F & ANOR v CUSTOMS OFFICER X & ORS [2019] NZHC 1141 .

F & ANOR v CUSTOMS OFFICER X & ORS [2019] NZHC 1141 [23 May 2019].NOTE: THE NAMES OF THE APPLICANT/PROPOSED FIRST PLAINTIFF,THE PROPOSED SECOND PLAINTIFF, THE PROPOSED FIRSTDEFENDANT AND THE PROPOSED SECOND DEFENDANT HAVE BEENANONYMISED.IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2019-409-215[2019] NZHC 1141IN THE MATTER of an application to appoint a litigationguardianBETWEEN FApplicant/Proposed First PlaintiffAND S (by F as litigation guardian)Proposed Second PlaintiffAND UNIDENTIFIED CUSTOMS OFFICER XProposed First DefendantAND UNIDENTIFIED POLICE CONSTABLE YProposed Second DefendantAND ATTORNEY-GENERAL (on behalf of theComptroller of Customs)Proposed Third DefendantAND COMMISSIONER OF POLICEProposed Fourth DefendantHearing: (Determined on the Papers)Counsel: N J Hansen, G J X McCoy and S P H Elliott forApplicant/Proposed First DefendantJudgment: 23 May 2019JUDGMENT OF ASSOCIATE JUDGE LESTER[1] F, prior to the commencement of the substantive proceeding which he seeks tobring on behalf of himself and his infant son, seeks three orders.[2] The first is that he be appointed litigation guardian for his son. The second isprohibiting publication of the names and/or identifying particulars of himself, his son,his wife, or the country to which his wife has taken their son, and the third is that theCourt file not be searched without the leave of the Court.Litigation Guardian[3] F's son S is nine years old. The application explains that on 1 February 2019,F obtained an order under s 77 of the Care of Children Act 2004 prohibiting S frombeing removed from New Zealand until further order of the Court. A border alert wasregistered with the New Zealand Police and Customs notifying them of the order.[4] Notwithstanding the order, F says that on 7 February 2019 S's mother, waspermitted by Police and Customs Officers at Christchurch International Airport to passthrough border control with S and to remove him from New Zealand. This wasnotwithstanding the border order having been activated and the Officers havingknowledge of the order.[5] F wishes to bring proceedings in his own name on behalf of S in relation to thisevent.[6] As a minor, S must be represented by a litigation guardian under r 4.31 of theHigh Court Rules 2016.[7] The commentary in McGechan on Procedure records the need for the litigationguardian to be appointed before the proceedings are commenced; hence the presentapplication.11 McGechan on Procedure (online ed, Thomson Reuters) at [HR4.31.03].[8] Rule 4.35(2) provides that the Court may appoint a litigation guardian wherethe litigation guardian is able fairly and competently to conduct proceedings on behalfof the minor, does not have interests adverse to those of the minor, and consents tobeing a litigation guardian.[9] Given the circumstances described in the application, I accept that in respectof the prospective claims F's interests and those of his son align.[10] I also accept that F is able to fairly and competently conduct the proceeding.[11] Rule 4.36 requires the application to be served on the person for whom thelitigation guardian is to be appointed unless the Court directs otherwise. Given F'sson is nine years old and given the circumstances of him being out of the country,service under r 4.36 is not necessary.Suppression Orders[12] F's son has been taken to a country which is not a party to the HagueConvention on the Civil Aspects of International Child Abduction.[13] F's concern is that the prospects of him recovering S from overseas aretherefore slight. He is concerned that any publication of the details of this case or theindividuals involved is likely to prejudice the slight chance he has of recovering S.Suppression in civil cases - principles[14] In Y v Attorney-General, the Court of Appeal gave guidance about theprinciples to be applied when considering suppression in civil cases.2 Ten days later,the Supreme Court released Erceg v Erceg,3 which was less focused on providingguidance for other cases but was, in large part, consistent with Y v Attorney-General.Neither case referred to the other.2 Y v Attorney-General [2016] NZCA 474, [2016] NZFLR 911.3 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310.