Home | Databases | WorldLII | Search | Feedback High Court of New Zealand Decisions

Fonterra Co-Operative Group Limited v NZX Rural Limited t/a NZX Agri [2018] NZHC 346 (7 March 2018)

Last Updated: 7 March 2018

JUDGMENT OF CLARK J

(Reasons for Interim Injunction)

Pursuant to r 11.5 of the High Court Rules I direct the delivery time of this judgment is

3:30 pm on 7 March 2018

FONTERRA CO-OPERATIVE GROUP LIMITED v NZX RURAL LIMITED TRADING AS NZX AGRI [2018] NZHC 346 [7 March 2018]

Interim injunction hearing and orders

[1] On 2 March 2018 at 3:15pm I heard Fonterra’s urgent application for an interim injunction. The papers were filed that afternoon on a Pickwick basis. In this judgment I provide my reasons for granting the application and for making the orders which I made on 2 March 2018, and which are reproduced below:

To the first, second and third respondents

1. The applicant’s interlocutory application, made without notice on 2 March 2018, was determined by the Honourable Justice Clark on 2 March 2018.

2. The determination was made following a hearing held at 3:15pm on 2 March 2018. The Court heard from Daniel Kalderimis, counsel for the applicant.

3. The following orders were made:

3.1 The first respondent is restrained from using, publishing, or otherwise disseminating confidential information it has received from the second respondent.

3.2 The second respondent is restrained from breaching her duties of confidentiality to the applicant.

3.3 Any third respondent is restrained from using, publishing, or otherwise disseminating any confidential information it may have received from the second respondent.

4. The applicant is authorised to serve this order on any party (including the unnamed respondents) by email.

5. These orders remain effective until the determination of the substantive matter but any party has leave to apply to revisit any aspect of the orders on 10 days’ notice.

[2] First, I address the suppression order which I made at the outset of the hearing. Shane Cowlishaw, a journalist from Newsroom, was in attendance at the commencement of the hearing. As the matter had been set down only a few hours earlier Mr Kalderimis suggested the presence of the media in those circumstances demonstrated the level of interest in the information sought to be restrained and underscored the basis for Fonterra’s concerns. I made an order suppressing all information about the hearing other than the fact Fonterra had made an application for an interim injunction.
[3] Following an inquiry from Mr Cowlishaw on 5 March 2018 about its scope, the suppression order made at the hearing of Fonterra’s application for an interim injunction has, with Fonterra’s consent, been modified. The order is in the following terms:

All information about the hearing is suppressed except for the fact the application was made and heard on 2 March, the parties’ identities and that an interim injunction was granted. The orders made following the hearing are in the public domain and are reproduced in this judgment.

[4] The remainder of this judgment contains my reasons for granting the interim injunction. Consistent with the suppression order they are succinct.

Reasons

[5] Ms Guiney was a Director of Fonterra from 12 November 2014 until 2 November 2017. Fonterra’s claim pleads two causes of action against Ms Guiney: breach of contract and breach of confidence. Breach of confidence is pleaded also against the remaining respondents.

[6] On the basis of the material I have seen Fonterra has established there is a serious question to be tried. I accept the submission made for Fonterra: its case is not tendentious or one at the margins. I am also satisfied the balance of convenience lies in favour of granting the interim injunction. The harm that would likely result from the unauthorised disclosure of confidential information would not readily be compensable by damages.

[7] In addition to the well-established “serious question” and “balance of convenience” tests it is also necessary to assess whether the overall justice of the position supports the grant of an injunction. I expressed my concern to Mr Kalderimis about the curtailment of the respondents’ rights to freedom of expression which would be the consequence of the interim injunction. In the end, I have been influenced by three particular considerations:

(a) The Court is asked to grant an injunction which, by its interim nature, is expected to be of limited duration, indeed, only that duration necessary until determination of final orders. I indicated to counsel for
Fonterra that court time is available on 23 or 26 March to hear Fonterra’s substantive claim.

(b) Fonterra’s application may be viewed as one seeking to enforce an antecedent obligation of confidentiality that is inherent in the information sought to be reported. In this respect, the application is dissimilar to injunction applications seeking the prior restraint of publication which are held to a higher threshold because of the likely “drastic interference with freedom of speech”.¹

(c) The Courts recognise circumstances where a restriction on an individual’s freedom of expression is necessary in order to protect other values regarded as important in a democratic society. “One of those values is protecting confidential information which the action of breach of confidence is designed to achieve”.²

Result

[8] Fonterra has established there is a serious question to be tried. I am also satisfied the obligations of confidence which exist are to be maintained through the grant of an interim injunction until determination of the substantive matter. The interim orders preserve the status quo. To refuse to grant the interim injunction would, in large part, be effectively to determine Fonterra’s statement of claim. In considering overall justice the importance of protection of confidential information, in this context and for this limited period, is in the public interest. There is a greater public interest in that protection than in giving effect to a breach of confidence by permitting the publication of information gained or used in breach of that obligation of confidence.

1. TV3 Network Services Ltd v Fahey [1999] 2 NZLR 129 (CA) at 132 citing Attorney-General v British Broadcasting Corporation [1981] AC 303 at 362.

² Earthquake Commission v Krieger [2013] NZHC 3140; [2014] 2 NZLR 547 (HC) at [86].

[9] Costs are reserved.






Karen Clark J

Solicitors:

Chapman Tripp, Wellington for Applicant