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High Court of New Zealand Decisions |
Last Updated: 7 May 2019
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ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE
PARTIES.
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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
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CIV-2018-409-432
[2018] NZHC 3433 |
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BETWEEN
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A LIMITED
First Plaintiff
B LIMITED
Second Plaintiff
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AND
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C LIMITED
Defendant
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Hearing:
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20 December 2018 (On the papers)
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Appearances:
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G Riach and M Crimp for Plaintiffs
J Baigent and J Dickson for Defendant
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Judgment:
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20 December 2018
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JUDGMENT OF MANDER J
[1] These proceedings relate to the disputed termination by C Limited of its contractual relationships with A Limited and B Limited. Those companies sought interim injunctive relief which I declined in my judgment of 16 August 2018.1
[2] At the conclusion of the judgment, I made an order prohibiting publication of the names and identifying particulars of the parties and suppressed passages of the judgment. That order was made on an interim basis until final disposition of the proceeding or further order of the Court.2
1 A Ltd v C Ltd [2018] NZHC 2111.
2 A Ltd v C Ltd [2018] NZHC 2139.
A LTD v C LTD [2018] NZHC 3433 [20 December 2018]
[3] At the commencement of the proceeding, I also granted a joint application which resulted in the making of the following orders:
(a) The entire Court file is not to be accessed without the permission of a Judge (refer r 5 of the Senior Courts (Access to Documents) Rules 2017).
(b) The exhibits to Mr [X’s] affidavit labelled “O”, “Q”, “R” and “S”, contained in exhibit volume CB1 and all exhibits contained in exhibit volumes CB2 and CB3 are to be treated as strictly confidential and sealed on the Court file.
(c) All employees and former employees of C Limited named in the exhibits to Mr [X’s] affidavit are granted name suppression in respect of their names and any and all particulars that could lead to their identification.
The application
[4] The parties have now settled the proceeding and it is to be discontinued. However, prior to that step being formally taken, the parties jointly seek final suppression orders on the same terms as those made on an interim basis to date. The grounds relied upon in seeking final orders are the same as those put forward in support of the interim orders.
[5] It is submitted that without final orders being made a number of persons referred to in the evidence will be identifiable, at least to those involved in the life insurance industry, and that this will result in distress and anxiety to those individuals. The allegations which gave rise to the contractual dispute involve female employees of C Limited and concern matters of a private nature.
[6] The parties submit there is no public interest in knowing the identities of the parties or witnesses, nor other persons referred to in the evidence. The point is made that this is not a case where disclosure is required to protect or inform the public, or to encourage other potential claimants to come forward. It is noted that the events the
subject of the proceeding have been comprehensively investigated by an independent investigator whose report formed the basis of C Limited’s termination of its relationship with Mr X.
[7] I am advised that A Limited and B Limited have completed the sale of their policy portfolios to an independent third party, and that Mr X, as part of the settlement of the overall dispute, has undertaken not to have any contact with C Limited’s employees.
[8] A further concern raised for the first time is the wellbeing of Mr X and, in particular, his family should his identity be made public. In support of that submission, a medical certificate has been provided to the Court by his family doctor.
Suppression principles in civil cases
[9] The power to suppress the names and identifying particulars of parties and witnesses involved in civil proceedings, or other details of such cases, is found in the inherent jurisdiction of this Court. The starting point in approaching the issue is the principle of open justice and the related freedom of expression guaranteed by s 14 of the New Zealand Bill of Rights Act 1990.3 Together, those two tenets create a presumption of disclosure that is to apply in respect of civil court proceedings.4
[10] Because of the importance of the principle of open justice, a court will need to have sound reasons for finding that the presumption favouring publication is displaced. However, there is no onus or burden on an applicant seeking suppression to justify that step. The question is simply whether the circumstances justify an exception to the fundamental principle of openness.5 No particular threshold is required to be met.
