IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2013-485-6215 [2013] NZHC 2630

BETWEEN	TE KOHANGA REO NATIONAL TRUST BOARD

TE PATAKA OHANGA LIMITED Plaintiffs

AND	MĀORI TELEVISION SERVICE
Defendant

Hearing:	9 October 2013

Counsel:	N J Russell for Plaintiffs
W Akel with T Stephens for Defendant

Judgment:	9 October 2013

ORAL JUDGMENT (No. 2) OF THE HON JUSTICE KÓS

[1]       On 23 September 2013 the plaintiffs, the Te Kohanga Reo National Trust Board and its subsidiary, Te Pataka Ohanga Limited, applied orally for an urgent interim injunction to prevent the screening of the “Native Affairs” current affairs programme by the defendant Māori Television Service that evening.

[2]       The circumstances of that application are set out in full in my decision of that date.1

[3]       At that time I was satisfied that the plaintiffs had demonstrated a serious question to be tried that the leaking of credit card records belonging to the plaintiffs could be a breach of confidence.  And I concluded also, albeit marginally, that the balance of convenience favoured the granting of an injunction.  I therefore granted
an interim injunction against the defendant, precluding disclosure or publication of

1	Te Kohanga Reo National Trust Board & Anor v Māori Television Service [2013] NZHC 2490.

TE KOHANGA REO NATIONAL TRUST BOARD & TE PATAKA OHANGA LIMITED v MĀORI
TELEVISION SERVICE [2013] NZHC 2630 [9 October 2013]

the contents of the credit card records, until 5.00 pm on Thursday 26 September

2013.

[4]       On 26 September 2013 the plaintiffs appeared in support of continuation of that injunction. At that point Mr Stephens (who had appeared at very short notice on the first occasion) made further submissions to me.  Those submissions raised the very real point that credit card purchase transactions may not be capable of being confidential at all.  In other words they lacked the necessary quality of confidence to sustain the cause of action.

[5]       Despite making that point, Mr Stephens’ instructions at that stage were not to

oppose continuation of the injunction pending full argument.

[6]       I therefore granted continuance of the injunction until 5.00 pm on Wednesday

9 October 2013.   I also made provision for full argument to occur on that day at

12 noon.  I also made an ancillary order sealing the Court file.

The injunction application is withdrawn

[7]       At 10.09 am this morning, counsel for the plaintiff advised the Court the injunction application would be withdrawn.

[8]       It followed that the only matters the Court would need to deal with would be costs, the undertaking as to damages, the future course of the proceeding, and any issue arising as to publication of material already filed.

[9]       At 12 noon Mr Russell appeared for the plaintiffs, along with Mr Akel and

Mr Stephens for the defendant.

[10]   Mr Russell confirmed his earlier advice that the application for interim injunction was withdrawn.

[11]     I said to Mr Russell that, having read the written submissions filed by the parties overnight, I saw that as a meritorious withdrawal.  I would have found that the transactions in this case lacked the necessary quality of confidence.2

Costs

[12]     That  led then to the question  of  costs.   Mr Akel  applies  for costs.   He indicates that the defendant will be seeking increased, and perhaps indemnity, costs.

[13]   That is to be the subject of further discussion between the parties and memoranda may be filed if the parties cannot agree.  I did indicate to Mr Akel that I think there is a distinction between the position applicable on 23 September 2013 and the position applicable as from 26 September 2013 when the submission as to the quality of confidence of the underlying transactions was squarely before the Court.

Undertaking as to damages

[14]     An undertaking as to damages has been provided by the plaintiffs.  Mr Akel has no instructions at the moment in relation to that undertaking and its enforcement.

[15]     That is a matter which again may be dealt with by way of memoranda in the first instance.  If there is any dispute about the application and enforcement of the undertaking, it can be set down for hearing.

Sealing of file

[16]     Mr Russell today still sought continuance of the ancillary order sealing the Court file.  He points in particular to what he says is frank affidavit evidence filed by the plaintiffs’ staff members as to the circumstances underlying the application.

[17]     There is in this nothing unusual.  It is commonplace for affidavit evidence in support of an interim injunction application to be full and frank.  Indeed it needs to
be. This is an equitable jurisdiction, and such evidence is always required.

2	The transactions themselves occurred in the public domain.  There could be no suggestion that the merchants involved, or the other payment recipients, saw the transactions as confidential.

