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Lewis v Wilson & Horton Ltd [2000] NZCA 175; [2000] 3 NZLR 546; (2000) 18 CRNZ 55; (2000) 6 HRNZ 1 (29 August 2000)

Last Updated: 8 December 2011


PUBLICATION OF THE NAME OF THE APPELLANT OR DETAILS IDENTIFYING HIM ARE PROHIBITED UNTIL 2.15 PM ON THE DAY FOLLOWING DELIVERY OF JUDGMENT



IN THE COURT OF APPEAL OF NEW ZEALAND
CA131/00


BETWEEN
PETER BENJAMIN LEWIS


Appellant


AND
WILSON & HORTON LIMITED


First Respondent


AND
THE DISTRICT COURT AT OTAHUHU


Second Respondent


AND
THE NEW ZEALAND POLICE


Third Respondent

Hearing:
27 July 2000


Coram:
Elias CJ
Richardson P
Keith J
Blanchard J
Tipping J


Appearances:
A Ivory and M J Dyhrberg for Appellant

B D Gray and R Rasalingam for First Respondent

Judgment:
29 August 2000

JUDGMENT OF THE COURT DELIVERED BY ELIAS CJ

Table of Contents

Paragraph Number

Summary [1]
The appeal [5]
History of the proceedings [11]
The decision in the District Court [27]
Section 140 [40]
Waiver [44]
Error of Law [53]
Reasons [74]
Failure to consider the appellant’s reputation [88]
Futility of the order [93]
Discretion [96]
Rehearing [97]
Result [100]


Summary

[1] The length of this judgment should not be taken to suggest that the appeal has raised matters of complexity or difficulty. This is a case where the outcome has been inevitable. The Judge in the District Court was plainly wrong when he made an order under s140 of the Criminal Justice Act 1985 prohibiting publication of the appellant’s identity when he appeared on criminal charges. No grounds were available to the Judge which could justify departing from the important principle of open justice and the freedom to receive and impart information protected by s14 of the New Zealand Bill of Rights Act 1990. The order was accordingly made in error of law. In addition, the conduct of the proceedings in the District Court was marked by procedural irregularity in breach of the principle of open justice and a failure by the Judge to give reasons for his decision. In the circumstances the failure to give reasons for the s140 order was also an error of law.
[2] Both errors of law plainly required the s140 order to be quashed on judicial review. The absence of any grounds upon which the Judge could have made the order made it inappropriate to remit the matter for rehearing.
[3] Delay in reaching this result was occasioned because application for judicial review was not made until two months after the order was made. In the meantime the parties pursued applications in the District Court which were largely misdirected. Judicial review in the High Court was the appropriate means for Wilson & Horton as a party affected by the order to challenge its legality.
[4] It has been necessary to set out what happened in the District Court in some detail because, regrettably, the Judge did not conduct the proceedings wholly in public and did not correct that irregularity by explaining what information had been supplied to him and what he had taken into account, as would have happened if he had given reasons for his decision. It has also been necessary to deal with a number of additional issues raised in the appeal, in deference to the arguments put forward. But the reasons why the s140 order was rightly quashed by the High Court are dealt with in paragraphs [53] to [87] below.

The appeal

[5] Peter Benjamin Lewis appeals a decision of the High Court quashing an order made in the District Court prohibiting publication of his identity in any report of court proceedings. The High Court decision was made upon application for judicial review of the District Court order brought by the publishers of the New Zealand Herald, Wilson & Horton Limited.
[6] On 7 January 2000, Judge Harvey prohibited publication of Mr Lewis’s identity under s140 of the Criminal Justice Act in any report of the court proceedings on that day when Mr Lewis was discharged without conviction having pleaded guilty to three charges of importing drugs. The charges, laid under the Misuse of Drugs Act 1975, involved cannabis plant and cannabis resin (classified under the Act as Class C and Class B drugs respectively) found on search of the appellant when he arrived at Auckland airport and on subsequent search under search warrant of his vessel in Auckland harbour. The cannabis plant found in the appellant’s possession at Auckland airport weighed 33 grams. Cannabis plant found on the appellant’s vessel weighed 47 grams. The cannabis resin found on the vessel weighed 56 grams. The quantity in respect of each charge was sufficient to raise the presumption of dealing under s6 of the Misuse of Drugs Act 1975. It was however accepted by the police that the cannabis was for the appellant’s own use and he was dealt with on that basis.
[7] A Full Court of the High Court granted Wilson and Horton’s application for judicial review and quashed the s140 order. The Court held in its judgment of 27 June 2000 that the decision to prohibit publication of the name of the appellant or details which might identify him was reached in error of law in two respects:
[8] The High Court did not accept a contention on behalf of Mr Lewis that Wilson & Horton lacked standing to apply for judicial review. Nor did it accept submissions on behalf of Wilson & Horton that the order was futile given the limited effect of s140 orders (which do not apply to private disclosure and which have no extra-territorial effect) and the fact that Mr Lewis is domiciled in the United States. The futility of the order was said to be demonstrated by subsequent overseas and internet publication of the name of the appellant.
[9] The appellant contends that the High Court decision is erroneous in five main respects:
[10] Wilson & Horton supports the judgment in the High Court but argues in addition that the s140 order should have been quashed for futility arising out of the internet and United States media publication of the appellant’s name. The High Court is said to have erred in considering that to accede to the futility argument would be to condone breach of court orders because:

