Hepburn v Huhtamaki Henderson Ltd

 
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[2011] NZEmpC 166

IN THE EMPLOYMENT COURT WELLINGTON

WRC 35/11

IN THE MATTER OF a challenge to a determination of the Employment Relations Authority

BETWEEN
Garry Hepburn
Plaintiff
and
Huhtamaki Henderson Limited
Defendant
Counsel:

Tanya Kennedy, counsel for the plaintiff

Anthony Drake, counsel for the defendant

Robert Stewart, counsel for the Dominion Post

NOTE: THE NON-PUBLICATION ORDER DATED 25 NOVEMBER 2011 IN 2011 NZEMPC 154 REMAINS IN FORCE

Application for referral to Solicitor — General of alleged contempt of Court under s196(1)(c) Employment Relations Act 2000 (“ERAct”) (contempt of court or Employment Relations Authority) — application for compliance order pursuant to s139 ERAct (power to order compliance) requiring observance of non-publication order — non-publication issued in relation to details about overseas exchange students in an Employment Relations Authority (“ERA”) determination (romantic/sexual relationship between one student and plaintiff alleged) — Dominion Post (“Dominion”) published article about the determination the next day and made reference to the exchange students — whether Dominion had breached s196(1)(c) ERAct.

The issues were; whether the Dominion had breached s196(1)(c) ERAct; and, whether a compliance order should be issued.

Held: The principle for consideration of a non-publication order was set out in Y v D and was whether it was “in the interests of justice including others of the parties and the community”. A non-publication order should be no wider than was necessary to achieve the interests of justice in any given case. The principle of open justice required that nothing should be done to discourage the publication of fair and accurate reports of proceedings before the Court.

In determining contempt of court, the onus of proof was on the party making the assertion to show that actions had been in breach of a court order. Alleging contempt under s196(1)(c) was a serious matter. Section 196(1)(c) ERAct involved the mental element of wilfulness and s196 as a whole required quasi-criminal actions to amount to contempt of court. The section had no application in the circumstances because it required disobedience to an order or direction of the Court “in the course of the hearing of any proceedings”. In this case there was no court hearing in progress.

No other grounds were relied on so the contempt allegation failed. The EC did not have inherent power contempt powers ( Ryan Security & Consulting (Otago) Ltd v Boltorf). Moreover a compliance order under s139(3) ERAct (power of court to order compliance) as applied for, could not be granted as the Dominion was not a party to the proceeding.

The wording of the non-publication order followed the wording sought in the application. None of the examples identifying information given in the statement of claim were used. There was nothing in the Dominion's article that flouted the terms of the order. If it was important to the plaintiff to obtain an order prohibiting the publication of the fact that the two students were exchange students, counsel should have made it clear in the application or preferably in the draft order, so that the appropriate wording could be embodied in the court order. The wording followed the usual format of orders issued by the court under the Act to prevent identification. If that order needed to be expanded, the initiative had to come from counsel presenting the application.

Application declined.

REASONS FOR JUDGMENT OF JUDGE A D Ford

A D Ford
1

On Tuesday, 29 November 2011, I issued a brief ruling to the parties confirming that I did not consider that there had been any contempt of Court on the part of the Dominion Post in this matter. I said that I would provide written reasons for my decision in the near future and I now do so.

2

The brief background is that shortly before 5.00 pm on Friday, 25 November 2011 an urgent application was filed by Ms Kennedy on behalf of the plaintiff. The application sought a non-publication order in relation to “the naming and any other identifying details” of two overseas exchange students who hadfeatured in the determination 1 of the Employment Relations Authority (the Authority). The Authority Member had issued a non-publication order 2 earlier on 25 November in respect to the naming of either or both of the exchange students referred to in his determination. The urgent order Ms Kennedy sought from the Court was effectively to extend the non-publication order so as to incorporate not only the naming of the students but also “any other identifying details”.

3

Given the urgency of the matter, I issued the order sought on 25 November 2011. 3 In doing so I noted that it was alleged in the statement of claim that the Authority's determination disclosed that the plaintiff had travelled overseas during a period of paid sick leave to allegedly pursue “a romantic/sexual relationship” with one of the students. The allegation was based on work emails which the employer had accessed during the plaintiff's absence overseas. The plaintiff's wife works at the high school in New Zealand that the two students attended and the exchange students had stayed with the plaintiff and his family while in New Zealand. It is pleaded in the statement of claim that both the plaintiff and the exchange student in question deny the existence of any romantic/sexual relationship.

4

On Saturday, 26 November 2011, the Dominion Post newspaper published an article on the case under the headline: “Dismissal after sick leave used for holiday”. The article also apparently appeared on the Dominion Post website. At 9.03 am on Saturday, 26 November, Ms Kennedy sent an email to the Dominion Post alleging that the article was inaccurate and also breached this Court's non-publication order. Ms Kennedy sought urgent confirmation that the article “has been removed from the internet and any further print editions.”

5

On 28 November 2011, Ms Kennedy filed a memorandum alleging that the Dominion Post and the author of the article had breached s 196(1)(c) of the Employment Relations Act 2000 (the Act) and been in contempt by “wilfully” disobeying an order of the Court. She requested that the matter of alleged contempt of Court be referred to the Solicitor General and she also sought a compliance order

pursuant to s 139 of the Act requiring observance of the Court's order of 25 November 2011.
6

Section 196 of the Act deals with contempt of Court and the Authority. It is a self-contained provision in the sense that subsection (1) sets out the matters that amount to contempt and subsection (2) prescribes the actions the...

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