[18]     There is therefore no reason why the ordinary rules as to the sealing of the Court file should not apply here.   That is, the injunction application having been discharged, likewise the ancillary order sealing the Court file is also discharged.

Defendant’s use of affidavit evidence

[19]     That then led to a further issue.   It concerns publication by the defendant, patently a media organisation, of the content of the plaintiffs’ affidavits.

[20]     Rule 3.9 of the High Court Rules is not directly applicable here.  That rule provides that any party may seek access during the “substantive hearing stage”3  to affidavits and pleadings. That rule plainly is directed at a non-party.

[21]     In  this  case  the  defendant  has  already  been  served  with  that  affidavit evidence.  May it now refer to it in public?

[22]     Mr Akel  referred  to  the  Court  of Appeal  decision  in  H  v  News  Group Newspapers Ltd4 and the observations of Lord Neuberger MR on the cardinal importance  of  open  justice.     Not  an  innovation  that  arose  in  the  European Convention, with which that Court was seized, but a proposition of ancient importance.    Lord  Neuberger cited  Scott  v  Scott5   and  the observations  of  Lord Atkinson:

... in public trial is to be found, on the whole, the best security for the pure impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.

[23]     Also  referred  to  by Mr Akel  was  the decision  of the Supreme Court  in Television New Zealand Ltd v Rogers.6   TVNZ had been enjoined from broadcasting a  videotape  scene  reconstruction,  an  intended  exhibit  at  the  criminal  trial  for Mr Rogers for murder.  On appeal it had been ruled inadmissible.  In that case, which
is  of  course  peculiarly  one  within  the  criminal  jurisdiction,  a  majority  of  the

3         That is pending either 20 working days after the Court has given final judgment or the discontinuance of the proceeding before final judgment.  The application is notified to parties and is subject to judicial scrutiny and control.
4	H v News Group Newspapers Ltd [2011] 1 WLR 1645 (CA).
5	Scott v Scott [1913] AC 417, 463 (HC).
6	Television New Zealand Ltd v Rogers [2008] 2 NZLR 277 (SC).

Supreme Court held that TVNZ should not be restrained from publication of that exhibit.7

[24]     It seems to me that in the civil jurisdiction there is no general reason why a defendant may not make public reference to affidavit evidence filed in support of a now-abandoned injunction application against it.   That is subject to two potential constraints.

[25]     The  first  is  the  ordinary  rule  that  applies  in  relation  to  protection  of documents provided on discovery.  That rule now finds its place in r 8.30(4) of the High Court Rules, providing that a party that obtains a document by way of inspection may use that document only for the purposes of the proceeding.  That rule of course follows the common law position.8    But the High Court in Telstra New
Zealand Ltd v Telecom New Zealand Ltd9 held there was no confidentiality constraint

on use of a document volunteered as an exhibit to an affidavit, in the absence of specific application for confidentiality orders.  In my view the same principle applies to the body of the affidavit.

[26]     That leads to the second constraint.  In some circumstances it is conceivable that an application might be made by a party for orders protecting a separate confidentiality or privacy interest in an affidavit.  That interest might ordinarily be disclosed on a r 3.9 application where a non-party seeks access to affidavit evidence, and the ability to refer to it in a public context.  In this case, however, we are not dealing with r 3.9: the proposed broadcaster is a party and has already been served.

[27]     For this second constraint to apply, an application would need to be made. Mr Russell, when taxed with that proposition, took the entirely fair and sensible position that an ancillary application now to protect particular affidavit evidence in this case was unlikely to succeed.  He did not seek to make such an application.  The
second constraint is not therefore engaged.

7	Mr Rogers had been acquitted at that trial, some time before the proposed broadcast.
8	Home Office v Harman [1983] AC 280(HL) and Telstra NZ Ltd v Telecom NZ Ltd [1999] 14
PRNZ 108 (HC).
9	Telstra New Zealand Ltd v Telecom New Zealand Ltd [1999] 14 PRNZ 108 (HC).

Conclusion

[28]	The net result of all that is the injunction is discharged.	And so is the ancillary order sealing the Court file.

[29]	I will hear from  counsel in relation to costs,  and on the undertaking,  if necessary, if there is disagreement.

Stephen Kós J

Solicitors:
Chen Palmer, Wellington for Plaintiffs
Simpson Grierson, Wellington for Defendant