History of the proceedings

[11] The appellant, Mr Lewis, lives in the United States but has a daughter and grandchildren living in New Zealand. He pleaded guilty on 6 January 2000 in the District Court at Otahuhu to two charges of importation of a class C drug (cannabis plant), and one charge of importation of a class B drug (cannabis resin). Before pleas were entered in open court, counsel for the appellant and the police prosecutor saw Judge Harvey in chambers, written submissions were then supplied to the Judge on behalf of the appellant. Later, after the pleas had been taken in open court, the Judge remanded the appellant on bail for sentencing on 7 January. He suggested that in the interim the appellant might consider a donation to charity. That possibility had earlier been raised with the Judge in chambers by counsel. The appellant’s willingness to make a sizeable donation to charity had already been discussed between counsel and the police prosecutor.
[12] On 7 January, after Judge Harvey had been advised that a donation amounting to NZ$53,000 had been made by the appellant to a drug rehabilitation charity, the appellant was discharged without conviction under s19 of the Criminal Justice Act 1985 and the order prohibiting publication of his name was made under s140 of the Criminal Justice Act 1985. The orders under s19 and s140 were not opposed by the police prosecutor. The Judge was, however, handed a note from New Zealand Customs expressing the view of the Department that a s19 discharge should not be granted for reasons of “fairness and consistency”, to avoid any perception that those arriving in New Zealand on “super yachts” were being treated differently from others because of their “status”. The decision of the District Court is referred to in more detail in paragraphs [27] to [39] below.
[13] On 7 January Wilson & Horton made application in the Otahuhu District Court for discharge or review of the order prohibiting publication of the appellant’s name. Thereafter the matter became complicated by procedural wrangling which may be seen in retrospect to have been to little purpose. The effect was to delay High Court consideration of the correctness of the order prohibiting publication of the name of the appellant for some months. A prompt application for judicial review to the High Court by Wilson & Horton would have saved much time and cost.
[14] Instead, Wilson & Horton continued with the application for discharge of the s140 order in the District Court. The appellant opposed the standing of Wilson & Horton to make such application. The standing point was decided in favour of Wilson & Horton by another District Court Judge on 13 January. The standing judgment of 13 January was appealed to the High Court by appeal lodged on 19 January. On 21 January the appeal was dismissed in the High Court after the appellant lodged notice of abandonment.
[15] In the meantime, Wilson & Horton had filed an application in the District Court at Otahuhu for an order that the Court file be released for inspection and copying. The appellant then applied for stay of this application. At the same time he applied for stay of the application by Wilson & Horton for discharge of the s140 order. After a defended hearing, Judge Harvey on 17 January ordered that the written submissions put before the Court on behalf of the appellant on 6 January be released to Wilson & Horton, on terms which limited their use to counsel for the purposes of the application for discharge of the s140 order. The Judge also declined to stay the application for discharge of the name suppression order and set the application down for hearing. This decision was immediately appealed by the appellant to the High Court by notice of appeal lodged the same day. On 20 January the High Court dismissed the appeal from the District Court judgment of 17 January. The application for discharge of the name suppression order was therefore able to proceed.
[16] The opposed application for discharge of the name suppression order was heard on 27 January. In a reserved decision of 8 February Judge Harvey held that he had no jurisdiction to discharge or review his earlier order made under s140. This decision is the subject of an appeal lodged by Wilson & Horton on 15 February in the High Court. The appeal has been adjourned pending determination of the present proceedings.
[17] On 10 February Wilson & Horton filed an application in the District Court at Otahuhu for discharge of the conditions attached to the release to counsel of the written submissions on behalf of the appellant submitted to the Court on 6 January. This application was resolved by consent order lifting the restrictions in respect of a copy of the submissions from which references which would identify the appellant had been deleted.
[18] On 20 March Wilson & Horton began the proceedings the subject of the present appeal. It applied by way of judicial review to the High Court challenging both the 7 January s140 order prohibiting publication of the appellant’s name and the 8 February determination that the Judge lacked jurisdiction to discharge or review the s140 order. By consent, the High Court ordered that the application for review of the 7 January order be heard before the application for review of the 8 February decision that the District Court lacked jurisdiction to discharge the s140 order and the appeal against that determination. The present appeal concerns only the application for judicial review of the 7 January s140 order.
[19] Six grounds of review were pleaded in respect of the decision. The first claimed mistake of material fact as to the appellant’s reputation in the United States and failure to take account of the actual reputation of the appellant as a user of marijuana and supporter of marijuana decriminalisation. The second and third grounds of review claimed mistake of fact by the District Court Judge as to the consequences for the appellant in circumstances where the appellant’s name had been published in overseas newspapers and on the internet and such publication had been likely throughout. The fourth ground of review claimed that the Judge had made an error of law in misapplying or misunderstanding the principles governing prohibition on publication of names; such principles required exceptional circumstances justifying the restriction notwithstanding “the principles of freedom of speech, open judicial proceedings, the right of media to report judicial proceedings and the principle of equality before the law”. As a fifth ground of review Wilson & Horton claimed that the Judge erred in law in according “inappropriate weight” to the appellant’s donation to charity. Finally, it was claimed as a sixth ground of review that only the reputation of the appellant in New Zealand was relevant to the grant of a s140 order and that he had no reputation in New Zealand deserving protection.
[20] By his statement of defence, the appellant admitted that he is a supporter of the legalisation of the medical use of marijuana but denied that his use of drugs was “in the public domain in his domicile or elsewhere, or was known to professional and charitable organisations with which he was associated”. In addition to denials that the s140 order was made in error, the appellant challenged Wilson & Horton’s right to relief on the grounds that it had failed to take the opportunity to be heard at the hearing of the s140 application and upon the grounds that its conduct since was such that it should be denied relief in the discretion of the Court.
[21] The application for judicial review of the 7 January order was heard in the High Court by a Full Court. In its judgment of 27 June, the Court accepted that Wilson & Horton had standing to seek judicial review and was not precluded from obtaining relief because its reporter present in Court had not sought to be heard on the non-publication order.
[22] The Court held that the District Court Judge had erred in law in two respects:
[23] The second error identified refers to the material put forward in the judicial review proceedings (and not made known to Judge Harvey) as to the reputation of the appellant as a user of cannabis and supporter of cannabis decriminalisation in his home country.
[24] The High Court rejected a contention by Wilson & Horton that the name suppression order should be quashed on the grounds of subsequent publication of the appellant’s name overseas and through the internet. It held that to quash the order on those grounds would be to condone the breach of the order by which publication occurred and would be contrary to public policy.
[25] The High Court quashed the order made in the District Court. It declined to remit the application under s140 of the Criminal Justice Act 1985 to the District Court Judge for rehearing on the basis that, with the information available to the High Court, it was able to decide that publication of the appellant’s name should not be prohibited. There was no logical basis for remission to the District Court, as the appellant’s counsel had urged should follow. Such remission would incur unnecessary expense and further delay. Costs were reserved, with an indication that the appellant would be ordered to pay costs to Wilson & Horton if the parties were unable to agree.
[26] Notice of motion on appeal from the decision of the High Court was filed on 3 July. On 7 July Wilson & Horton gave notice of cross appeal. The points on appeal and the grounds of the cross-appeal have been summarised at paragraphs [9] and [10] above, and need not be repeated.