[11] In Y v Attorney-General, the Court of Appeal endorsed its earlier approach in
Jay v Jay, that “extraordinary circumstances” are not required to justify suppression
3 Y v Attorney-General [2016] NZCA 474, [2016] 23 PRNZ 452 at [25].
4 At [26].
in a civil case.6 However, the threshold remains a high one because any suppression order necessarily derogates from the principle of open justice and the right to freedom of expression.7 The correct approach requires the Court to “strike a balance between open justice considerations and the interests of the party who seeks suppression”.8
[12] Because of the “limitless variety” of civil cases, each of which will be factually different from the other, the balancing exercise must necessarily be case dependent.9 Sometimes there will be a significant and legitimate public interest in knowing the names of the people involved in a case, be they the parties or witnesses, or of knowing about the detail of the case. In illustrating that point, the Court of Appeal, in Y v Attorney-General, referred to the usually high public interest in knowing the names of professional practitioners facing charges in disciplinary proceedings.10 That it is to be compared with the likely limited legitimate public interest in knowing the name or identifying particulars of parties or of details of cases where the information is intensely private or personal or is considered confidential or commercially sensitive.11
[13] Further considerations to be taken into account are how central the information sought to be suppressed is to understanding the nature of the proceeding and what it is that the Court has decided. There will be a stronger presumption favouring disclosure where such detail is required in order for the public to understand what the Court has decided and why.12 Different considerations will also apply depending upon what is sought to be suppressed and the stage which the proceeding has reached. Suppression is more likely to be granted on an interim basis at an interlocutory stage of a proceeding. The Court will likely be better placed to assess the need for permanent suppression after it becomes familiar with the particular details of the case at trial.13
6 Y v Attorney-General, above n 3, at [30]; Jay v Jay [2014] NZCA 445, [2015] NZAR 861 at [118].
9 Y v Attorney-General, above n 3, at [32].
10 At [32].
11 At [33].
12 At [34].
13 At [34].
Names of parties
[14] The reasons put forward for suppressing the parties’ names in the present proceeding are the same as those relied upon for the purpose of the interim application. Suppression of Mr X’s name was sought primarily on the basis that publication would lead to the identification of C Limited. His companies are closely aligned to C Limited, revenue from which comprised almost the whole of Mr X’s business. It was said this was widely known throughout the life insurance industry. As a result, it was submitted that publication of Mr X’s name would inevitably lead to the identification of C Limited and, importantly, may result in the identification of particular female employees, notwithstanding none of them having been named in the judgment.
[15] It was contended that identification of Mr X would lead to speculation, both internally within the offices of C Limited and in the wider insurance industry, as to who the staff members were. To avoid the risk of consequential embarrassment and humiliation being suffered by those employees, it was submitted the parties’ names should be suppressed.
[16] Anonymisation of C Limited’s name was sought on the same basis; that it was necessary to protect the interests of that company and its employees. C Limited maintained that the essential reason for terminating its contractual relationship with Mr X was because of the reputational damage it would likely suffer as a result of his conduct. As the defendant in the proceeding brought by Mr X’s companies, it was submitted that, through no fault of its own, the type of damage sought to be avoided by justifiably terminating its relationship with Mr X would still result simply from it being named as a party to his proceeding.
[17] In relation to Mr X, there is now a medical concern raised on his behalf, and concerns regarding the welfare of his family. In particular the detrimental effects on Mr X’s young children, said to arise from the stress on their parents, as attested to by their doctor, is submitted would likely be aggravated should his name be published.
[18] Both parties submitted that with the proceeding now settled, the matter will not proceed to trial. There will be no final determinations or findings of fact. The allegations and evidence put forward to date will not ultimately be tested. I accept the potential damage to the reputation of the parties and the privacy interests of C Limited’s employees need to be gauged against that background.
Decision
[19] There is a risk of C Limited’s employees being identified and of harmful distress and anxiety being caused to them should the parties be named. I consider that concern is best mitigated by anonymising the names of the parties, which is a more preferable course to redacting more parts of the judgment than would otherwise be required. It is the best means to protect the legitimate interests of witnesses and other persons who are entitled to privacy in respect of matters that are personal and likely to cause embarrassment and distress.
[20] For privacy and reputational reasons, not least those relating to the interests of C Limited’s employees and the legitimate need for their identities to remain confidential, I consider suppression of the names of the parties, including Mr X’s identity, is justified in order for that to be achieved. I also consider that by taking that step, my judgment will be able to be published with fewer redactions. That will promote an understanding of the issue that has been decided and strikes the proper balance between open justice considerations, the interests of the parties and, most importantly, that of C Limited’s employees.
