Ivan Vladimir Joseph Erceg v Lynette Therese Erceg and Darryl Edward Gregory as Trustees of Acorn Foundation Trust

JurisdictionNew Zealand
CourtSupreme Court
JudgeElias CJ,William Young,Glazebrook,O?Regan JJ
Judgment Date14 October 2016
Neutral Citation[2016] NZSC 135
Date14 October 2016
Docket NumberSC 17/2016

[2016] NZSC 135

IN THE SUPREME COURT OF NEW ZEALAND

Court:

Elias CJ, William Young, Glazebrook, Arnold and O?Regan JJ

SC 17/2016

Between
Ivan Vladimir Joseph Erceg
Appellant
and
Lynette Therese Erceg And Darryl Edward Gregory As Trustees Of Acorn Foundation Trust
First Respondents
Lynette Therese Erceg And Darryl Edward Gregory As Trustees Of Independent Group Trust
Second Respondents
Counsel:

C R Carruthers QC and R B Hucker for Appellant

G M Coumbe QC and F C Monteiro for First and Second Respondents

Application by the respondents for a non-publication order — the appellant did not oppose the making of the order — the parties were members of a wealthy and well known family who were involved in litigation relating to family trusts — the orders sought would prevent publication of details of the amounts settled on various trusts; the identities of the beneficiaries and the amounts distributed to one of them; the value of the assets received by the appellant — the grounds on which the orders included that the appeal related to private, family matters and to confidential family trusts; publication could create or increase disharmony in the wider family and that contested allegations were unfairly prejudicial and might attract unfair negative publicity — whether the grounds met the high standard for a non-publication order.

The issue was whether the grounds met the high standard for a non-publication order.

Held: The principle of open justice's underlying rationale was that transparency of court proceedings maintained public confidence in the administration of justice by guarding against arbitrariness or partiality, and suspicion of arbitrariness or partiality, on the part of courts. Media representatives should be free to provide fair and accurate reports of what occurred in court (s14 New Zealand Bill of Rights Act 1990 (NZBORA) (right to freedom of expression)). Given the reality that few members of the public would be able to attend particular hearings, the media carried an important responsibility in this respect

The courts have declined to make non-publication or confidentiality orders simply because the publicity associated with particular legal proceedings might, from the perspective of one or other party, be embarrassing (because, for example, it revealed that a person was under financial pressure) or unwelcome (because, for example, it involved the public airing of what were seen as private family matters). The party seeking to justify a confidentiality order had to show specific adverse consequences that were sufficient to justify an exception to the fundamental rule. The standard was a high one.

There had been some controversy about whether the courts had the power at common law to make non-publication orders binding on the public at large in proceedings heard in open court. As far as the common law of New Zealand was concerned, courts had inherent powers to protect the administration of justice and these included the power, where necessary, to make non-publication orders that were binding on third parties (Siemer v Solicitor-General, approving Taylor v Attorney General).

While New Zealand might be something of an outlier in relying on inherent powers in this way, we consider that what had been understood to be the position in New Zealand for more than 35 years was soundly based and should be maintained

The issue of confidentiality arose in circumstances similar to those in the present case in the Australian case of Rinehart v Welker. That case stated that a court could only depart from the fundamental rule that the administration of justice took place in open court rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament had modified the open justice rule. The principle of open justice also required that nothing should be done to discourage the making of fair and accurate reports of what occurred in the courtroom.

This was also applicable in the New Zealand context, subject to clarification of one point. The phrase “the proper administration of justice” had to be construed broadly, so that it was capable of accommodating the varied circumstances of particular cases. The administration of justice standard was capable of accommodating the particular circumstances of individual cases as well as considerations going to the broader public interest.

The respondents had not demonstrated to the requisite high standard that the interests of justice required a departure from the usual principle of open justice. In particular:

  • (a) The mere fact that the proceedings dealt with matters that some family members would prefer be kept private was insufficient to justify an order. The family had been the subject of media attention from time to time. This applied even if there was a risk that relationships within the family would be strained as a result of disclosure.

  • (b) If unfounded allegations against particular trustees or beneficiaries were to be made in the course of the hearing, the respondents would have the opportunity to counter them. Any fair and accurate report of the proceedings would have to reflect that response.42

  • (c) Concerns raised about the safety and security of family members, if sufficiently grave, might justify an order. But in the present case, all that had happened was that security consultants have been called in as a result of media interest in the family's affairs. That was not sufficient to displace the usual principle.

Application for non-publications orders declined

JUDGMENT OF THE COURT

[Non-publication order]

The respondents' application for a non-publication order is dismissed.

REASONS

(Given by Arnold J)

1

The first and second respondents applied for an order preventing publication of certain matters if they were referred to in oral argument in the course of the substantive appeal. Having heard argument on the application at the outset of the hearing, we dismissed it. We now give our reasons for doing so.

Open justice
2

The principle of open justice is fundamental to the common law system of civil and criminal justice. It is a principle of constitutional importance, 1 and has been described as “an almost priceless inheritance”. 2 The principle's underlying rationale is that transparency of court proceedings maintains public confidence in the administration of justice by guarding against arbitrariness or partiality, and suspicion of arbitrariness or partiality, on the part of courts. Open justice “imposes a certain self-discipline on all who are engaged in the adjudicatory process – parties, witnesses, counsel, Court officers and Judges”. 3 The principle means not only that judicial proceedings should be held in open court, accessible by the public, but also that media representatives should be free to provide fair and accurate reports of what occurs in court. 4 Given the reality that few members of the public will be able to attend particular hearings, the media carry an important responsibility in this respect. The courts have confirmed these propositions on many occasions, often in stirring language. 5

3

However, it is well established that there are circumstances in which the interests of justice require that the general rule of open justice be departed from, but only to the extent necessary to serve the ends of justice. So, a court may order that proceedings be heard in camera, either in whole or in part, in the exercise of the

court's inherent power. 6 While the common law recognised very limited exceptions to the principle of open justice, 7 the legislature has seen the need to confer on the courts wider powers to hear evidence in closed court 8 or to prohibit reporting of proceedings or aspects of proceedings, generally to protect those who are seen as vulnerable. Obvious examples relate to the identity of the victims of sexual offending 9 and protection of children in family proceedings. 10
4

There has been some controversy about whether the courts have the power at common law to make non-publication orders binding on the public at large in proceedings heard in open court. In 2004, the Privy Council concluded in Independent Publishing Co Ltd v Attorney General of Trinidad and Tobago that there was no power at common law to make orders effective against the general public which sought to postpone the publication of reports of proceedings in open court –such a power could be conferred only by legislation. 11 The Privy Council did accept, however, that a court could properly order, for example, that a particular witness give evidence under a pseudonym rather than under the witness's proper name; if a member of the public then published the witness's proper name, that person might well commit a contempt of court. 12 This would not be because the person was bound by the court's order but because he or she interfered with the proper administration of justice. 13 In their judgment, the Privy Council considered the decision of the New Zealand Court of Appeal in Taylor v Attorney General, where the Court held that the courts had the inherent power to make non-publication orders in proceedings heard in open court that were effective against the general public. 14 The Privy

Council concluded that the decision was inconsistent with other Commonwealth authorities and was not soundly based. 15
5

These conflicting decisions of the Privy Council and the Court of Appeal were discussed, along with other authorities, by this Court in Siemer v Solicitor-General. 16 In that case, Mr Siemer, who was not involved in the proceedings, had published a judgment dealing with pre-trial matters in a criminal case despite the fact that the Judge had made an order prohibiting publication until after the final disposition of the case in order to protect the accused persons' fair trial rights. All members of the Court agreed that, as far as the...

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