The decision in the District Court

[27] The transcript of what took place in Court on 6 January and 7 January was in evidence in the High Court. It is set out in full in paragraphs [35] and [38] below. But the record was acknowledged to be an incomplete account of what took place and the Judge’s reasons. It was supplemented by a memorandum to the High Court by Judge Harvey indicating that he had turned his mind to questions of extra-territoriality and the utility of the s140 order. The Judge’s reasons for his decision on the s140 order were also enlarged upon by him in the subsequent judgment of 17 January on the application by Wilson & Horton for access to the Court file. An affidavit by the Registrar conducting the Otahuhu Court on 6 January and 7 January was also before the High Court. Further detail as to what transpired was given to the High Court by counsel and a transcript of the information given was available in the present appeal.
[28] In his memorandum dated 27 April supplied to the High Court, Judge Harvey advised that before Court started on 6 January, when the matter was first called and before a plea was entered, he had been seen in Chambers by the Police prosecutor and counsel for the appellant. Counsel for the appellant told the High Court that the chambers interview had been requested by the Police prosecutor who “wanted to make the position of the Police clear before we went back into open Court”, given “the unusual circumstances of the case, namely importation, request for s19 and application for name suppression”. At the chambers hearing, Judge Harvey had before him lengthy written submissions on behalf of the appellant which had been faxed through to the Court earlier. He knew that counsel was seeking both a discharge without conviction under s19 and an order forbidding publication of the appellant’s name under s140.
[29] From material placed before the High Court as to the sequence of events, it is clear that the written material provided was supplemented by oral submission or discussion. That is confirmed by Judge Harvey in his later judgment of 17 January on the application by Wilson & Horton to have access to the Court file as well as by his memorandum to the High Court of 27 April. No record of the discussions in Chambers was made and the Judge himself did not keep a note of them. As appears from the Judge’s memorandum to the High Court, however, there was discussion in Chambers about the fact that the suppression order was sought “principally to prevent publication of the defendant’s name overseas”. The Judge says in the memorandum:
[30] Ms Dyhrberg, counsel for Mr Lewis, told the High Court that in addition to the matters canvassed in her written submissions, she advised the Judge in Chambers that her client was prepared to make a donation of approximately $50,000 to a drug rehabilitation charity, a matter she had already discussed with the Police. She also advised the Judge that there was a risk, if the appellant were convicted and the fact publicised, that he would have to be removed from boards to which he belonged because of possible adverse consequences for the stockholders. If his income were affected in that way, it might affect the appellant’s capacity to continue the substantial charitable donations referred to in the written submissions. Neither of these matters had been raised in the written submissions.
[31] In his judgment of 17 January, Judge Harvey confirmed that “there were discussions in Chambers regarding this matter which were not recorded and a note of which was not kept”:
[32] A difficulty with treating the submissions as encapsulating the Judge’s reasons through direct adoption is that the written submissions do not refer to the donation or the other additional matters discussed in Chambers as acknowledged by the Judge (as to the protection of the appellant’s reputation in the United States) or counsel (as to the risk to the appellant’s board membership and income). Nor is it known what was made by the Judge of the submission received from New Zealand Customs.
[33] The written submissions covered both the application for s19 discharge without conviction and the s140 name suppression. Most of the factors of hardship to the appellant put forward in the submissions related to the discharge without conviction. They were answered by the decision of the Judge to exercise his discretion under s19 to discharge the appellant without conviction.
[34] In the hearing of the present appeal, counsel for the appellant acknowledged that only four submissions not answered by the discharge without conviction supported the s140 order prohibiting disclosure of the appellant’s identity. They were:
[35] When the matter was called in Court on 6 January, guilty pleas were formally entered to the charges. A transcript records what then took place. Judge Harvey indicated that he had read the submissions. Counsel for the appellant suggested that the summary of facts did not need to be read out. The Judge expressed the view that the matter involved personal use only:
[36] The handwritten memorandum from the New Zealand Customs Service opposed the s19 discharge on the basis of the need for even-handed application of the law. It expressed concern about possible perceptions that those entering the country on “super yachts” were being more favourably treated by New Zealand Customs. That perception was refuted in the memorandum which declared that “the Customs and Excise Act 1996 applies equally to everyone regardless of their status”.
[37] As is apparent from the transcript of what was said in Court, the written and oral information with which the Judge had been supplied by counsel was not addressed by counsel in open court and was not referred to by the Judge.
[38] The remarks made by the District Court Judge on 7 January in open court in discharging the appellant under s19 and in making the order for non-publication of his name under s140 were recorded in full and were preceded by counsel handing to the Judge a receipt for the charitable donation and referred to in the exchange between Judge and counsel at the outset:
[39] There was no reporter in Court on 6 January. It was not in contention, and was the subject of evidence in the High Court, that a reporter from the New Zealand Herald had made inquiries of the Registrar on the morning of 7 January about a defendant whose name did not appear on the Court list for the day. It is accepted that the person the reporter was making the inquiries about was the appellant. The reporter was later in Court when the matter was called and the orders were made. She did not seek to intervene in the hearing to ask to be heard on the name suppression application.

