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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.
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