[15] Woodhouse J, in Commissioner of Police v F (L) C, compiled a convenient listof the principles arising from the two cases:4[15] The statements of principle may be summarised as follows:(a) The starting point is the principle of open justice. This leadsto a presumption of disclosure of all aspects of civil courtproceedings.5(b) There are, nevertheless, circumstances in which the interestsof justice require that the general rule of open justice bedeparted from, but only to the extent necessary to serve theends of justice.6(c) In proceedings heard in open court, the court may exercise itsinherent power to make non-publication orders binding on thepublic at large.7(d) The power to order non-publication is discretionary.8(e) There is no onus on the applicant for the non-publicationorder.9(f) What the party seeking the order must show is specificadverse consequences that are sufficient to justify anexception to the fundamental rule, but the standard, orthreshold, is a high one.10(g) The correct approach requires the court to strike a balancebetween open justice considerations and the interests of theparty who seeks suppression.114 Commissioner of Police v F (L) C [2016] NZHC 2852.5 Erceg, above n 3, at [2]; Y v Attorney-General, above n 2, at [25]-[28].6 Erceg, above n 3, at [3].7 Erceg, above n 3, at [4]-[7]. The Supreme Court in Erceg, at fn 6, said that it preferred the term"inherent power" to "inherent jurisdiction".8 Rowley v Commissioner of Inland Revenue [2011] NZSC 76, (2011) NZTC 23-052 at [5];Y v Attorney-General, above n 2, at [23]-[24] and fn 27.9 Erceg, above n 3, at [13]; Y v Attorney-General, above n 2, at [29], both approving ASBBank Ltd v AB [2010] 3 NZLR 427 (HC) at [14].10 Erceg, above n 3, at [13]; Y v Attorney-General, above n 2, at [30].11 Y v Attorney-General, above n 2, at [31]. The Court of Appeal noted: "We have drawn that passagefrom the Supreme Court's judgment in Hart v Standards Committee (No 1) of the New ZealandLaw Society [2012] NZSC 4 at [3]. The Supreme Court had earlier supported the same balancingapproach in Rowley v Commissioner of Inland Revenue, above n 8, at [6]-[7]. As this Courtobserved in McIntosh v Fisk [2015] NZCA 247, [2015] NZAR 1189 at [20], in the context of thisbalancing, 'the open justice principle is not an article of faith, never to be departed from'."[16] More recently, in A Ltd v C Ltd, Mander J summarised the principles fromY v Attorney-General without reference to Erceg:12[9] The power to suppress the names and identifying particulars of partiesand witnesses involved in civil proceedings, or other details of such cases, isfound in the inherent jurisdiction of this Court. The starting point inapproaching the issue is the principle of open justice and the related freedomof expression guaranteed by s 14 of the New Zealand Bill of Rights Act 1990.13Together, those two tenets create a presumption of disclosure that is to applyin respect of civil court proceedings.14[10] Because of the importance of the principle of open justice, a court willneed to have sound reasons for finding that the presumption favouringpublication is displaced. However, there is no onus or burden on an applicantseeking suppression to justify that step. The question is simply whether thecircumstances justify an exception to the fundamental principle of openness.15No particular threshold is required to be met.[11] In Y v Attorney-General, the Court of Appeal endorsed its earlierapproach in Jay v Jay, that "extraordinary circumstances" are not required tojustify suppression in a civil case.16 However, the threshold remains a highone because any suppression order necessarily derogates from the principle ofopen justice and the right to freedom of expression.17 The correct approachrequires the Court to "strike a balance between open justice considerations andthe interests of the party who seeks suppression".18[12] Because of the "limitless variety" of civil cases, each of which will befactually different from the other, the balancing exercise must necessarilybe case dependent.19 Sometimes there will be a significant and legitimatepublic interest in knowing the names of the people involved in a case, be theythe parties or witnesses, or of knowing about the detail of the case. Inillustrating that point, the Court of Appeal, in Y v Attorney-General, referredto the usually high public interest in knowing the names of professionalpractitioners facing charges in disciplinary proceedings.20 That it is to becompared with the likely limited legitimate public interest in knowing thename or identifying particulars of parties or of details of cases where theinformation is intensely private or personal or is considered confidential orcommercially sensitive.21[13] Further