Section 140

[40] Section 140 of the Criminal Justice Act 1985 empowers the Court to prohibit publication of names or particulars likely to lead to the identification of any person connected with the proceedings in “any report or account relating to any proceedings in respect of an offence”. The power is a discretionary one. Where a Police programme of diversion has been completed and the Registrar has granted leave to a Police informant to withdraw the information under s36(1A) of the Summary Proceedings Act 1957, the Registrar, with the consent of the police, may make a permanent order under s140: s36(1B). In all other cases, where disposition of the proceedings is a matter of judicial determination (as will be the case where the person charged is convicted, acquitted or discharged under s19 of the Criminal Justice Act 1985), s140 orders are made by the Judge. The consent of the Police to an order prohibiting publication is not a precondition of the exercise of the jurisdiction. Nor is it determinative. The decision to prohibit publication is a judicial decision which falls to be determined in accordance with law.
[41] In R v Liddell [1995] 1 NZLR 538, 546-7 this Court declined to lay down any code to govern the exercise of a discretion conferred by Parliament in terms which are unfettered by any legislative prescription. But it recognised that the starting point must always be the importance of freedom of speech recognised by s14 of the New Zealand Bill of Rights Act 1990, the importance of open judicial proceedings, and the right of the media to report court proceedings:
[42] Factors it is usual to take into account in deciding whether the prima facie presumption should be displaced in the case include:
[43] The Judge must identify and weigh the interests, public and private, which are relevant in the particular case. It will be necessary to confront the principle of open justice and on what basis it should yield. And since the Judge is required by s3 to apply the New Zealand Bill of Rights Act 1990, it will be necessary for the Judge to consider whether in the circumstances the order prohibiting publication under s140 is a reasonable limitation upon the s14 right to receive and impart information such as can be demonstrably justified in a free and democratic society (the test provided by s5). Given the congruence of these important considerations, the balance must come down clearly in favour of suppression if the prima facie presumption in favour of open reporting is to be overcome.

Waiver

[44] The appellant claimed in his statement of defence that Wilson & Horton had failed to take the opportunity to be heard on the s140 order on 7 January. Such opportunity was said to arise through the presence in Court of the reporter from the New Zealand Herald.
[45] The High Court accepted that the news media have standing to be heard on applications for suppression orders and to apply for discharge, rescission or variation of them. In this, the Court relied upon two decisions of the High Court in R v L [1994] 3 NZLR 568 and A v B (High Court Auckland, CP 310/96, 11 May 1999, Young J). The appellant’s argument that Wilson & Horton had lost its standing to contest the matter by not raising the issue when the application was dealt with was not accepted by the High Court. It found counsel’s argument in seeking to distinguish R v L and A v B “unconvincing both in reality and in principle”. The news media is “watchdog for the public” in protecting the rights recognised by s14 of the New Zealand Bill of Rights Act 1990 “and accordingly has standing to bring proceedings to judicially review such a decision”.
[46] In this Court, Mr Ivory for the appellant submitted that the High Court had not dealt adequately with the argument. It was not suggested that the news media do not have standing to challenge a s140 order by judicial review. It was also accepted that the news media have standing to be heard on an application for the s140 order itself. Mr Ivory accepted that where the news media are not present in Court they are not precluded from seeking judicial review of an order prohibiting publication. He argued, however, that where the news media are present when a s140 application is sought, they have an opportunity to seek to be heard on an application. If they do not avail themselves of it, they have waived their standing to seek judicial review. In cases where they have an opportunity to be heard, there is an obligation to raise a request to be heard before the application is determined.
[47] Mr Ivory accepted that in most cases it will be unrealistic to expect that a reporter present in Court will be in a position to argue the media interest in publication on the spot. It will usually be the case that the application will have to be adjourned after intervention from the reporter.
[48] Mr Ivory was not able to cite any authority in support of his submission that standing is waived if a reporter who is present does not intervene and ask for an opportunity to be heard. In cases of bias or other breach of natural justice, the right to seek judicial review may be lost by waiver if the person seeking judicial review participated in the process and took no objection at the time, at least where the facts and the right to object are known (see Hoffmann-La Roche v Secretary of State for Trade [1975] AC 295, 320 per Lord Denning MR; R v Nailsworth Licensing Justices ex parte Bird [1953] 1 WLR 1046; Thomas v University of Bradford (No. 2) [1992] 1 All ER 964). As these authorities indicate, such waiver (although often incorporated into the substantive rules relating to bias) is properly seen as a consideration relevant to the discretion to grant relief, rather than as vitiating standing.
[49] The conduct of an applicant is relevant to the discretion to grant a remedy. Relevant conduct includes not only failure to object in a timely way at the hearing where the facts are known (R v Nailsworth Licensing Justices, ex parte Bird) but also delay in the bringing and the conduct of judicial review proceedings (R v Aston University Senate, ex parte Roffey [1969] 2 QB 538).
[50] We are unable to accept that the conduct of Wilson & Horton is such as to disentitle it to seek a remedy, if the s140 decision is shown to have been made by error for which judicial review is otherwise available. The reporter was not a participant in the process. While in some circumstances it may be appropriate for the media to be heard at the time the Court is considering an order to prohibit publication, the occasions when such opportunity is a realistic one are likely to be rare. They will generally be cases where the media have sufficient warning of the matter to be in a position to arrange representation and to give notice that they wish to be heard. That will not typically be the case when an application is made in the summary jurisdiction.
[51] The orderly conduct of a busy list court would be unacceptably disrupted if court reporters felt obliged to intervene and ask to be heard in order to preserve the opportunity to seek judicial review. It is unrealistic to suggest, as the appellant does, that “the media have a responsibility to ensure their reporters are both capable of seeking the right to be heard, and trained in the appropriate way of seeking that right”. The acknowledgement made by counsel that, where objection is taken by a reporter, an adjournment would have to be sought to enable a representative or counsel to be heard demonstrates that the suggestion is unworkable. It would mean that adjournments would have to be sought against the chance that it may be thought necessary to apply for judicial review. That need may not arise if, on hearing the application, no s140 order is made or if an order is made on grounds which the media accept as sufficient. A request to be heard before a s140 order is determined will usually be premature. In most cases the Police or prosecuting counsel will sufficiently represent the public interest in publication. A decision to seek judicial review is a decision which can only be taken responsibly after consideration of the decision and advice. In most cases it will be the appropriate procedure for someone affected who is not a party to the s140 application. The right to bring a challenge by way of judicial review is not subject to the precondition that the media seeking review must first have participated in the determination.
[52] The High Court was accordingly correct to hold that Wilson & Horton had standing to bring the judicial review proceedings. Its right to do so was not waived.

