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A v Fairfax New Zealand Limited HC Wellington CIV-2011-485-569 [2011] NZHC 71 (28 March 2011)

Last Updated: 29 March 2011

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF PLAINTIFF.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CIV-2011-485-569}

BETWEEN "A" Plaintiff

AND FAIRFAX NEW ZEALAND LIMITED First Defendant

AND APN HOLDINGS NEW ZEALAND LIMITED

Second Defendant

AND TELEVISION NEW ZEALAND LIMITED

Third Defendant

AND MEDIAWORKS NEW ZEALAND LIMITED

Fourth Defendant

AND DANYL MCLAUCHLAN Fifth Defendant

AND DAVID FARRAR Sixth Defendant

On papers

Judgment: 28 March 2011

_{JUDGMENT OF DOBSON J}

[1] The plaintiff in this proceeding (A) is the young man who has made a complaint of sexual offending against him by Mr Darren Hughes, who has recently

_{resigned from his position as a Member of Parliament. The fact of that complaint,}

"A" v FAIRFAX NEW ZEALAND LIMITED HC WN CIV-2011-485-569 [28 March 2011]

and the consequences for Mr Hughes, have been the subject of substantial media

reporting and comment. A’s identity has thus far not been disclosed.

[2] I have this afternoon considered an interlocutory application made without notice on behalf of A, seeking orders that would prohibit publication of A’s name or any identifying details of him. The Statement of Claim pleads that disclosure of A’s identity by any of the defendants would constitute the tort of breach of privacy. A is concerned that one or more of the defendants is about to name him, or link sufficient particulars individual to him, to enable him to then be identified. He has pursued the present application without notice, first because of urgency, and secondly because of the risk that publication of his name might occur whilst any short period of notice given to the defendants to respond to his initial papers runs.

[3] A has deposed that his complaint to the Police was made in circumstances where his name and identifying details would not be reported in the media as a result. He deposes he was told that by the Police, and is now aware that in the event that charges are laid against Mr Hughes, there would be automatic suppression of his name under s 139 of the Criminal Justice Act 1985.

[4] The essential thrust of his claim is that the present circumstances of his complaint to the Police and, in the period until the Police decide whether to lay charges in relation to his complaint, the fact that he has made such complaint is a matter of private information with a reasonable expectation of respect for that privacy. Further, that publicity given to the private facts would be considered highly offensive to an objective, reasonable person. In this regard, a Memorandum of

Counsel on his behalf cites Hosking v Runting.[1]

[5] There will only be relatively narrowly confined circumstances in which an order preventing publication of an individual’s name can be justified, given the reluctance of the Courts to accede to what have been called “gagging writs”, and more positively, the importance of freedom of speech and the public interest in publication of matters that are genuinely of public interest.

[6] Here, I am persuaded on the relatively thorough analysis set out in the Memorandum of Counsel filed with the application that a case at least for a holding injunction is made out. The case for moving with urgency is obvious. Once A’s identity is published in any form, it will most likely be pointless to thereafter attempt any constraint on publication of his name in any context. Secondly, the larger element of public interest is in the fact of a complaint against a person in Mr Hughes’ former position, rather than the individual identity of the complainant. His identity is not a matter on which the public’s interest in knowing can claim urgency. If criminal charges do ensue, then publication now would render nugatory the unqualified statutory protection that A would then have from protection of his name.

[7] If, on the other hand, the Police decide not to pursue charges (and in the event that there is no application to set aside this present order made without notice before then), that circumstance would certainly warrant reconsideration of the basis for the present order.

[8] One matter of concern is that A’s proceedings have targeted just six defendants, and obvious anomalies would arise if other media organisations (or informal internet commentators), without notice of the orders being made, publish A’s name or identifying details. To minimise the prospect of that, the Memorandum of Counsel argues for an extension of the effect of the orders to “...anyone else with notice of this order”, citing an analogy with the House of Lords decision in Attorney-

General v Times Newspapers Ltd.[2] I accept that that is appropriate, but it can by no

means guarantee complete obedience.

[9] If, notwithstanding the terms in which I am making these orders, there is publication of any material extent of circulation, then that would also be a circumstance warranting reconsideration of the orders now made.

[10] I accordingly make orders as follows:

(a) prohibiting the defendants (or anyone else with notice of this order)

from publishing A’s name or particulars likely to lead to the

identification of A as the person who has laid a complaint of sexual assault against the former Member of Parliament, Darren Hughes;

(b) that the identity of A on all documents be shown only as A;

(c) that the Court file in respect of this proceeding may not be searched by any person without the leave of a Judge;

(d) that in the first instance, and until further order of the Court, service of the Statement of Claim, interlocutory application, affidavit of A and Memorandum of Counsel be confined to the solicitors and counsel for the defendants; and

(e) that the defendants are at liberty to apply to have the interlocutory orders made varied or rescinded at short notice.

Dobson J

Solicitors:

Hazelton Law, Wellington for plaintiff

[1] Hosking v Runting [2005] 1 NZLR 1 at [117].

[2] Attorney-General v Times Newspapers Ltd [1992] 1 AC 191 (HL).