Solicitor-General v Newsroom NZ Limited

[2021] NZHC 2229

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-715

[2021] NZHC 2229

BETWEEN

SOLICITOR-GENERAL

Plaintiff

AND

NEWSROOM NZ LIMITED

Defendant

Hearing:

On the papers

Appearances:

D J Perkins and K Laurenson for the Plaintiff/Applicant T J Castle B J R Keith for the Defendant/Respondent

R K P Stewart for Media Freedom Committee (Proposed intervenor)

Judgment:

27 August 2021

JUDGMENT OF COOKE J

(Leave to appeal)

[1]                  By application dated 4 June 2021 the defendant seeks leave to appeal the judgment granting the Solicitor-General an interim injunction pursuant to s 56(3) of the Senior Courts Act 2016.1 It also seeks leave to advance the application out of time.

It further seeks leave to appeal the subsequent costs decision.2

[2]                  The parties agreed that the applications could be determined on the papers, and submissions dated 19 July 2021 were then filed by the defendant. By memorandum dated 27 July 2021 the Solicitor-General indicated that she abided by the decision of the Court on the applications.

1      Solicitor-General v Newsroom NZ Ltd [2020] NZHC 3441.

2      Solicitor-General v Newsroom NZ Ltd (Costs) [2021] NZHC 1034.

SOLICITOR-GENERAL v NEWSROOM NZ LIMITED [2021] NZHC 2229 [27 August 2021]

[3]                  In addition, by application dated 18 August 2021 the Media Freedom Committee, an unincorporated body comprising representatives of the five main accredited news media organisations in New Zealand applied for orders granting it leave to intervene. That application is supported by an affidavit of Miriyana Alexander who is the chair of the Committee sworn 17 August 2021 and a memorandum of counsel dated 18 August 2021. The Committee indicates that it supports the applications for leave to appeal. By memorandum dated 24 August 2021 the Solicitor- General abides by the decision of the Court on the intervention.

Leave to appeal

[4]                  Under s 56 of the Senior Courts Act 2016 the Court of Appeal is empowered to hear and determine appeals from judgments of the High Court, but under s 56(3) no appeal lies from a decision of the High Court made on an interlocutory application unless leave to appeal is given by the High Court by application made within 20 working days, or any further time that the High Court allows.

[5]In Greendrake v District Court of New Zealand the Court of Appeal said:3

[6]  In Finewood Upholstery Ltd v Vaughan, to which Dunningham J referred to in the leave decision, Fitzgerald J appropriately observed that the requirement for leave to appeal should serve as a filtering mechanism to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made.4 The following considerations were recognised as relevant on an application for leave to appeal:

(a)a high threshold exists;

(b)the applicant must identify an arguable error of law or fact;

(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;

(d)the circumstances must warrant incurring further delay; and

(e)the ultimate question is whether the interests of justice are served by granting leave.

3      Greendrake v District Court of New Zealand [2020] NZCA 122.

4      Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].

[7]  This Court in Ngai Te Hapu Inc v Bay of Plenty Regional Council5 indicated that considerations similar to the principles applicable to applications under the former s 24G of the Judicature Act 1908, as explained in Meates v Taylor [Leave],6 apply to applications under s 56(5), stating:

We agree that leave to appeal should only be granted where the significance or implications of an arguable error of fact or law, either for the particular case or for the applicant or as a matter of precedent, warrants the further delay which the appeal process would involve.

[6]    I do not apprehend the considerations listed in [6] are a test. It seems to me that the observation at the start of [6] — that the leave requirement acts as a filtering mechanism — is the most important point. An applicant for leave to appeal will need to demonstrate that there is good reason to appeal an interlocutory decision to the Court of Appeal in advance of the appeal rights relating to the substantive decision. Interlocutory decisions are made in a variety of circumstances, and the reasons why an appeal to the Court of Appeal may be appropriate will also vary, although considerations such as those listed may often be significant.

[7]    In their submissions in support, counsel for Newsroom identify proposed questions of law that involve important issues relating to the statutory scheme under the Family Court Act 1980, and the limits of freedom of expression. They contend that the questions are capable of serious argument. By themselves I do not accept that such arguments would warrant the grant of leave. In the normal course it would be expected that such issues would be addressed in a substantive judgment of the High Court, and then proceed to the Court of Appeal in accordance with the right of appeal in the normal way.

[8]    But as counsel for Newsroom also argue the interim injunction decision was reached after full submissions, and it has essentially operated in a similar way to a final injunction. Indeed, as the Solicitor-General pointed out in the memorandum advising that she abided by the decision of the Court, Newsroom could have invited the Court to make the interim injunction a permanent one and then exercised its rights of appeal. As I apprehended it, the interim injunction decision has effectively determined the substantive dispute between the parties at first instance. Indeed, in the

5      Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291.

6      Meates v Taylor (1992) 5 PRNZ 524 (CA) at 526.

judgment I observed that the parties appeared to argue the matter as if it was the substantive decision.7 No steps have been taken since delivery of the judgment to deal with the question of any permanent injunction. The only matter addressed has been the argument concerning the award of costs.

[9]    In those circumstances I see no reason to insist that the parties must go through the motions of proceeding further in this Court to obtain a final decision on a permanent injunction to allow Newsroom to exercise a right of appeal to the Court of Appeal.

[10]   The only thing that has caused me to hesitate is that the evidence before the Court explaining the course of the proceedings in the Family Court is in an incomplete state. As the judgment records I found it necessary to ask for further information from the Family Court file.8 Had the matter proceeded further in this Court I would have expected the Solicitor-General to put before the Court an affidavit that more clearly set out the course of the proceedings in the Family Court, exhibiting the relevant documents from the court file in a more organised way. I do not apprehend that I have jurisdiction to grant leave to appeal on condition that such an affidavit be filed under r 45 of the Court of Appeal (Civil) Rules 2005. But I can record my expectation that the Solicitor-General will duly file an affidavit setting out for the Court of Appeal the course of the proceedings in the Family Court in a more appropriate way.

[11]   On that assumption I accept that leave to appeal is appropriate. There is no difficulty with granting the leave to appeal out of time.

[12]   The defendant also seeks leave to appeal the associated costs decision. It would be rare for an interlocutory costs decision to warrant leave to appeal to the Court of Appeal. But given that I am granting leave to appeal the judgment to which the costs decision relates I see no reason why the appeal to the Court of Appeal should not also address any argument Newsroom wishes to make about costs. Leave to appeal that decision is also granted.

7      Solicitor-General v Newsroom NZ Ltd, above n 1, at [61].

8      At [15] and [23].

Intervention application

[13]   The intervention application seeks leave to intervene in relation to the Court’s decision on the application for leave to appeal, indicating the proposed intervenor supports the application. It also advised that an application to intervene would be made to the Court of Appeal if leave was granted.

[14]   Given that the parties had earlier agreed that the leave applications could be determined on the papers, and I have agreed that leave should be granted, I see no need to delay issuing this decision to give the Committee an opportunity to intervene and make submissions on the leave applications.

[15]   There are then no further steps anticipated by the parties in relation to the High Court proceeding as I understand it. The only steps that have been taken this year concern the argument about costs. So I also see no reason to grant the intervention application for the proceedings in this Court, at least as things stand at present.

[16]   In those circumstances the application to intervene in the High Court proceedings is declined. Whether the Committee should be granted leave to intervene in the Court of Appeal is a matter to be dealt with by that Court.

Cooke J

Solicitors:

Crown Law for the Plaintiff Tim Castle for the Defendant

Darroch Forest for the Proposed Intervenor