Error of Law

[53] The statement of claim pleaded that the District Court Judge had granted name suppression in reliance on “the facts advanced by [Mr Lewis] in support of the name suppression application”. Those facts, it was claimed, did not constitute circumstances in which the Judge could lawfully have made the order prohibiting publication.
[54] The Full Court did not proceed on the basis that the District Court Judge had adopted the submissions on behalf of the appellant as his reasons. The Court was of the view that the Judge “unfortunately . . . gave no reasons for nor made any comment, on his decision to prohibit publication of L’s name”. That approach was in our view correct. The written submissions were part only of the material before the Judge. It is impossible to know from the Judge’s remarks, set out in paragraphs [35] and [38], even as later explained in his memorandum and the 17 January judgment, what factors he considered relevant to the decision to prohibit publication and why those he may have identified made it appropriate to grant the order, notwithstanding the presumption in favour of open justice and the right to receive and impart information recognised by s14 of the New Zealand Bill of Rights Act 1990. There are no reasons which provide any assurance that the Judge addressed these considerations, the concerns of New Zealand Customs, and the public and media interest in publication. Nor is it possible to understand whether in granting the s140 order the Judge took into account the donation made by the appellant.
[55] The High Court indicated that, had the challenge been by way of appeal, it was likely that it would have been successful because the failure to give reasons was an error:
[56] Later, the Court repeated its view that reasons should have been given:
[57] It is not clear why the Court, having expressed the view that the failure to give reasons was an error of law which could have been corrected on appeal, did not feel able to grant judicial review on that basis. Instead, it held that, in the absence of any indication that Judge Harvey had given consideration to s14 of the New Zealand Bill of Rights Act 1990, it could only be inferred that he had failed to consider it, in error of law.
[58] The appellant submitted that the High Court was wrong to infer that Judge Harvey had failed to consider s14 of the New Zealand Bill of Rights Act 1990 the Judge was not required to give reasons and it was not error of law for him to fail to do so; Judge Harvey was an experienced Judge, sitting in a Court with a heavy criminal workload and he would have been well aware of the decision in R v Liddell and the need to take into account s14 of the New Zealand Bill of Rights Act 1990. Although it was not put as starkly in argument, the force of the submission is that to infer that the Judge had failed to take s14 into account from the absence of reasons is to require the Judge always to give reasons for a s140 order. Such result is said to be contrary to authority.
[59] Mr Gray, for Wilson & Horton, initially submitted that the High Court had not quashed the District Court decision for failure to give reasons. Instead, he suggested that the High Court had correctly treated the information supplied to the District Court on behalf of the appellant “as if it were the reasons for the decision”. It was necessary for the High Court to identify the reasons for the decision “so that the Court can assess whether there is an error of law by reason of misunderstanding of the law, failure to consider a relevant fact or consideration of an irrelevant fact”. Since the information supplied to the Court on behalf of the appellant did not refer to s14 of the New Zealand Bill of Rights Act, the Court was right to infer failure to take it into account.
[60] In the alternative, as developed in oral argument, Mr Gray contended that the failure to give reasons was an error of law. The point had not been pleaded. Counsel for the appellant was however content to deal with the point despite the lack of pleadings.
[61] As indicated in paragraph [32] above, it is possible to construct the Judge’s reasons from the submissions supplied to him. The Full Court did not purport to do so. Instead, the judgment accepts that, since the Police did not provide any opposing information, “it is implicit that the Judge reached his decision on the basis of the information given to him on L’s behalf”. That is not the same thing as suggesting that the information is inferred to have been adopted by the Judge as his reasons.
[62] The information supplied was the only factual basis upon which the Judge could have made his decision. In the exercise of the supervisory jurisdiction to review, the High Court can determine whether it was open to the Judge, properly directing himself on the law, to have ordered suppression of the appellant’s identity on the basis of the information before him. That was the way in which the fourth ground of review was put in the statement of claim.
[63] Where the facts cannot support a decision, judicial review is available on the partially overlapping grounds of error of law (on the basis that it must be inferred that the decision-maker has misconceived the law) or unreasonableness. Why error of law is to be inferred was described by Lord Radcliffe in Edwards v Bairstow [1955] UKHL 3; [1956] AC 14, 36:
[64] The ground of unreasonableness restated by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 228-229 may be viewed as coinciding with the second category of error of law recognised in Edwards v Bairstow, although it is usually treated as a distinct ground.
[65] The High Court did not approach matters in that way. It inferred failure to consider s14 of the New Zealand Bill of Rights Act 1990 from the absence of reasons given by the Judge. Such an approach suggests that absence of reasons will always be fatal, at least where there are considerations which it is mandatory for the decision-maker to take into account. It was not necessary for the Court to put matters on that basis. Absence of reasons was not pleaded as a ground of review. The pleaded ground was that upon the facts the Judge could not have granted name suppression if he had properly applied the relevant law and that in such circumstances, error of law could and should be inferred.
