Te Kohanga Reo National Trust Board v Maori Television Service

[2013] NZHC 2490

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2013-485-6215 [2013] NZHC 2490

UNDER  Rule 7.43 of the High Court rules

BETWEEN  TE KOHANGA REO NATIONAL TRUST BOARD

TE PATAKA OHANGA LIMITED Plaintiffs

ANDMĀORI TELEVISION SERVICE Defendant

Hearing:                   23 September 2013

Counsel:                  N J Russell with J S Braithwaite for Plaintiffs

T C Stephens for Defendant

Judgment:                23 September 2013

ORAL JUDGMENT OF THE HON JUSTICE KÓS

[1]      Mr Russell and Ms Braithwaite appeared before me this afternoon in support of an urgent oral application for an interim injunction to preclude screening of Māori Television’s  “Native  Affairs”  current  affairs  programme  at  8.30  pm  tonight. Mr Stephens appears, obviously unserved, and therefore it may be said on a kind of oral Pickwick basis, for the defendant Māori Television Service.

[2]      At 3.03 pm on Friday 20 September 2013, Māori Television sent to the plaintiff’s manager, Mr Gene Potae, a set of 12 questions.   A number of these questions relate specifically to credit card spending by named employees or trustees of the plaintiffs.  There are also two questions in relation to screening of staff for

prior criminal or dishonesty convictions.

TE KOHANGA REO NATIONAL TRUST BOARD & TE PATAKA OHANGA LIMITED v MĀORI

TELEVISION SERVICE [2013] NZHC 2490 [23 September 2013]

[3]      At 5.08 pm on Friday, Mr Potae responded to Māori Television.   Mr Potae said that he had concerns that the questions were based on confidential personal information that had been procured in breach of confidence.   He said that legal advice  would  be  taken,  but  in  the  meantime  he  required  the  return  of  that information.   Over the course of the weekend, Māori Television got no closer to answers of the questions they had asked.  This morning instead came intimation that an urgent oral application for injunction would be sought.

Serious question to be tried?

[4]      In Court this afternoon Mr Russell submitted there was a clear and strong cause of action for breach of confidence.  There was no suggestion before the Court that the credit card information had been obtained through any legitimate waiver of confidence.  Mr Stephens opted not to make submissions to the Court on the source of the information obtained by his client.  In these circumstances there is a seriously arguable  case  that  there  has  been  a  breach  of  confidence,  subject  to  one consideration.

[5]      That consideration is this.  The Trust is a charitable trust incorporated under the Charitable Trusts Act 1957.  In addition it is in receipt of significant amounts of public expenditure.  For these purposes there is no material distinction between the plaintiffs.  The constitution of the second named plaintiff, which was handed up to me, indicates that it is to be used exclusively for charitable objects and has been incorporated solely to manage the economic activities of the Trust.

[6]      As  a  recipient  of  public  funds  and  as  a  charitable  trust  (with  the  tax advantages associated with that status) there is a public interest in the proper conduct of the affairs of that entity.  Its continued status as a charitable trust in part depends on that.  As does public confidence in the Trust enabling it to continue to receive public funding.

[7]      The questions asked by Māori Television raise, as Mr Russell acknowledges, fair questions that need to be answered.  On the face of the questions there is an issue as to whether payments made at certain shops involve illegitimate personal expenditure or legitimate Trust or TPOL expenditure.

[8]      Iniquity on the part of a claimant to breach of confidence can be advanced as a defence to resist an order protecting that confidence.  No authorities were cited to me this afternoon, but the principles are commonplace.1

[9]      On an urgent oral application the Court is not in a position to mediate the status of that defence.  It follows from the above that the plaintiffs have established a seriously arguable case as to breach of confidence at least in the interim.

Balance of convenience

[10]     I  am  satisfied  also  that  the  balance  of  convenience  favours,  at  least marginally, giving the plaintiffs an adequate opportunity to demonstrate the legitimacy of the transactions.

[11]     There  will  therefore  be  an  interim  injunction   against  the  defendant, precluding disclosure of the content of the documents referred to in questions 1 to 10 of the defendant’s list of questions, until 5.00 pm on Thursday, 26 September

2013.

[12]     Whether this interim injunction is continued will depend on answers given to the questions raised by Māori Television.  I am going to give the plaintiffs time to do so.    But  I am  not  going  to  give  them  very  much  time.    In  my  view  they  as Mr Stephens rightly says, must provide affidavit evidence providing full and frank disclosure of information relevant to the claim.  In that case that includes whether there is or not an iniquity defence available to the defendant.  That depends directly on whether there are answers available legitimising the expenditure questioned.

[13]     The plaintiffs have had the questions since the middle of the afternoon of Friday 20 September.  In my view they should be in a position to provide affidavit evidence  as  to  the  legitimacy  of  the  expenditure  or  otherwise  by  5.00  pm,

Wednesday 25 September 2013.

1      MA  v  Attorney  General  [2009] NZCA 490 at [22]–[23]; Attorney-General for  the  United Kingdom v The Wellington Newspaper Ltd [1988] 1 NZLR 129 (CA) at 178 and Attorney General v The Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 (HL) at 281.

[14]     They will have until that time to provide that evidence, along with the other documents which are required to be filed, namely a statement of claim, an interlocutory application for interim injunction and an original copy undertaking as to  damages.    I  record  for  completeness  that  in  the  course  of  the  hearing  this afternoon a facsimile copy of such an undertaking was provided.   I do not in the circumstances require the filing of a memorandum of counsel, as this hearing has sufficed for those purposes.

Further hearing

[15]     On Thursday, 26 September 2013 at 2.15 pm the Court will reconvene and consider whether the plaintiff is able to continue to advance a seriously arguable case for breach of confidence, having regard to the fuller facts deposed to in its affidavit evidence.  At that point the Court will also reconsider the balance of convenience which at the moment favours, albeit marginally, the granting of injunctive relief.

Stephen Kós J

Solicitors:

Chen Palmer, Wellington for Plaintiffs

Simpson Grierson, Wellington for Defendant