SELLMAN v SLATER [2021] NZHC 752

SELLMAN v SLATER [2021] NZHC 752

Given the high public interest, the extent of prior interlocutory adjudication and that a judge‑alone trial had commenced, the public interest in transparency outweighed general privacy/confidentiality concerns as to the parties' affidavit material; inspection of affidavits filed by the parties was therefore permitted except for affidavits containing suppressed medical details of the first defendant and specified medical affidavits, but access to the affidavit and materials filed by non‑party British American Tobacco (NZ) Limited was declined because BAT was a peripheral non‑party whose application was not argued or determined and whose documents were not essential to the public...

Citation
[2021] NZHC 752
Parties
First Plaintiff: JOHN DOUGLAS SELLMAN; Second Plaintiff: BOYD ANTHONY SWINBURN; Third Plaintiff: SHANE KAWENATA FREDERICK BRADBROOK; First Defendant: CAMERON SLATER; Second Defendant: CARRICK DOUGLAS MONTROSE GRAHAM; Third Defendant: FACILITATE COMMUNICATIONS LIMITED; Fourth Defendant (discontinued): KATHERINE RICH; Fifth Defendant (discontinued): NEW ZEALAND FOOD AND GROCERY COUNCIL INC
Court
High Court
Jurisdiction
New Zealand
Judgment Date
9 April 2021
Procedural Posture
Defamation (civil) / Access to Court Documents Application After Settlement on First Day of Judge‑alone Trial (post‑substantive Hearing Activity)
Outcome
Access granted in part: inspection of parties' affidavits and exhibits allowed subject to exclusion of specified medical affidavits and suppression order; access to BAT materials refused
Legal Topics
Open Justice, Senior Courts (access to Court Documents) Rules 2017, Discovery, Subpoena, Non‑party Confidentiality, Public Interest Reporting
Defamation Access to Court Documents Privacy and Confidentiality Civil Procedure Public Health Policy Litigation Open Justice Senior Courts (access to Court Documents) Rules 2017 Discovery +3 more

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Parties

JOHN DOUGLAS SELLMAN

First Plaintiff

BOYD ANTHONY SWINBURN

Second Plaintiff

SHANE KAWENATA FREDERICK BRADBROOK

Third Plaintiff

CAMERON SLATER

First Defendant

CARRICK DOUGLAS MONTROSE GRAHAM

Second Defendant

FACILITATE COMMUNICATIONS LIMITED

Third Defendant

KATHERINE RICH

Fourth Defendant (discontinued)

NEW ZEALAND FOOD AND GROCERY COUNCIL INC

Fifth Defendant (discontinued)

Procedural Posture

Defamation (civil) / Access to Court Documents Application After Settlement on First Day of Judge‑alone Trial (post‑substantive Hearing Activity)

Legal Issues

  1. 1 Whether media should be granted access to interlocutory affidavits and exhibits filed in a defamation proceeding that settled on day one of trial
  2. 2 Whether access should extend to affidavit/material filed by a non‑party (British American Tobacco (NZ) Limited)
  3. 3 How to balance principle of open justice against privacy, confidentiality, and orderly administration of justice at the relevant procedural stage

Ratio Decidendi

Given the high public interest, the extent of prior interlocutory adjudication and that a judge‑alone trial had commenced, the public interest in transparency outweighed general privacy/confidentiality concerns as to the parties' affidavit material; inspection of affidavits filed by the parties was therefore permitted except for affidavits containing suppressed medical details of the first defendant and specified medical affidavits, but access to the affidavit and materials filed by non‑party British American Tobacco (NZ) Limited was declined because BAT was a peripheral non‑party whose application was not argued or determined and whose documents were not essential to the public...

Court Disposition

Access granted in part: inspection of parties' affidavits and exhibits allowed subject to exclusion of specified medical affidavits and suppression order; access to BAT materials refused

Orders

  • Grant inspection of affidavits filed in this proceeding by the parties except the affidavits of Juana Atkins dated 12 December 2018 and 14 August 2019 and the affidavit of Dr David Abernathy dated 15 December 2018, and except any affidavit containing medical details relating to Cameron Slater; the suppression order...
  • Deny inspection of the affidavit and any other material filed on behalf of British American Tobacco (New Zealand) Limited