Solicitor-General v Newsroom NZ Limited

[2021] NZHC 1034

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 1034

IN THE MATTER OF

an application for orders restraining publication, and interim injunction

UNDER THE

Senior Courts Act 2016 and Family Court Act 1980

BETWEEN

SOLICITOR-GENERAL

Plaintiff/Applicant

AND

NEWSROOM NZ LIMITED

Defendant/Respondent

Hearing:	On the papers
Appearances:	D J Perkins and K Laurenson for the Plaintiff/Applicant T J Castle and B J R Keith for the Defendant/Respondent
Judgment:	10 May 2021

JUDGMENT OF COOKE J

(Costs)

[1]    By judgment dated 18 December 2020 I granted the Solicitor-General’s on notice application for an interim injunction preventing Newsroom from continuing to post certain documentary style reports.1 This followed earlier orders on a without notice basis.2 In the judgment I reserved the question of costs and indicated it could be addressed by memoranda. By memorandum dated 30 March 2021 the Solicitor- General has sought an award of costs on a 2A basis, and this is opposed by Newsroom by counsels’ memorandum dated 15 April 2021.

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

2      Solicitor-General v Newsroom NZ Ltd [2020] NZHC 3150.

SOLICITOR-GENERAL v NEWSROOM NZ LIMITED [2021] NZHC 1034 [10 May 2021]

[2]    The calculation of costs on a 2A basis is not disputed by Newsroom. This includes costs for the commencement of the proceedings and the associated filing fee, but those steps were necessary to bring the application for an interim injunction, and it appears unlikely that the proceedings will proceed further, however Newsroom is yet to finally confirm its stance in that respect.

[3]    Newsroom argues that costs should lie where they fall under r 14.7(e) and (g) of the High Court Rules 2016. Rule 14.7 allows there to be a refusal or reduction in the costs otherwise payable if:

(e)the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding;

[4]    Counsel for Newsroom referred to Ratepayers and Residents Action Association Inc v Auckland City Council and to New Zealand Climate Science Education Trust v National Institute of Water and Atmospheric Research Ltd which address the relevant principles for when this rule might be applied.3 Newsroom argues that the correct interpretation and application of the provisions in the Family Court Act 1980 raised questions of wider public interest which had not been previously subject to authoritative determination by the Court. Some of the conclusions reached by the Court involved reasonably complex questions and a particular approach. It is also argued that Newsroom had adopted a responsible approach, including in its engagement with the Solicitor-General and by its offers during the course of the proceedings to alter what it had posted. It also takes the point that it was raising issues concerning “reversed uplifts” that involved broader questions of public importance, and that its coverage had contributed to the public debate that had resulted in political reaction. It emphasised the media’s role in exploring issues of this kind, and the importance of freedom of expression in that context.

[5]    The Solicitor-General argues there is no basis to depart from the general principle that costs follow the event, and she emphasises the written concerns she had raised with Newsroom before the further stories were posted.

3      Ratepayers and Residents Action Association Inc v Auckland City Council [1986] 1 NZLR 746 (CA); New Zealand Climate Science Education Trust v National Institute of Water and Atmospheric Research Ltd [2013] NZCA 555 at [12]–[13].

[6]    I do not accept that the factors emphasised by Newsroom justify either a reduction in the costs award, or a determination that costs should lie where they fall. This is so for a series of related reasons:

(a)The interim injunctions granted on a without notice, and then on notice basis were only necessary because Newsroom had engaged in conduct that potentially constituted contempt of court, as well as a potential offence against s 11B(6) of the Family Court Act 1980. An application to the Court only became necessary when Newsroom declined to take its posted articles down. Given the findings of the Court that this conduct possibly involved contempt it is difficult to see how its conduct could be regarded as reasonable, or as advancing the public interest.

(b)The Solicitor-General had previously written to Newsroom raising her concerns about the reversed uplift stories, and the potential for them infringing the requirements of the legislation. Newsroom proceeded to publish notwithstanding these warnings.

(c)The conclusions reached by the Court were not finely balanced. I indicated I had little hesitation in finding that the publications involved a report on the proceedings,4 and that it was obvious that the publications included identifying information.5

(d)The offers made by Newsroom only involved comparatively minor changes by way of editing. It did not address the more profound nature of the potential contempt. The further incremental offers made during the course of the proceeding also did not address the key problems.

[7]    I recognise that the publications can be said to have contributed to a matter of public debate, and that the media have a role in that context. But that contribution was at the expense of the privacy interests that were protected by legislation. In particular, and irrespective of the views of the former foster parents who can be taken to have

4      Solicitor-General v Newsroom NZ Ltd, above n 1, at [22].

5 At [45].

agreed to their privacy being breached, the publications involved a significant invasion of the privacy of the children who were in a highly distressed and vulnerable state, and potentially also to their new foster parents. The provisions of the legislation are directed at protecting vulnerable persons such as these children from this kind of exposure.

[8]    For these reasons I do not accept that there are grounds for a public interest exception to be applied. The Solicitor-General is entitled to costs as claimed.

Cooke J

Solicitors:

Crown Law for the Plaintiff/Applicant

Tim Castle for the Defendant/Respondent