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18-year-old in Hughes incident awarded injunction

By Steven | March 29, 2011

The student who made the complaint against Darren Hughes has obtained a High Court injunction preventing him from being identified.

The claim is made against Fairfax, APN, TVNZ, MediaWorks and bloggers Danyl McLauchlan and David Farrer. The injunction, however, applies to anyone with notice of it. It would be a contempt of court to breach it.

The application was made without notice to any of those defendants because of a fear that the name would be published before the case could be properly argued.

The court decision confirms that the complaint alleges sexual offending. This means that, if charges were laid, the 18-year-old would get automatic name suppression as an alleged sex crime victim.

But that does not apply unless and until charges are laid. So the injunction was based on the tort of privacy.

The judge describes it as “at least a holding injunction”, which suggests that it may be reconsidered after submissions from the defendants. The judge also says it may need to be reconsidered if charges aren’t laid or the information somehow gets out into the public domain anyway.

The privacy arguments are addressed very briefly. Dobson J makes the obvious point that once the name is out, privacy will be lost. He says the plaintiff argues that he has a reasonable expectation of privacy relating to the police complaint, at least while it is being investigated. He recognises that there is a public interest argument here, but says “the larger element of public interest is in the fact of a complaint against a person in Mr Hughes’ former position, rather than the identity of the complainant.” He also notes that publication now would destroy the protection of statutory suppression available to the 18-year-old if sex charges are laid.

He also dispenses with the usual requirement that the plaintiff give an undertaking as to damages. This seems to be significant, because there is conflicting authority about whether he has the power to do so.

The judge explicitly allows the defendants to come back to court to argue for a variation or rescission “at short notice”.

Comment

I think this is probably one of the very rare occasions on which such an injunction can be justified (especially as a holding measure) and when it is fair enough to proceed without notice. But although the Hosking case was cited to support the injunction, there is no mention of the majority judges’ comments on the need for a high threshold for injunctions [para 158]:

… usually an injunction to restrain publication in the face of an alleged interference with privacy will only be available where there is compelling evidence of most highly offensive intended publicising of private information and there is little legitimate public concern in the information. In most cases, damages will be considered an adequate remedy.

This threshold is not uncontroversial. The Chief Justice has suggested that it may need to be lowered. In addition, it might be argued that damages would not be an appropriate remedy in this case. Still, this issue should really have been addressed before the injunction was ordered. Also, it’s arguable that the judge is too dismissive of the public interest arguments. A complainant’s identity may have a bearing on his credibility, and this complaint has had very significant political ramifications.

On the other hand, it’s interesting and commendable that the media have refrained from publishing the name so far. Surely they know it. Perhaps they sense the harm that it could do; perhaps they fear a lawsuit; perhaps they accept that the public interest in the name is limited; perhaps they are worried about audience backlash; perhaps they’re just doing the decent thing.

It will be interesting to see whether the media apply to have the order overturned, and to what extent it may be subverted on the internet.

Topics: Privacy tort | 47 Comments »

47 Responses to “18-year-old in Hughes incident awarded injunction”

  1. metanarratives Says:
    March 29th, 2011 at 1:36 pm

    Has the victim been advised charges are due to be laid??
    I very much doubt the media will apply to have this overturned – either on appeal or on account of a change in circumstances. The order doesn’t limit the media all that much – and responsible media would not have sought to publish the name. What the order provides is the media may still publish whatever they wish, just not identifying particulars (name, address) of the complainant. Commenting, outside the tort (which also has been applied to non-identifying information), on the provisions in the Criminal Justice Act (and the one provision in the Crimes Act), I think it’s something often overlooked– identifying particulars are typically supressed but the evidence can still come out.

    One the orders is:

    “that the Court file in respect of this proceeding may not be searched by any person without the leave of a Judge”

    Not too sure what added protection that order provides because permission of the judge is typically needed to the search any court file. Perhaps the purpose of the order was to prevent a registrar granting access. “Court file in respect of this proceeding” – proceeding in respect of the tort of privacy or the proceedings in respect of the laying of information in the District Court.

    Potential concern with order (d):

    “that in the first instance, and until further order of the Court, service of the Statement of Claim, interlocutory application, affidavit of A and Memorandum of Counsel be confined to the solicitors and counsel for the defendants; and ”

    Does this extent suppression beyond identifying particulars – what information was provided in these documents??

  2. Anita Says:
    March 29th, 2011 at 6:30 pm

    From a quick read through the injunction it looks like it only applies to the named parties and anyone else to whom the injunction is given. It talks about the need to progress without notice because of the fear that the name would be published during the period between the defendants receiving the papers and the injunction being decided.

    That made me wonder – if someone other than the defendants were to publish the name and then be given the injunction, would they then be required to unpublish it? Or just to not again publish it? I can see how it could be unpublished easily on a blog, but if a print media outlet that was not named were to publish it and then receive the injunction, would they be required to recall the publication?

    Also, it does seem counterintuitive that someone who will gain statutory protection once charges are filed has no as of right protection before it is file.

    If a media outlet were to run a story saying “It is anticipated that tomorrow police will lay charges against one of the teachers at [name and photo]’s school for sexually abusing this 10 year old” what would happen? I assume there would be massive public outcry, but would there be anyone able to prevent publication? Or discipline the media outlet?

  3. Anita Says:
    March 29th, 2011 at 6:33 pm

    As a complete aside, I was amused that A’s lawyers did not seem to think that Radio NZ needed to be injuncted 🙂 Is there a real reason (like injuncting the Crown?) or is it just a commentary on the perceived upstanding character of Radio NZ?

  4. Steven Says:
    March 30th, 2011 at 3:05 pm

    Metanarratives: the sealed file is surely the privacy case.

    The suppression surely applies to protect other details in the supporting affidavits and counsel’s memorandum. I’d expect others served with this order (and probably those who feel bound by it and want to challenge it) will duly be given access to these documents on application.

    Anita: If the information is available online, the publisher will have to take it down on receipt of notice of this order. I am sure the court would say that publication is continuous. A newspaper would have to stop the presses if notice were received in time, but wouldn’t have to recall editions that were already sold. They couldn’t re-publish. (But there may well be an argument then that continuation of the injunction is futile, and the judge may be sympathetic to an application to discharge it on those grounds).

    People have commented before on the gap that applies in the space between investigation and charge, where possible suppression interests can be destroyed. It also applies to newspapers who rush to publish a name after they get wind of a charge to head off a person’s application for name suppression. One judge has held (to journalists’ chagrin) that this may be a contempt of court. There would be a strong argument for contempt in your scenario, but the outcome wouldn’t be beyond doubt.

    I’m not sure that Radio NZ would count as part of the Crown for the purposes of the rule against granting injunctions against the Crown. (If so, it would follow that TVNZ would be immune too, I guess, though their underlying status is slightly different). But I suspect the “upstanding citizen” is the likely explanation. I see The Radio Network isn’t directly covered either, or NBR, or WhaleOil, or independent papers like the ODT, or magazines not owned by APN. I’d expect “A” will have drawn their attention to the order pretty promptly.

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