IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-78 [2014] NZHC 11

BETWEEN	SARA CHATWIN Intended Plaintiff
AND	APN NEWS AND MEDIA LTD Intended Defendant
Hearing:	17 January 2014

Counsel:	N Tabb for Intended Plaintiff
A Ringwood for Intended Defendant

Judgment:	17 January 2014

Reasons:	20 January 2014

REASONS FOR JUDGMENT OF KATZ J

Solicitors:	N Tabb, Auckland
Bell Gully, Auckland

CHATWIN  v APN NEWS AND MEDIA LTD [2014] NZHC 11 [17 January 2014]

Introduction

[1]       At 4:00 pm on Friday, 17 January 2014, the intended plaintiff, Sara Chatwin, made an oral application, at short notice, for an interim injunction restraining the intended defendant, APN News and Media Ltd (“APN”), from publishing an article regarding her extended family.  Ms Chatwin’s understanding was that such an article was likely to be published in the Herald on Sunday newspaper this weekend.

[2]       Given the urgency, the matter proceeded orally. Mr Ringwood was able to appear on short notice for the intended defendant, to assist the Court on a “Pickwick” basis.

[3]       After hearing from counsel for both intended parties I declined the injunction application, with written reasons to follow.  My reasons for declining the injunction application are set out below.

Submissions for Ms Chatwin

[4]       Ms  Tabb,  for  Ms  Chatwin,  outlined  the  relevant  factual  background. Ms Chatwin was in Court and available to give evidence if required, however this did not prove to be necessary.

[5]       Ms Chatwin’s mother, Lynne Chatwin, died six days ago.   Following her death  a  reporter  from  the  Herald  on  Sunday  contacted  Sara  Chatwin  seeking comment regarding apparent discordance within the extended Chatwin family. Feelings within the family are apparently running high following the recent death of Lynne Chatwin. There is a history of litigation in relation to family issues, including a case concerning family trusts which settled following mediation last year.   The Herald on Sunday’s source is not known, but Ms Chatwin believes that one or more members of the extended family might have provided information to the Herald.

[6]       Based on her conversation with the reporter, Ms Chatwin believed that the Herald on Sunday was intending to run an article this Sunday, 19 January 2014.  She understands that the crux of the article will be to comment on discord within the

Chatwin family and events surrounding the death of Lynne Chatwin. Ms Chatwin does not believe it is appropriate for the Herald to write an article about such private family matters, particularly so soon after her mother’s death.

[7]       Ms Chatwin instructed Ms Tabb, who spoke to the Herald on Sunday editor, Miriyana Alexander.   Ms Alexander confirmed that an article was being prepared, which could run this Sunday, although a final editorial decision had yet to be made. Ms Alexander would not agree to delay the article or allow Ms Chatwin to review it prior to publication.

[8]       In response to questioning from the bench as to why the media might have a particular interest in the Chatwin family, Ms Tabb advised that Mr Chatwin senior had been a well known businessman and Ms Chatwin is a registered psychologist with some media profile. She frequently comments on matters in the media, as well as having a private practice as a psychologist.   There is therefore a risk that publication of an article could impact on her professionally. Ms Tabb advised, however, that the key concern is to protect the family’s privacy during the grieving period.

[9]       When pressed to identify the causes of action which would be pleaded by Ms Chatwin  against  the  Herald  on  Sunday  in  the  intended  statement  of  claim, MsTabb indicated that the primary cause of action would be breach of privacy, based on the principles in Hosking v Runting.1    Given the urgency, however, she had not had an opportunity to turn her mind to specific issues of pleading.

Submissions for APN

[10]     Mr Ringwood appeared for the intended defendant, at short notice, on a “Pickwick” basis.  His instructions were accordingly relatively sparse.  However, he did confirm that no editorial decision had yet been taken as to whether to publish an article on Sunday 19 January 2014.  In accordance with its usual policy, the Herald on Sunday was not prepared to accede to Ms Chatwin’s request to review a copy of
the  article  in  advance  of  publication.  Nor  was  it  prepared  to  agree  to  defer

1 Hosking v Runting [2005] 1 NZLR 1 (CA).

publication while discussions take place.   Rather, an editorial decision would be taken in due course as to the appropriate time to publish any article, and the final content of that article.

[11]     Mr Ringwood also submitted that the general subject matter of the reporter’s questions was already in the public domain as a result of a death notice published by family members in the Herald last Wednesday. That notice (which I have not seen) apparently made it clear that there was a rift within the family and prompted the Herald on Sunday’s interest in the story.    Other media organisations may well be pursuing similar lines of inquiry.   Mr Ringwood submitted that it would be unfair and pointless to restrain only APN from publishing on the topic.

[12]     Mr Ringwood further submitted that it is a serious matter for someone to come before the Court seeking to restrain publication of an article by the news media.  Further, a family rift arising publicly is not a private fact. This case simply does not meet the fundamental requirements for a tortious claim for invasion of privacy, as set out by the Court of Appeal in Hosking v Runting.  Reference was also made to the fundamental importance in our society of freedom of expression, as enshrined in s 14 of the New Zealand Bill of Rights Act 1990 (“BORA”). The media are at the vanguard of freedom of expression.

[13]     In  conclusion,  Mr  Ringwood  submitted  that  the  balance  of  convenience clearly favoured his client and that the injunction application should accordingly be dismissed.

Reply submissions for Ms Chatwin

[14]     In reply, Ms Tabb disputed any suggestion that publication would be limited to matters already in the public domain as a result of the death notice.  The enquiries being undertaken by the Herald on Sunday are clearly much broader than that and accordingly it is likely that any article will include matters that are not already in the public domain. “Common decency” dictates that there is no need to publish an article so soon after the death of Lynne Chatwin.  The family should be allowed time to grieve.

