A v Fairfax New Zealand Limited HC Wellington CIV-2011-485-569 [2011] NZHC 72 (29 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: 29 March 2011

_{ADDENDUM TO JUDGMENT OF DOBSON J}

[1] In issuing my judgment on the plaintiff’s interlocutory application without

notice yesterday afternoon, I omitted to acknowledge one consideration relevant to the grant of an interim injunction. That is the absence of an undertaking as to

A v FAIRFAX NEW ZEALAND LIMITED HC WN CIV-2011-485-569 [29 March 2011]

damages, and A’s acknowledgement that he is not in a position to provide an

undertaking that he could subsequently honour to any meaningful extent.

[2] The terms of High Court Rule 7.54 appear to be mandatory in that an applicant for an interlocutory injunction must file such an undertaking. The Memorandum filed in support of A’s application referred to authority acknowledging that the Court nonetheless has a discretion.[1] Quite properly, the Memorandum also acknowledged authority to the contrary effect in a decision of the same Judge, which found that the Court has no power to grant an injunction in the absence of such an undertaking.[2]

[3] Although it is only likely to be exercised in narrow circumstances, I am satisfied that the Court does have a discretion to dispense with the requirement notwithstanding the apparently mandatory terms of the rule.

[4] The Memorandum of Counsel for A argues the prospect of the media suffering significant damages is relatively remote. It is unnecessary to express any view on whether, on any application to rescind or vary these orders, the discretion would continue to be exercised in A’s favour. It is sufficient at this stage to acknowledge that the Court has jurisdiction to dispense with such an undertaking and to find that the overall merits of the case for at least a holding form of interim relief are sufficient to outweigh the concerns for the interests of the defendants arising from the absence of such an undertaking. It is a further matter that would be

_{open for argument on any application to vary or rescind the orders made.}

Solicitors:

Hazelton Law, Wellington for plaintiff

Dobson J

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[1] Knight v European Language Academy (NZ) Ltd HC Auckland CIV-2008-404-2411,

_{14 November 2008 at [20].}

[2] Craig v Hannah HC Whangarei CIV-2009-488-575, 16 September 2009 at [37].