[21] I do not consider there is a strong legitimate public interest in knowing the identity of the parties. Mr X’s relationship with C Limited has been severed. The policy portfolios are now held by an independent third party, so to the extent policyholders may have had a genuine interest in knowing about the alleged conduct of Mr X as their insurance and financial advisor, that has receded.
[22] I do not consider C Limited’s concerns regarding its reputation would by itself justify suppression of the parties’ names. As I noted in my earlier decision regarding interim suppression, the potential jeopardy to C Limited’s reputation could only arise from concerns at having not taken appropriate action in response to Mr X’s conduct,
rather than how it would be viewed from its association with Mr X.14 C Limited’s position is that it has taken proper steps in the circumstances, including the termination of its contractual relationship with Mr X. There is no reason to believe C Limited would not consider its approach and processes would withstand public scrutiny. That said, I accept that because the proceeding did not advance beyond an interlocutory stage the evidential narrative is untested and, to that extent, there remains a reputational risk to both C Limited and Mr X.
[23] In Jay v Jay, a decision of the Court of Appeal, later endorsed by the same Court in Y v Attorney-General, the appellant successfully applied for orders suppressing the parties’ names and identifying particulars.15 That case concerned a claim for assault and battery and breach of fiduciary obligations arising out of a sexual abuse allegation. The Court of Appeal granted permanent name suppression to the parties. It considered there was no public interest in publicising their details. As was emphasised by counsel in the present case, the Court in Jay observed that it was not a situation where disclosure was required to protect or inform the public, nor to encourage other potential claimants to come forward. The position is the same here.
[24] There will be a final order prohibiting publication of the names or identifying particulars of the parties to this proceeding.
Redactions
[25] I delayed the formal release of my judgment on the interim application for relief in order to provide an opportunity to counsel to bring to my attention any passages which may lead to the identification of employees or former employees of C Limited. I noted at the time that because of the general way in which Mr X’s alleged conduct and interactions with employees had been framed in my judgment, I did not consider that concern arose. However, C Limited considered that redactions were required to safeguard its staff and its own reputational interests.
14 A Ltd v C Ltd, above n 2, at [4].
15 Jay v Jay, above n 6; Y v Attorney-General, above n 3, at [33].
[26] I accept that C Limited’s concerns for its staff are genuine. I also acknowledge its submission that there are only a relatively small number of providers in the life insurance market. However, I do not accept that the redacted passages, or at least the majority of them, would result in either the identification of particular staff members nor of C Limited itself as the insurance company in question. Counsel’s joint memorandum did not address the doubts I raised at the time of making my interim decision regarding this issue.16 In the context of an application for final suppression, I do not consider the presumption in favour of publication is displaced by the concerns raised.
[27] As a result, the current suppression of the redacted passages in paragraphs [6], [22], [26], [35], [36], [51], [52] and [54] is now lifted. These limited parts of the judgment were redacted primarily because of a concern that the greater detail of the allegations may cause embarrassment. However, the judgment makes clear that these details are the contentions of the parties and not actual findings. Furthermore, I do not consider the content of those passages would realistically lead to the identification of particular employees. However, I accept the greater particularisation of the narrative of the allegations, set out in passages contained in paragraphs [27], [53] and [55], carries that risk. In respect of those discrete passages a final order is made prohibiting publication.
Access to the file
[28] The access and confidentiality orders which I made in respect of the Court file are largely governed by the Senior Courts (Access to Court Documents) Rules 2017 (the Rules). My order under r 5, preventing access to the Court file without permission of a Judge, remains extant. Similarly, the order sealing particular exhibits to Mr X’s affidavit will remain in place.
[29] Any application made under the Rules to access the file would have to be dealt with on its merits. However, it should be noted that any such application would necessarily have to be assessed against the considerations which have influenced the making of the final suppression orders regarding the parties’ identities and the
16 A Ltd v C Ltd, above n 2.
protection of C Limited’s employees. Such an application would not be considered without referral to the parties who would be provided with an opportunity to be heard.
[30] In relation to the current order suppressing the name of employees and former employees referred to in the exhibits to Mr X’s affidavit, or any particulars that would lead to their identification, for the reasons already canvassed, that order will be made final. Those persons have obvious privacy interests arising from the personal and sensitive nature of the material included in Mr X’s evidence, and there is no apparent legitimate public interest in them being identified.
Solicitors:
Simpson Grierson, Auckland Harman Lawyers, Christchurch
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