago and has continued since last Friday on the NBR website.  We understand there has not been publication in other media.  We do not see any utility in now preventing publication in the print edition, and we would not be prepared to order NBR to discontinue publication on its website given the delay in pursuing the appeal and the stay.  There will now be no further developments in the litigation until August, and the appeal can proceed before then if Mr Sanders wishes to pursue it to prevent publicity arising from the resumed hearing.

Result

[16]       It was for these reasons that we refused the stay.

Costs

[17]       Costs are reserved.

Solicitors:

Brookfields, Auckland for Applicant

Dyer Whitechurch, Auckland for First Respondent