[66] On the material before him it was not open to the District Court Judge, correctly applying the law, to make the order prohibiting publication of the appellant’s identity. As indicated in paragraph [34] above, counsel for the appellant accepted that only four considerations put forward to the District Court Judge were not answered by the s19 discharge and so were available to be relied upon in considering the name suppression order. Neither separately nor in combination were they considerations which were capable of overcoming the presumptions in favour of open justice and the freedom to exchange information.
[67] The appellant’s lack of previous criminal convictions and acceptance of responsibility for his actions are commonplace factors. They will often be present in a name suppression application. Indeed in the present case the appellant’s willingness to explain himself and accept responsibility may have been inevitable in circumstances where he was found in possession of drugs in quantities sufficient to raise the statutory presumption of dealing.
[68] The standing of the appellant as “an extraordinarily successful businessman, community leader and philanthropist” was not grounds for suppressing his name in the absence of evidence of special harm to him through publicity. No harm to the appellant was suggested beyond the submission that his standing would make media interest in him “undue”. That is tantamount to a submission that successful or prominent members of the community should receive name suppression because there may be media interest in such people. The Court cannot enter into assessment of whether media or public interest is appropriate or “undue”. The right to receive and impart information is not limited in the present context according to qualitative and subjective standards adopted by the Judge. It is a right to receive information “of any kind in any form”. In cases where some real harm is identified, it may be necessary for the Judge to decide whether the harm which would be caused is disproportionate to the public interest in open justice and the freedom to receive information “of any kind”. In such cases it may be necessary for the Judge to weigh the public interest in receiving the particular information. But in the absence of identified harm from the publicity which clearly extends beyond what is normal in such cases, the presumption of public entitlement to the information prevails. Any other approach risks creating a privilege for those who are prominent which is not available to others in the community and imposing censorship on information according to the Court’s perception of its value.
[69] The suggestion that charities and businesses with which the appellant is associated might suffer adverse consequences from publicity about his appearance on criminal charges was unsubstantiated and wholly speculative. For the most part the charities to which the appellant has been a generous benefactor are substantial ones. Those identified in the written submissions before the District Court are large museums and universities of international standing. The “philanthropic causes” supported by the appellant were identified as including a home for the aged, and educational institutions. The involvement of the appellant in these organisations appears from the material supplied to the Court to have been mainly as a donor. No facts are indicated in the submissions from which it is possible to identify any real risk of detriment to the organisations identified. Indeed, the submissions to the District Court do not suggest that detriment to them is likely. All that was put in front of the Judge was the tentative submission that:
[70] In addition, in the unrecorded oral submissions made to the Judge in Chambers (and related to the High Court by Ms Dyhrberg), it was suggested that the other board members of the company of which Mr Lewis is currently a 15% shareholder and the Chief Executive Officer might feel it necessary to remove him from his position, for the good of the stockholders. If so, it was not suggested that the appellant would suffer from loss of the job. (Ms Dyhrberg acknowledged him to be a man of some considerable wealth and said he was phasing out of the Chief Executive’s role in any event). Rather, counsel advised the Judge, somewhat vaguely, that if the appellant no longer had that particular income it might affect his ability to make tax effective charitable donations, to the detriment of the charities he has supported in the past.
[71] This speculation as to detriment to the charities of which the appellant is a benefactor was inherently implausible. It provided no basis upon which it could be concluded that the risk of damage outweighed the interests of freedom of information and the principle of open justice.
[72] The fourth ground identified by Mr Ivory from the submissions made to the District Court as justifying name suppression was the risk that the charge of “importing” would be taken by the media or the public to suggest that the appellant had been trafficking in drugs. It is impossible to accept this contention. The charge of importing carries no such meaning. It is unlikely in the extreme that anyone would consider that an individual as wealthy as the appellant would smuggle relatively small quantities of drugs for gain. More importantly, the best protection against speculation is the freedom to receive and impart information recognised by s14 of the New Zealand Bill of Rights Act 1990. A full report of what transpired including the fact that Mr Lewis had been discharged without conviction would be a complete answer to baseless rumour and conjecture.
[73] The offending was not trivial. The quantities of drugs involved and the fact that the importation was achieved on two occasions (as the presence of drugs on the appellant’s vessel shows) puts the offending out of that category. Singly or in combination, the factors put forward could not have justified the Judge in making the order prohibiting publication of the appellant’s name. They are not capable of displacing the presumption in favour of freedom of speech and the principle of open justice affirmed in R v Liddell. It can only be inferred that the Judge misdirected himself and that the decision was taken in error of law. The decision of the District Court should have been quashed in the High Court on these grounds.

