NZ Herald publisher NZME beats rare ‘Kafkaesque’ super-injunction

The case was heard today in the High Court at Auckland. Photo / File

The NZ Herald and its publisher NZME have beaten an extremely rare order preventing them from naming parties who have gone to court to prevent the website and newspaper publishing their identities or knowing the identity of one of the plaintiffs.

The court order, believed to be one of the first of its kind in New Zealand, resembled the “super-injunctions” that have appeared in the UK courts, preventing publishers from reporting even the fact of court proceedings.

Such orders have been widely criticised, including by New Zealand courts, and described as an affront to open justice principles.

Details of the New Zealand and overseas institutions and individuals involved - besides NZME - still cannot be named pending an appeal.

The initial court order came after inquiries from the Herald as part of what the website deems a journalistic investigation on a matter of public interest.

After the Herald began asking about allegations, the parties sought an urgent injunction preventing the Herald from publishing details of the allegations, the parties involved in the dispute or anything referring to the subject of the inquiry.

Justice Geoffery Venning granted the application on an interim basis until it could be heard at the Auckland High Court on Friday morning by Justice Christian Whata.

The parties, who still cannot be named pending an appeal, were represented in court by three Auckland-based lawyers from major firm Russell McVeagh, Nathanial Walker, Joe Edwards and James Tocher.

Bell Gully lawyers Tania Goatley and Kristin Wilson, representing NZME, 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 unheard of. 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.

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 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.

Justice Whata rescinded the order suppressing the names of the parties who took the claim.

However, he granted a seven-day period where the plaintiffs can appeal in which they still cannot be named.