considerations to be taken into account are how central theinformation sought to be suppressed is to understanding the nature of theproceeding and what it is that the Court has decided. There will be a strongerpresumption favouring disclosure where such detail is required in order for12 A Ltd v C Ltd [2018] NZHC 3433.13 Y v Attorney-General, above n 2, at [25].14 At [26].15 At [29], citing with approval Harrison J in ASB Bank Ltd v AB, above n 9, at [12] and [14].16 Y v Attorney-General, above n 2, at [30]; Jay v Jay [2014] NZCA 445, [2015] NZAR 861 at [118].17 Y v Attorney-General, above n 2, at [30], citing with approval McIntosh v Fisk, above n 11, at [20].18 Y v Attorney-General, above n 21, at [31], citing X v Standards Committee (No 1) of theNew Zealand Law Society [2011] NZCA 676 at [18].19 Y v Attorney-General, above n 2, at [32].20 At [32].21 At [33].the public to understand what the Court has decided and why.22 Differentconsiderations will also apply depending upon what is sought to be suppressedand the stage which the proceeding has reached. Suppression is more likely tobe granted on an interim basis at an interlocutory stage of a proceeding. TheCourt will likely be better placed to assess the need for permanent suppressionafter it becomes familiar with the particular details of the case at trial.23[17] In short, the Court can suppress the names and identifying particulars of peopleinvolved in civil cases. This power stems from the Court's inherent jurisdiction. TheCourt must strike a balance between fundamental open justice considerations andthe interests of the party seeking suppression.Suppression of the name of the child[18] I cannot find any direct authority for the proposition that children's names incivil proceedings should be suppressed by default. Family Court proceedings andyouth justice proceedings generally cannot be reported with identifying informationof children.24 While this proceeding is not in the Family Court, it is closely related toa family law issue. I consider that suppressing S's name is appropriate. There islimited legitimate public interest in his identity. Nor is disclosure of his name requiredto understand the issues the Court will be asked to determine.Suppression of names of the parents and country Q[19] Name suppression (or non-publication orders) should not be granted merely onthe grounds that "the proceedings deal with matters that some family members wouldprefer to be kept private", or that family relationships will be strained.25 It is commonnow that the names of the parties in relationship property proceedings are notsuppressed, even though that would often allow people to identify their minor children.[20] If concerns about the safety and security of family members are sufficientlygrave, that may justify an order.2622 At [34].23 At [34].24 Family Court Act 1980, s 11B; Oranga Tamariki Act 1989, s 438.25 Erceg, above n 3, at [21](a).26 Erceg, above n 3, at [21](c).[21] Here, F seeks suppression as he is concerned that publication of the details ofthe case, the people involved or that he intends to continue to take steps to recover Sfrom country Q, may mean M or the Government of Q will hear of it and take steps toput S out of reach.[22] It makes sense to make the requested suppression orders on an interim basis,while the wider context of the case is established.27 F's concern about M being alertedto attempts to recover S legally appear legitimate. This is a case where the proceedingcan be commenced with the suppression orders sought being made but with leavereserved for the defendants to apply for this to be revisited.Orders[23] The following orders are made:(1) There is an order appointing the applicant F as litigation guardian forhis son S.(2) There is an order dispensing with service on S under r 4.36 of theHigh Court Rules.(3) There is an order prohibiting publication of the names and/oridentifying particulars of the applicant, his son S, the mother of S, andthe country to which S has been taken.(4) There is an order that this matter not be searched without leave of theCourt.27 As discussed in Y v Attorney-General, above n 2, at [34] and in A Ltd v C Ltd, above n 12, at [13].(5) Leave is reserved to the defendants to apply on notice to review orders(3) and (4) above._________________________________________Associate Judge LesterSolicitors:Hansen Law, Christchurch (for Applicant/ Proposed First Plaintiff)Copy to counsel: Dr G McCoy QC, Christchurch and S Elliott, Barrister, Auckland