Discussion

[15]     The matters a court is required to take into account when considering an application for an injunction are well known and it is not necessary to repeat them here.  In summary, I declined Ms Chatwin’s application because I had real doubts as to whether she had established a “serious question to be tried” against APN.  At the very least  her  intended  claim  appears  to  be  weak  on  the  information  currently available.   Against this I balanced the interests of the Herald on Sunday and the importance of freedom of speech, as enshrined in the BORA.  I concluded that the overall balance of convenience favoured the Herald on Sunday.

Serious question to be tried

[16]     In order to obtain an injunction Ms Chatwin must establish that she has a serious question to be tried against APN.  If there is no serious question to be tried, assessed  as  at  the  time  of  the  injunction  application,  the  application  must  fail. Ms Chatwin did not allege that the material the Herald on Sunday intends to publish is untrue.  No defamation cause of action was foreshadowed. Rather, Ms Chatwin’s intended claim is founded on the tort of invasion of privacy.

[17]     I note that, currently at least, she is the only intended plaintiff. Accordingly it is her privacy interests that must be the focus of any inquiry.  Other members of her extended family may not share her privacy concerns.   Indeed there was some suggestion that other family members may be providing information to the Herald on Sunday.

Invasion of privacy – legal principles

[18]     In  Hosking  v Runting  the Court  of Appeal  confirmed,  in  a 3:2  majority judgment, that a tort of invasion of privacy does exist in New Zealand.  The majority gave two judgments, a joint judgment of Gault P and Blanchard J and a separate judgment of Tipping J.   It is clear from the joint majority judgment and the other

authorities  discussed  by the learned  authors  of  The Law  of Torts,2   that  the tort requires proof of three things:

(a)	public disclosure;

(b)       the facts alleged must be private facts, i.e. facts in respect of which there was a reasonable expectation of privacy;

(c)       the facts must be of a kind the publicity of which would be highly offensive or objectionable to a reasonable person of ordinary sensibilities.

[19]     Even in a case where the three stated criteria are met, a defence may be available  based  on  the  nature  and  extent  of  legitimate  public  interest  in  the disclosure.

[20]     Publication of an article in the Herald on Sunday would clearly meet the first requirement.   In relation to the second requirement, counsel for Ms Chatwin was unable to point to any specific private facts that the Herald on Sunday may be intending to publish.  The difficulty faced by Ms Chatwin is that she simply does not know what, if anything, various family members or others may have said to the Herald on Sunday reporter.   All that she knows is that a reporter is investigating “discordance” within the extended family that apparently dates back many years and seems to have come to a head with the recent death of Lynne Chatwin.

[21]     Mr Ringwood submitted that the family discordance is already a matter of public record.  It is impossible to determine, however, the extent of the information publicly available in the absence of evidence (including the relevant death notice). At the very least, the fact that there is discordance within the extended family seems
to be in the public domain, although the underlying details are probably not.

2	Stephen Todd and others The Law of Torts in New Zealand (5th ed, Brooker, Wellington, 2009) at
855.

[22]   Mr Ringwood also pointed to the fact that Ms Chatwin is a “celebrity psychologist”.   It is well established that celebrities and public figures have less expectation of privacy than other people.3

[23]     However, even if I were to accept, for present purposes, that the existence and nature of family conflict is a matter in respect of which Ms Chatwin has a reasonable expectation of privacy, that would not be determinative.  I accept entirely that this must be a particularly distressing time for Ms Chatwin (and the family generally) and that publication of information regarding conflict within the family could  potentially  be  embarrassing  and  distressing.        However,  in  my  view, publication of such information would be unlikely to meet the requirement of being highly offensive or objectionable to a reasonable person of ordinary sensibilities, the third requirement of the tort of invasion of privacy.

[24]     For these reasons I had real doubts as to whether Ms Chatwin had even established a serious question to be tried. At the very least, her intended claim appears to be weak on the limited information available pre-publication.

Freedom of speech

[25]     Balanced against the weakness of the claim, I took into account the Herald on Sunday’s right to   freedom of expression, as reinforced by s 14 of BORA, which provides that:

Everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind in any form.

[26]     Obviously, freedom of expression is not an absolute value, as recognised by s 5 of BORA.   However, given the weakness of any tortious invasion of privacy claim in this case, the right to freedom of expression must be given significant
weight.

3 Hosking v Runting, above n 1, at 33-34.

Conclusion

[27]      Ultimately I concluded that the overall balance of convenience favoured

APN and accordingly Ms Chatwin’s injunction application should be dismissed.

[28]     I do not underestimate the genuine distress and concern of Ms Chatwin at the prospect of having “private” family matters aired in the media. New Zealand law does not, however, recognise an absolute right to privacy in respect of such information.   Indeed, the elements of the tort of invasion of privacy are such that successful claims are likely to be fairly rare.

[29]     It is a serious matter to restrain publication of an article by the media in any circumstances, but particularly where there is little knowledge of the content of the intended article. Ms Tabb’s response was that responsibility for that rests with the Herald on Sunday, as it will not provide a pre-publication copy of the article for review. There is, however, no obligation on it to do so.

[30]     The threshold  for injunctive relief is set  at a  high level, which  was  not reached in this case.  I accordingly dismissed the application, for the reasons I have outlined. I reserved the question of costs.

Costs

[31]     Counsel are invited to confer as to costs.  In the event that costs cannot be agreed, and the intended defendant wishes to apply, APN is to file and serve its costs memorandum on or before 3 February 2013.  Any memorandum in opposition shall be filed and served by the intended plaintiff on or before 10 February 2013.  Costs
will then be determined on the papers.

Katz J