Herald beats super-injunction: Inside the ‘Kafkaesque’ free speech battle in secret investigation case

NZME's application to rescind parts of the interim injunction was heard at the Auckland High Court on Friday.

A wealthy overseas individual has gone to the High Court to stop the Herald publishing an investigation involving allegations against mysterious foreign figures linked to a New Zealand institution. George Block was in court as three Kiwi lawyers battled to keep the allegations under wraps and their client’s name secret.

In Franz Kafka’s 1925 novel The Trial, Josef K awakes one morning to find himself accused by an unknown body of an unspecified crime.

Almost a century later, NZ Herald’s publisher NZME was last week served with an interim injunction order preventing it from publishing allegations against one unknown foreign individual and two US companies connected to a New Zealand institution.

The order came after queries to a New Zealand institution by Herald senior writer Kim Knight as part of an investigation involving what the Herald deems a matter of clear public interest.

Court documents served to NZME redact the name of the overseas-based man - meaning the publisher was unaware who was alleging it was about to publish potentially defamatory allegations.

Tania Goatley, a lawyer acting for NZME, would later describe in court the situation of the defendant not knowing the plaintiff as “Kafkaesque”, alluding to the situation Josef K found himself in.

An interim injunction preventing publication of the allegations, the identities of the plaintiffs or even the identity of NZME was granted on an ex parte basis by Justice Geoffrey Venning last week until the case could be considered in court.

Ex parte means in this context the injunction was granted without NZME having the chance to submit.

The sweeping injunction meant the Herald was unable to publish anything at all about the order.

It resembled the controversial “super-injunctions” that have arisen in UK courts preventing newspapers from printing even the names of companies or individuals who have taken legal action to prevent publication.

Super-injunctions are essentially unheard of in New Zealand.

They are widely criticised as an affront to freedom of speech and open justice principles that allow the media to serve as the public’s eyes and ears in court.

On Friday at the Auckland High Court, Justice Christian Whata heard arguments from NZME’s lawyers Goatley and Kristin Wilson, of Bell Gully.

They were seeking to rescind elements of the sweeping interim injunction, particularly the right to name the three plaintiffs who had brought the case and the identity of the mystery man whose name was unknown to the publisher.

In court for the plaintiffs were a trio of lawyers from Russell McVeagh: Nathaniel Walker, Joe Edwards and James Tocher.

Justice Whata immediately allowed the Herald to reveal the fact of the sweeping injunction against it and rescinded the suppression orders for the wealthy individual and the two companies.

Justice Christian Whata is set to release a judgment on the case on Monday.

But they are unable to be named as the Judge allowed a seven-day period in which they can launch an appeal.

Goatley told the court the publisher had not even been informed of the identity of one of the parties who took the court action.

Justice Whata agreed it was “inconceivable” that a defendant asserted to have defamed someone should not be told the identity of their accuser.

“I’m at a loss as to why we’d have a person who wants to come to this court and commence proceedings in the context of open justice but at the same time says I don’t want anyone to know I’m doing it,” Justice Whata said.

The Judge said such an order was unprecedented.

During a preliminary court hearing, Goatley described the order as “Kafkaesque” because NZME cannot be sure if it’s complying with the order without knowing the identity of the third plaintiff.

“So the defendant doesn’t know who their accuser is,” Justice Whata said.

“That’s unheard of. Even in a sexual allegation claim the accuser has to be known to the defendant.

Walker cited case law from a family trust dispute to support his argument for ongoing suppression of his clients’ identities, an argument rejected by the Judge.

“Can we stay within [the] lane,” he said.

“This is a defamation context, this is a context where we’ve got major corporates protecting their assets.

“We’re not talking [about] a family dispute.”

Walker was unable to provide a legal authority - when asked by Justice Whata - supporting a plaintiff wanting to take a claim suppressing publication but not wanting anyone to know their identity.

Key to the case is the right of publishers to print honestly held opinions so long as they are grounded in fact, thereby minimising the risk of defamation.

Goatley cited the example of a restaurant review, where a writer may cite the fact the premises had lost their booking and delivered cold food as the basis for their honestly held opinion the place was not worth visiting.

Justice Whata said certain allegations the Herald is seeking to publish looked as if they were presented as facts, but Goatley said it would be made clear they were in some cases opinions with a factual basis.

The Judge later asked Walker to hone in on exactly which allegations are false and harmful and needed to be suppressed to prevent damage to his clients, if his claim is to succeed.

“The nature of injunctions is normally quite precise,” Justice Whata said.

The Judge said he was resistant to an order preventing NZME from discussing anything around the nature or subject of the allegations and said he was concerned about the breadth of the order sought.

“I can see why the press is worried about an injunction like this, it becomes a blanket sort of suppression on the issue.

“An injunction doesn’t normally work like that.”

Justice Whata is set to release his judgment on NZME’s application to rescind elements of the interim injunction order on Monday.

A further hearing is scheduled for later in the week covering the plaintiff’s application for leave to appeal against Justice Whata’s rescission of the order suppressing their names.