Reasons

[74] The Full Court considered that the case was one where the Judge was obliged to give reasons. It did not grant judicial review on that basis, however, although it indicated that if the matter had come before it on appeal it might well have granted the appeal on the grounds of lack of reasons alone. It is not clear why the Full Court drew the distinction.
[75] There is no invariable rule established by New Zealand case law that courts must give reasons for their decisions. That is a proposition which may seem surprising. Many may think that it is the function of professional Judges to give reasons for their decisions. And in recent years the general proposition has been steadily eroded in the United Kingdom and Australia, although in Canada the traditional view seems still to be adhered to (see R v Harrow Crown Court: ex parte Dave [1994] 1 WLR 98; Eagil Trust Co Ltd v Pigott-Brown [1985] 3 All ER 119; Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 (CA);. Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, 386 per Mahoney JA; Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, 667 per Gibbs CJ; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; R v Barrett [1995] 1 SCR 752, 753; R v R [1996] 2 SCR 291, 336).
[76] There are three main reasons why the provision by reasons by Judges is desirable. Others are identified in Singh v Department of Labour (1999) NZAR 258, 262-3. Most importantly, the provision of reasons by a Judge is an important part of openness in the administration of justice. The principle of open justice in criminal proceedings is affirmed by s138(1) of the Criminal Justice Act 1985 and s25(a) of the New Zealand Bill of Rights Act 1990, but it is far older in observance and extends beyond criminal proceedings (although it is of particular importance there). It yields only where the application of the general rule in the particular circumstances of the case would frustrate the interests of justice, and then only to the extent necessary: (Broadcasting Corporation v Attorney-General [1982] 1 NZLR 120, 123 per Woodhouse P; Attorney-General v Leveller Magazine Ltd [1979] AC 440, 450 per Lord Diplock; Police v O’Connor [1992] 1 NZLR 87, 95-96 per Thomas J). There were no special circumstances in the present case which required modification of the principle of open justice.
[77] Moreover, the lack of reasons in the present case failed to correct irregularities in the conduct of the hearing. It was understandable that the Judge should have acceded to the request from the police prosecutor to see counsel for the appellant and the prosecutor in Chambers. But it was a course which carried special risks for the principle of open justice. It made it incumbent on the Judge to take care in communicating his eventual decision. In the event, the interests of open justice were not served. As the transcript of the proceedings indicates, the public exchanges between counsel, the police prosecutor and the Judge proceeded by allusion to the written material and what had transpired in Chambers. The case would have been largely unintelligible to anyone present in Court. It effectively proceeded on a basis understood only by those who had participated in the Chambers hearing.
[78] It was a breach of the principles of open justice that the submissions on disposition in a criminal case were received in private and the summary of facts was taken as read in circumstances where the Judge did not then refer to them in reasons delivered in open court. Submissions on disposition may be received in writing and on a confidential basis only in exceptional circumstances (Broadcasting Corporation v Attorney-General at 122-123 per Woodhouse P; at 127-128 per Cooke J; at 132-133, 135-136 per Richardson J). As a result of the way the matter was handled, the exercise of judicial function was effectively withheld from public scrutiny.
[79] The principle of open justice serves a wider purpose than the interests represented in the particular case. It is critical to the maintenance of public confidence in the system of justice. Without reasons, it may not be possible to understand why judicial authority has been used in a particular way. The public is excluded from decision-making in the courts. Judicial accountability, which is maintained primarily through the requirement that justice be administered in public, is undermined.
[80] The second main reason why it said Judges must give reasons is that failure to do so means that the lawfulness of what is done cannot be assessed by a court exercising supervisory jurisdiction. Those who exercise power must keep within the limits imposed by law. They must address the right questions and they must correctly apply the law. The assurance that they will do so is provided by the supervisory and appellate courts. It is fundamental to the rule of law. The supervisory jurisdiction is the means by which those affected by judicial orders, but who are not parties to the determination and who have no rights of appeal or rehearing, obtain redress. Their right to seek such review is affirmed by s27 of the New Zealand Bill of Rights 1990. It is important that sufficient reasons are given to enable someone affected to know why the decision was made and to be able to be satisfied that it was lawful. Without such obligation, the right to seek judicial review of a determination will in many cases be undermined.
[81] The reasons may be abbreviated. In some cases they will be evident without express reference. What is necessary, and why it is necessary was described in relation to the Civil Service Appeal Board (a body which carried out a judicial function) by Lord Donaldson MR in R v Civil Service Appeal Board, ex parte Cunningham [1991] 4 All ER 310, 319:
[82] The third main basis for giving reasons is that they provide a discipline for the Judge which is the best protection against wrong or arbitrary decisions and inconsistent delivery of justice. In the present case it is hard to believe that the Judge would have granted the order if he had formally marshalled his reasons for doing so.
[83] In New Zealand, the leading case on provision of reasons is R v Awatere [1982] 1 NZLR 644, 648-649. The Court declined to lay down “an inflexible rule of universal application”, while recognising that “it must always be good judicial practice to provide a reasoned decision”. The same view was taken by the majority in a differently constituted Court in R v MacPherson [1982] 1 NZLR 650. Somers J was prepared to go further. He would have held in that case that it was implicit in the right of appeal conferred by the Summary Proceedings Act 1957 that the Judge was under a duty to make “such findings or express such reasons or conclusions as in the particular circumstances are necessary to render the right of appeal effective” (R v MacPherson at 652). Such reasons, he thought, would not need to be elaborate and would add little to what is usually done in New Zealand courts.
[84] R v Awatere was considered and applied in R v Jefferies [1999] 3 NZLR 211. That case confirmed that while the giving of sufficient reasons for decision is always highly desirable, it is not an inflexible requirement.
[85] Whether it is time to say that as a general rule Judges must give reasons, is a matter this court would wish to consider at an early opportunity. In the present case however the point arose during argument and was not fully canvassed. It is not necessary to consider whether R v Awatere should be revisited. to dispose of the present case.
[86] In the present case the requirements of open justice in criminal proceedings, the right to impart and receive information recognised by s14 of the New Zealand Bill of Rights Act and the need to ensure that those whose rights were affected by the order had an effective opportunity to obtain judicial review, all made it incumbent upon the Judge to give reasons for the order prohibiting publication of the appellant’s identity. The High Court was right to say that the Judge was required to give reasons. The failure to give reasons in this case was an error of law.
[87] We differ from the High Court as to the consequences. The error was not one which could be corrected only on appeal; as error of law, the failure to give reasons was a proper and distinct ground of judicial review. It was a sufficient ground, irrespective of whether it was not open to the Judge to grant the s140 application (as we have accepted to be the case) and without inferring failure to apply s14 of the New Zealand Bill of Rights Act 1990 (as the High Court preferred to find). On this ground too the decision should have been set aside. In the normal course it would have been remitted to the District Court for determination in accordance with law. The conclusion already reached that the order was not open to the Judge on the material before him, makes such step unnecessary.

