v v Police HC Wellington CIV-2009-485-960

[2009] NZHC 589

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2009-485-960

BETWEEN  V

Plaintiff

ANDNEW ZEALAND POLICE First Defendant

ANDTV WORKS LIMITED Second Defendant

AND  FAIRFAX NEW ZEALAND LIMITED Third Defendant

ANDAPN NEW ZEALAND LIMITED Fourth Defendant

Hearing:         20 May 2009 (by telephone conference) Appearances: Mr Hodder SC and Mr Smith for the plaintiff

Mr Kelly for the first defendant
Ms Bradley for the second defendant
Mr Stewart for the third defendant
Mr Ringwood and Ms Goatley for the fourth defendant

Judgment:      21 May 2009         at 12 pm

JUDGMENT OF MALLON J (Minute of and reasons for interim orders)

[1]      At approximately 4 pm on 20 May 2009 I received an ex parte application under which the plaintiff seeks urgent orders against the defendants.   I also heard from plaintiff’s counsel in support of the application at that time.   I directed that plaintiff’s counsel endeavour to contact who the Court understood to be the usual counsel for each of the defendants and that a telephone conference would be convened at 5.30 pm for any of those defendants who wished to be heard.   At

5.30 pm the telephone conference was convened with all the defendants represented

V V NEW ZEALAND POLICE AND ORS HC WN CIV-2009-485-960 21 May 2009

by counsel.  Urgency arose because of an item which the second defendant intended to broadcast on its TV3 6 pm news programme and because the plaintiff anticipated publications would be made by the third and fourth defendants.

[2]      At the conclusion of the telephone conference, and shortly before 6 pm, I

made orders in these terms:

1)Pending  further  order  of  the  Court,  the  first  defendant  shall  not disclose to any person any documents or information drawn from the Police file relating to the recent prosecution of the plaintiff, whether such documents or information have been sought by any person under the Official Information Act 1982 or otherwise;

2)Pending  further  order  of  the  Court,  the  second,  third  and  fourth defendants shall not publish any material based on or reproducing documents or information obtained from the first defendant in May

2009 by way of purported disclosure under the Official Information Act 1982 or otherwise, nor disseminate any such material or documents or information to any person (including persons employed by them) who is not already in possession of such materials or documents, and shall remove any such material or documents from any  website  operated  or  controlled  by  them,  provided  that  this excludes  information  as  published  on  the  Stuff  website  and  The Herald website as at 5.00 pm today, or the item to be broadcast by TV3 this evening; and

3)       Leave is reserved for any party to approach the Court if any further dispute arises as to proposed publication or broadcast of any of the material covered by orders 1 and 2, above.

[3]      The background is the first defendant’s prosecution of the plaintiff which culminated in a guilty plea on a charge of injuring with reckless disregard in April of this year.   That prosecution has received much media attention in the past year. Recently news media have obtained information from the police file pursuant to an

Official Information Request.  The plaintiff put before me a copy of a letter from the police to the Dominion Post (a newspaper published by the third defendant) dated 18

May 2009 which enclosed documents released pursuant to one such request.  (The documents released are not before me.)   The plaintiff’s concern is that this information has been released without prior consultation with him and that some of the information may be confidential and ought not to have been released.

[4]      The ex parte application was prepared as a matter of urgency and Mr Hodder SC indicated that it may be refined.   As it presently stands, as against the first defendant the plaintiff’s claim is that the information has been released in breach of a legitimate expectation that he would first be consulted.  The legitimate expectation is said  to  arise  because  the  decision  to  release  information  under  the  Official Information Act is a reviewable statutory power, that usual state sector practice is for there  to  be  consultation  with  those  directly  affected  by  the  information  to  be released,  and  that  in  this  case  the  plaintiff  understood  that  there  would  be consultation  because  of a  letter  from  the  police  to  the  plaintiff’s  counsel  dated

29 April 2009.  That letter is before me.  It refers to a number of Official Information Act requests having been made and says “[a]t such time when it is determined what information will be released, I will advise you”.

[5]      As against the media defendants, the claim, as it presently stands, is that some of the information released is confidential and has been improperly released in breach of the legitimate expectation and that therefore publication by them of such information would breach common law obligations of confidence.

