Sellman v Slater - [2016] NZHC 2542

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-001312 [2016] NZHC 2542

UNDER the Defamation Act 1992

BETWEEN

JOHN DOUGLAS SELLMAN First Plaintiff

BOYD ANTHONY SWINBURN Second Plaintiff

SHANE KAWENATA FREDERICK BRADBROOK

Third Plaintiff

AND

CAMERON JOHN SLATER First Defendant

CARRICK DOUGLAS MONTROSE GRAHAM

Second Defendant

… cont

Hearing: On the papers

Counsel:

D M Salmon and D Nilsson for Plaintiffs
B P Henry for First Defendant
E J Grove for Second Defendant
W Akel for Proposed Fourth and Fifth Defendants

Judgment:

25 October 2016

JUDGMENT NO 2 OF PALMER J (ACCESS TO THE COURT RECORD)

This judgment is delivered by me on 25 October 2016 at 3 pm pursuant to r 11.5 of the High Court Rules.

Counsel/Solicitors:
Lee Salmon Long, Auckland
B P Henry, Barrister, Auckland
E J Grove, Barrister, Auckland
Simpson Grierson, Auckland
Ruth Brown, Auckland

..................................................... Registrar / Deputy Registrar

SELLMAN & ORS v SLATER & ORS [2016] NZHC 2542 [25 October 2016]

FACILITATE COMMUNICATIONS LIMITED
Third Defendant

KATHERINE RICH Fourth Defendant

NEW ZEALAND FOOD & GROCERY COUNCIL INCORPORATED
Fifth Defendant

Summary

[1] The principle of open justice, and the right to seek, receive and impart information guaranteed under the Bill of Rights, is relevant to court consideration of requests to access documents on court files. Where a jury trial is in prospect, that principle and right must be balanced against the right to a fair hearing by an independent and impartial court, also guaranteed under the Bill of Rights. Care must be taken with what information is made publicly available from court files to ensure potential members of a jury do not become less impartial because of the information released. Not all the material on a court file will necessarily be admissible at trial. Trial by jury is not the same as trial by media.

[2] These proceedings, which are likely to be of public interest, may be the subject of a jury trial. I direct that all pleadings be released to the journalist, Ms Ruth Brown, once they are filed and served and can be reasonably anticipated not to need significant amendment – which will be when a trial date has been allocated in these proceedings.

Facts

[3] Ms Ruth Brown, a journalist from the publication New Zealand Doctor, has requested access to the file for this matter. She says the reason is so she can get context for the discussion at the argument over joinder of the fourth and fifth plaintiffs on 5 October 2016. She wishes to report on the case for her newspaper and website. Several of the defendants have relatively high public profiles and there is likely to be public interest in this trial.

[4] The plaintiffs and the second defendant oppose open access at this stage. The plaintiffs note the matter may be heard by a judge or a jury. They favour the general approach of deferring access to the court file until pleadings are finally settled, referring to Hotchin v APN New Zealand Ltd.1 The second…

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 Sellman v Slater

Details

AGLC: Sellman v Slater [2016] NZHC 2542
Case: [2016] NZHC 2542
Decision Date: 25 October 2016

CaseChat Overview and Summary

Sellman v Slater is a case involving a request for access to court documents by a journalist, Ms. Ruth Brown, who sought to report on the proceedings for her publication, New Zealand Doctor. The plaintiffs and one of the defendants opposed the request, while the other defendant had no objection. The court was required to balance the principle of open justice and the right to seek, receive, and impart information against the right to a fair hearing by an independent and impartial court. The court considered the importance of open justice, which maintains public confidence in the administration of justice by ensuring transparency and accountability. The court also considered the right to freedom of expression, which includes the right to impart information about court proceedings, subject to reasonable limits. The court found that the principle of open justice and the right to receive information are subject to limitations when necessary to serve the ends of justice, such as protecting the impartiality of potential jurors in cases where a jury trial is in prospect.

The court found that the allocation of a hearing date in the proceedings now constitutes the step equivalent to filing a praecipe for the purposes of extending qualified privilege to reports of pleadings. The court also considered the High Court Rules, which provide a general right of access to the formal court record and a power to inspect the court file or any document relating to a proceeding. The court found that the provision of information in the pleadings is likely to facilitate more accurate reporting of the proceedings than may occur otherwise. However, the court also found that reporting of other material, such as affidavits or other evidence, may impinge on the perceptions of potential jury members and then not be admitted as evidence at trial.

The court directed that all pleadings be released to Ms. Brown once all sets of pleadings have been filed and served and a trial date has been allocated in these proceedings. If Ms. Brown seeks further documents from the court files before trial, that request will need to be the subject of response by the parties and further consideration by the Court. This decision highlights the need to balance the principle of open justice and the right to seek, receive, and impart information with the right to a fair hearing by an independent and impartial court, particularly in cases where a jury trial is in prospect. The court found that the provision of information in the pleadings is likely to facilitate more accurate reporting of the proceedings than may occur otherwise, but that reporting of other material may impinge on the perceptions of potential jury members and then not be admitted as evidence at trial. This decision underscores the importance of careful consideration of requests for access to court documents, particularly in cases where a jury trial is in prospect.

Orders