Justice Christian Whata presides over the three plaintiffs' application for leave to appeal at the Auckland High Court on Friday. Photo / Michael Craig
Justice Christian Whata presides over the three plaintiffs' application for leave to appeal at the Auckland High Court on Friday. Photo / Michael Craig
A judge has again found in favour of NZME in the publisher’s legal battle to name the mysterious overseas entities seeking to stop it publishing their identities along with the results of a Herald investigation.
But while the courts have upheld a ruling allowing the Herald to identify the companies and the subject matter of the stoush, they still cannot be named.
That is because their high-powered New Zealand legal team is launching a last-ditch appeal bid, the Herald learned today.
Justice Christian Whata served up a robust dressing down to a Kiwi lawyer acting for the overseas man and the two US-registered companies he manages at a hearing last Friday at the Auckland High Court.
The lawyer, Nathaniel Walker of Russell McVeagh, included arguments in an application for leave to appeal that had not been raised at earlier hearings.
The Court of Appeal has been clear it doesn’t want to deal with fresh matters on appeal that have not been tested in the lower courts, the judge said.
“Can I say to you, counsel, it is somewhat irritating to see in an application for leave to appeal arguments raised for the first time,” Justice Whata said.
Meanwhile, machinations continue in the background, as the owners battle to prevent the allegations emerging in full.
Lawyers for NZME Kristin Wilson (left) and Tania Goatley confer during Friday's hearing. Photo / Michael Craig
American lawyers have been contacting Herald sources demanding they rescind permission for their interviews to be printed.
Some have agreed.
The complex legal saga began early in March.
Herald senior writer Kim Knight contacted a New Zealand institution with queries relating to what the newspaper and its website views as a matter of high public interest.
The overseas man and the two Delaware-registered companies he manages have a link to the New Zealand institution.
Their lawyers wrote to the Herald on March 6 demanding it not publish material they viewed as defamatory. Nothing was published.
On March 9, they filed an application for a sweeping interim injunction suppressing not only the allegations they viewed as defamatory, but also their identities, the subject matter of the dispute and the name of the New Zealand institution involved.
Justice Geoffrey Venning granted the interim injunction on all terms sought by the plaintiffs on an ex parte basis, meaning NZME’s lawyers were not given the opportunity to respond or submit.
At a hearing on Friday, March 17, before Justice Whata in the Auckland High Court, NZME’s lawyers Tania Goatley and Kristin Wilson, of Bell Gully, sought to rescind aspects of the interim injunction.
Nathaniel Walker, lawyer for the mystery overseas plaintiffs, argues their case on Friday. On the left is his co-counsel Joe Edwards. Photo / Michael Craig
In particular, NZME sought to revoke the non-publication orders covering the subject matter of the dispute, the identities of the plaintiffs and the involvement of the New Zealand institution.
Justice Whata agreed it was “inconceivable” that a defendant asserted to have defamed someone should not be told the identity of their accuser.
“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.”
At the March 17 hearing, Justice Whata immediately allowed the fact of the injunction to be reported for the first time. He also rescinded the suppression orders for the man and the companies.
They still could not be named pending an appeal.
Friday’s hearing was set down for Justice Whata to hear whether lawyers for the plaintiffs had an arguable case to take to the Court of Appeal.
The judge again expressed amazement at the scope of the injunction sought - and obtained on an interim basis at least.
“A blanket injunction against any report of a case whatsoever, that’s unprecedented.”
Walker argued the judge had erred in various ways.
They included failing to take into account privacy interests, giving too much weight to NZME’s public interest arguments and failing to consider alternate orders, such as prohibitions on publishing commercial information, Walker argued.
Justice Whata appeared to grow increasingly irritated with Walker as the hearing wore on.
The judge said the fact the plaintiffs were seeking such a sweeping injunction had added fuel to the publicity fire.
“They’re only front page news because you brought the proceedings,” Justice Whata said.
“You’re wanting to use the machinery of the state to interrogate … freedom of speech.”
Justice Whata was unimpressed with some of what he heard. Photo / Michael Craig
He also took issue with some of the arguments Walker employed in the bid to take the case to the Court of Appeal, particularly the suggestion the judge did not consider alternate orders.
“You’ve said I failed to have regard for an alternate order, well you didn’t put it to me,” Justice Whata said.
“Do you understand the point?”
The fact new material was included in the appeal application was repeatedly condemned by the judge.
“You’re seeking leave to appeal on a matter that was not raised at first instance,” Justice Whata said.
“The Court of Appeal is very clear it does not want to deal with fresh matters on appeal.
“It is irritating for a judge to see in an application for leave new grounds, completely fresh grounds, which were not raised before a judge,” he said.
Justice Whata said perceived reputational harm from the simple fact of being involved in court proceedings was not sufficient to grant suppression, a ruling deriving from Erceg v Erceg, a landmark Supreme Court ruling on the importance of open justice.
“This is no small intrusion, it’s an intrusion on a fundamental right.”
Tania Goatley, of Bell Gully, arguing for the Herald to be able to name the companies and mystery overseas man who took legal action against the publisher. Photo / Michael Craig
Justice Whata concluded the two companies named as plaintiffs on the court documents had no prospect of success if they went to the Court of Appeal, and declined to grant them leave to appeal his decision allowing them to be named.
However, he granted leave to appeal the decision allowing the third plaintiff - the overseas man - to be named.
“I am sympathetic with the third plaintiff,” Justice Whata said.
“He’s an individual who has privacy considerations.”
Today, the courts confirmed lawyers for the plaintiffs had filed an application for special leave to appeal, which will need to be heard before they can be named.
