Sellman v Slater

[2021] NZHC 752

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-1312

[2021] NZHC 752

UNDER

The Defamation Act 1992

BETWEEN

JOHN DOUGLAS SELLMAN

First Plaintiff

BOYD ANTHONY SWINBURN

Second Plaintiff

SHANE KAWENATA FREDERICK BRADBROOK

Third Plaintiff

AND

CAMERON SLATER

First Defendant

Appearances:

D Salmon for the Plaintiffs

No appearance by or for the First Defendant E Grove for Second and Third Defendants W Akel for Fourth and Fifth Defendants

D Fisher in person for NZ Herald
J Miles QC for British American Tobacco (NZ) Limited as non party

Judgment:

9 April 2021

JUDGMENT OF WALKER J

This judgment was delivered by me on 9 April 2021 at 2.15 pm

Pursuant to Rule 11.5 High Court Rules Registrar/Deputy Registrar

SELLMAN v SLATER [2021] NZHC 752 [9 April 2021]

CARRICK DOUGLAS MONTROSE GRAHAM

Second Defendant

FACILITATE COMMUNICATIONS LIMITED

Third Defendant

KATHERINE RICH

Fourth Defendant          (Discontinued)

NEW ZEALAND FOOD AND GROCERY COUNCIL INC

Fifth Defendant             (Discontinued)

Introduction

[1]    David Fisher is a senior journalist with the NZ Herald. He seeks access to documents on the court file of this long running defamation proceeding.1 This is the second instalment of an application by media for access to court documents. The question for the Court is where to strike the balance between open justice and countervailing privacy and confidentiality interests. The question arises in the context of proceedings settled at trial and where collateral issues with a prospective witness fell away before being argued or determined.

Background

[2]    On 3 March 2021, this judge-alone defamation trial commenced in the High Court.2 The litigation had been hard fought. It had taken nearly five years to reach trial and had a complex procedural history. Only the second and third defendants, Carrick Graham and Facilitate Communications Limited (“FCL”), were left defending the claims by the time of trial. Mr Slater, the first defendant, consented to judgment being entered against him, having been adjudicated bankrupt on 27 February 2019.3 On 20 September 2019, Palmer J ordered that Mr Bradbrook, the third plaintiff, be taken as having formally discontinued his claims against the fourth and fifth defendants.4 By mid-October 2020, the first and second plaintiffs had settled on a confidential basis with the fourth and fifth defendants and were granted leave to discontinue the claims against them.5

[3]    On 23 December 2020, just over two months before trial, the plaintiffs served a subpoena on British American Tobacco (New Zealand) Limited (“BAT”). The subpoena required BAT to produce to the Court at trial any invoices which may have been rendered to BAT by Mr Graham and associated parties in the period 2008 to

1      This is the third application for access. The first and second were pre-trial applications dealt with in Sellman v Slater (Media access) [2021] NZHC 349. Some aspects of earlier media applications were deferred. This judgment deals with the deferred aspects and the further access request.

2      It commenced during Alert Level 3 announced as…