Failure to consider the appellant’s reputation

[88] In the judgment of the High Court this second ground upon which the Court granted judicial review was expressed as a failure to take into account a relevant consideration, namely the appellant’s reputation as a user of cannabis and a supporter of cannabis law reform. It was not suggested by the Full Court that the error was the fault of the District Court Judge. He had not been given the information by the appellant.
[89] The ground was not pleaded by Wilson & Horton as failure to take account of a relevant consideration. Rather the Judge was said to have been led into material mistake of fact because he did not know the true reputation of the appellant (substantiated by United States magazine and newspaper clippings and material obtained through the internet).
[90] We agree with the submission on the part of the appellant that the High Court was in error in treating the new material put forward to it as establishing that the Judge failed to address a relevant consideration. The Judge’s remarks on 6 January indicated that he had turned his mind to the reputation of the appellant, the relevant consideration in issue. The reputation of the appellant was also the main burden of the written submissions he received.
[91] What the material put forward by Wilson & Horton in the High Court was directed to was the submission that the Judge proceeded in error of fact, because the information he had been given did not disclose the appellant’s true reputation in the United States as a user of cannabis and prominent supporter of its decriminalisation. The appellant had acknowledged being a user of cannabis and from his remarks the Judge appears to have appreciated that the appellant was in favour of its decriminalisation. But it is contended on behalf of Wilson & Horton that the appellant’s public reputation, rather than his acknowledged behaviour and attitudes, was a fact material to the apparent decision that publication would harm him and the charities associated with him.
[92] Whatever the scope of mistake of fact as a ground of judicial review (as to which see Daganayasi v Minister of Immigration [1980] 2 NZLR 130, NZ Fishing Industry Association v Minister of Agriculture and Fisheries [1988] 1 NZLR 544), the additional facts put forward in the High Court do not establish reviewable error. The approach adopted in the High Court would have the effect of permitting any conclusion of fact to be reopened on application for judicial review. The supervisory jurisdiction does not go so far, except where the decision of fact is a condition precedent to the exercise of power or where the error of fact results in a decision which is unreasonable. In such cases, the decision-making process will have miscarried. That was not the case here, even accepting the Judge to have been under the wrong impression of the true facts. Given however the conclusions reached on the reasonableness of the decision, it is unnecessary to consider the point in more detail.

Futility of the order

[93] We do not accept the contention on behalf of Wilson & Horton that the order as made was futile because it was inevitable that the identity of the appellant would be publicised. There was no inevitability about the escape of information simply because the appellant was resident in another jurisdiction. The order related to disclosure in the course of a report about the New Zealand proceedings. Section 140 is to be treated as effective to prevent that occurring where an order is made.
[94] Where information as to the identity of someone appearing before the Court is already in the public domain, it will not generally be appropriate to grant name suppression (Attorney-General for UK v Wellington Newspapers Ltd [1988] 1 NZLR 129; Tucker v News Media Ownership Ltd [1986] 2 NZLR 716, 736 per McGechan J).
[95] In the present case there is no evidence that the fact that the appellant was appearing on charges in the Otahuhu District Court was publicly known at the time the s140 order was made. The order was not futile. Judicial review on this ground was correctly declined by the High Court.

Discretion

[96] Relief is discretionary. Delay in the bringing of judicial review proceedings may be a ground for the exercise of the discretion against relief. On behalf of the appellant it was asserted that the delay before 20 March when the judicial review proceedings were filed made it inappropriate to grant relief to Wilson & Horton. This matter was rightly not pressed at the hearing of the appeal. Given the limited information publicly available because of the way in which the application was heard and the absence of published reasons, it is not surprising that Wilson & Horton attempted to obtain release of the court file and a rehearing. As already indicated, we are of the view that the applications in the District Court were misdirected and that the appropriate procedure was to seek judicial review, but that view is expressed with the benefit of hindsight. In the circumstances it would not be right to decline relief for the delay. It was not substantial and Wilson & Horton continues to be affected by the order which prevents it publishing details of the identity of the appellant.

Rehearing

[97] Because of the conclusion we have reached that it was not open to the Judge to make the name suppression order, it is not appropriate to remit the application for rehearing. Had the successful ground of review been failure to give reasons, or failure to consider the application in accordance with law, then it would have been necessary to consider whether, in addition to the order quashing the determination, the Court should grant the remedy of directing the Judge to reconsider the application or an order in the nature of mandamus (see s4 of the Judicature Amendment Act 1972). It would be appropriate to send the matter back if the discretion to make the order can be properly exercised. It is not for the reviewing court to substitute its own discretion.
[98] The decision to send the matter back is itself a distinct discretionary remedy. As Mr Ivory properly conceded, its exercise falls to be taken in the light of the circumstances at the time the question of remedy is considered. Where a s140 order is quashed on judicial review, an order that the application be reheard will not generally be appropriate if the identity of the person has entered the public domain in the meantime. We agree with the submission on behalf of Wilson & Horton that how the information escaped (whether in breach of Court order or not) will not normally be of significance.
[99] Had it been necessary to consider whether the matter should be remitted to the District Court, the internet and overseas publication of the appellant’s identity would have made that course inappropriate.

Result

[100] The appeal is dismissed, for reasons which differ from those adopted in the High Court The order of the High Court quashing the s140 order in the District Court is confirmed. There will be no order for rehearing, with the result that there is no prohibition on publication of the appellant’s identity. Wilson & Horton are entitled to costs on the appeal which are fixed at $5,000.00, together with reasonable disbursements, including travel and accommodation expenses of counsel, to be fixed if necessary by the Registrar.

Solicitors
Wendy Galvin and Associates, Auckland, for appellant
Bell Gully, Auckland, for first respondent


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