[6]      Material supplied by the police pursuant to that request is published on the third defendant’s Stuff website and the fourth defendant’s The New Zealand Herald website and is also to be broadcast tonight by the second defendant.  I have before me the article on the Stuff website as at 2.05 pm under the heading “Tony V   police file released” and the article on The New Zealand Herald website as at 3.12 pm under the heading “Police evidence against Tony V   released”.

[7]      Mr Kelly, for the first defendant, said that the first defendant would not object to the interim order sought against it.

[8]      Mr Stewart, for the third defendant, said that he had not had the opportunity to review the plaintiff’s application, but said that if the cause of action was for breach of confidence then it did not appear to be a strong case.  He referred to Hunt v A [2008] 1 NZLR 368 in which the Court of Appeal referred to the need to show some unconscionability by the recipient of confidential information. He submitted that there was nothing to indicate that here – an Official Information Act request was made, material was released pursuant to that request, and the third defendant has received the information in good faith without knowledge of any confidentiality issues.

[9]      Mr Ringwood, for the fourth defendant, submitted that the application was unsatisfactory because it is unclear what information is asserted to be confidential and what is the basis for that assertion.  He submitted that it was not apparent that anything published on The New Zealand Herald website was confidential, nor that it was information that ought not to have been released pursuant to the Official Information Act.  He submitted that the information has already been published and the Court ought not to make orders that would be futile.  Overall he submitted that the application did not appear to have much of a basis.  He also said that it had just come to his attention that there was a second article on The New Zealand Herald website – which I did not have a copy of.

[10] Ms Bradley supported the submissions made on behalf of the other media defendants. She noted that there is already a good deal of information in the public domain and that there were no suppression orders in place in respect of the prosecution. I indicated that I was minded to grant a holding order in respect of information that was not already in the public domain via the website articles already published (for reasons set out at [13] below). Ms Bradley said that there was one part of the intended item on TV3 that went beyond the website articles but which was sympathetic to the plaintiff. She read out that part of the item and Mr Hodder confirmed that the plaintiff had no objection to that.

[11]     As the orders would be temporary there was a discussion about the timing of a further hearing.  The media defendants were concerned that the restraint be for as short a time as possible but recognising that all parties would need some time to

consider the information and their positions in light of that information.     It was proposed that the parties would have leave to come back to the Court at short notice if they wished to publish something further prior to the hearing and there was a dispute about whether they could.  Mr Hodder proposed the form of the orders that are set out above (at [2]).  No counsel had any further comment on the form of the orders.   Mr Ringwood noted that no undertaking as to damages had been filed. Mr Hodder confirmed what he had conveyed to me at the ex parte hearing that an undertaking as to damages would be given.

[12]     Mr Hodder asked whether the plaintiff could refer the orders to others who may have received the information, for example Radio New Zealand and Television New Zealand.   I said there was no issue with that.   I also said that the Court had received an email from Ms Helen Wild, on behalf of Television New  Zealand, advising that it did not have the information, did not need to be heard, and was content to abide the Court’s decision.

[13]     My assessment is that the information on the two websites does not appear to contain information which the plaintiff could claim ought not to have been released on confidentiality grounds.  Further that information is now in the public domain and there are different considerations when that is the case.  Counsel for the parties are not able to say what other information is included in what has been released by the police.  On the very limited information before me the strength of the plaintiff’s case in respect of that other information cannot be assessed, but I am not able to say there are no arguable causes of action.   The balance of convenience seems to me to be different as between the information that is already in the public domain and other information included in the bundle of material that has been released to the media defendants but has not yet been published.  The balance of convenience in respect of information that has not already been published favours the granting of the orders for a short period.   If confidential information is disclosed irreparable harm may be caused to the plaintiff.   Whereas if the orders are granted the publication of the information is delayed rather than necessarily prevented.

[14] Accordingly the orders set out at [2] above are made. It is intended that the orders will be in place for a short period so as to provide the parties with an

opportunity to more fully consider and argue the application.   A hearing will take place at 10 am on Tuesday 26 May 2009 when the Court will consider whether the interim orders are to continue.

Mallon J

Solicitors:

J E Hodder, Chapman Tripp, Wellington, [email protected]

K Kelly, New Zealand Police, Wellington, [email protected]

C Bradley, Media Works, Wellington [email protected]

R Stewart, Izard Weston, Wellington, [email protected]

A Ringwood, Bell Gully, Wellington, [email protected]