NEWSROOM NZ LTD v SOLICITOR-GENERAL [2022] NZCA 58

NEWSROOM NZ LTD v SOLICITOR-GENERAL [2022] NZCA 58 [15 March 2022]NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITHSS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA576/2021[2022] NZCA 58BETWEEN NEWSROOM NZ LTDAppellantAND SOLICITOR-GENERALRespondentCourt: Collins and Goddard JJCounsel: T J Castle and B J R Keith for AppellantK Laurenson for RespondentR K P Stewart for Applicant to InterveneJudgment:(On the papers)15 March 2022 at 3.00 pmJUDGMENT OF THE COURTA The application by the Media Freedom Committee to intervene in thisappeal is granted on the terms set out at paragraph [21] of this judgment.B There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)The appeal before this Court[1] In November 2020 the Solicitor-General applied for an interim injunctionrestraining the appellant (Newsroom) from publishing a video and associated articles.The publications related to four Māori children who were originally placed with aPākehā foster family in the South Island, and subsequently relocated to the foster careof whānau in the North Island. The Solicitor-General's application was made on thebasis that publication would contravene s 11B of the Family Court Act 1980, as thedecision to relocate the children had been made by the Family Court.[2] The application was initially heard on a without notice basis on the day it wasfiled. Cooke J granted the injunction on an interim basis.1 The application was thenheard on notice on 14 December 2020. The Judge granted an interim injunction.2[3] The Judge granted leave3 to Newsroom to bring an appeal to this Court fromthe High Court judgment, and from his subsequent costs judgment.4[4] It is common ground that the appeal raises issues of general importance inrelation to reporting by the media on the actions of Oranga Tamariki and other stateagencies responsible for children and other vulnerable persons.The application to intervene[5] The Media Freedom Committee (the Committee) has applied for leave tointervene in this appeal under r 48(1) of the Court of Appeal (Civil) Rules 2005(Rules).[6] The Committee is an unincorporated body representing mainstream newsmedia organisations including Newshub, Newsroom, NZME (whose brands includeNZ Herald and Newstalk ZB), Radio NZ, Stuff, the Spinoff and TVNZ. Its currentChair, Ms Alexander, describes the role of the Committee as "to protect the freedomof the press in New Zealand, to ensure media organisations can report withoutimpediment on legitimate news-gathering operations in the public interest".1 Solicitor-General v Newsroom NZ Ltd [2020] NZHC 3150.2 Solicitor-General v Newsroom NZ Ltd [2020] NZHC 3441, (2020) 25 PRNZ 622 [High Courtjudgment].3 Pursuant to s 56(3) of the Senior Courts Act 2016.4 Solicitor-General v Newsroom NZ Ltd [2021] NZHC 2229 [Leave judgment]. For the costsjudgment see Solicitor-General v Newsroom NZ Ltd [2021] NZHC 1034.[7] The Committee submits that the issues that will arise on this appeal in relationto what amounts to a "report of proceedings" and "identifying information" for thepurpose of statutory regimes that impose publication restrictions are matters of generaland wide public importance. The Committee believes it is able to provide anindependent perspective that may assist the Court in relation to:(a) the public interest in investigative journalism, including holding theState to account by exposing the misuse or incompetent exercise ofpower; and(b) the potential chilling effect on media reporting of a wide interpretationof the phrases "report of proceedings" and "particulars likely toidentify", in particular on reporting the actions of Oranga Tamariki andother state agencies.[8] The Committee's application for leave to intervene contemplated that theCommittee would provide written and oral submissions and expert affidavit evidence.However the Committee's submissions in support of the application say that theCommittee now seeks to assist the Court with focussed written and oral submissionsfrom counsel. The Committee does not propose to file expert evidence.The position of the parties[9] The application is supported by Newsroom (which is a member of theCommittee).[10] The Solicitor-General opposes the application. She accepts that the appealraises issues of general and wide importance. However she submits that the issuesraised are points of statutory interpretation which have been traversed by this Court inanalogous statutory contexts.5[11] The Solicitor-General does not accept that the Committee would provide anindependent perspective on the issues raised by the appeal. Newsroom is one of a5 Television New Zealand Ltd v Solicitor-General [2008] NZCA 519, [2009] NZFLR 390; andR v W [1998] 1 NZLR 35 (CA) at 40.small number of organisations comprising the Committee. The Committee is notsufficiently independent from Newsroom to justify it being heard separately.Any submissions that the Committee might wish to make could equally well be madeby Newsroom, which is represented by counsel and is able to assist the Court with fullargument. Granting leave for the Committee to intervene would only elongate thehearing and increase the costs of the litigation, without appreciable benefit.Relevant principles[12] The relevant principles for granting leave to intervene were summarised by thisCourt in Ngāti Whātua Ōrākei Trust v Attorney-General:6(a) The power is broad in nature but should be exercised with restraint toavoid the risk of expanding issues, elongation of hearings andincreasing the costs of litigation.(b) In an appeal involving issues of general and wide importance the courtmay grant leave when satisfied that it would be assisted bysubmissions from the intervener.(c) The fact that the case raises issues of principles transcending theparticular facts is not in itself sufficient to extend rights of hearingbeyond the parties.(d) The Court will take into account the relevant expertise or the uniqueposition of an intended intervener as well as the impact of theintervention on appeal.(Footnotes omitted.)Discussion[13] As already mentioned, it is common ground that the appeal involves matters ofgeneral importance. The issues raised by the appeal in relation to the operation ofs 11B of the Family Court Act are at least to some extent novel. The decisions of thisCourt that the Solicitor-General describes as analogous were concerned with statutoryprovisions that have since been repealed and replaced. The replacement provisions,including s 11B of the Family Court Act, strike a different balance in relation toopenness of Family Court proceedings.76 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZCA 183, [2017] NZAR 627 at [11];Borrowdale v Director-General of Health [2021] NZCA 33 at [2].7 As noted by Cooke J in the High Court judgment, above n 2, at [38].[14] We recognise that the Committee is not wholly independent from the appellant,Newsroom. Nonetheless, the membership of the Committee includes a number ofmainstream media organisations with considerable experience and expertise in thisdomain, which are themselves independent from Newsroom. And the way in whichthey are able to report on matters of this kind will be directly affected by the outcomeof Newsroom's appeal.[15] We therefore accept that the Court may be assisted by submissions from theCommittee, informed by the collective experience and expertise of its members otherthan Newsroom.[16] Provided the Committee's participation is appropriately confined, there is littlerisk of an expansion of the issues, a material increase in the time required for thehearing, or significantly increased costs.[17] We therefore grant leave to the Committee to file written submissions.The Committee will need to ensure that those submissions do not unnecessarilyduplicate the submissions of the appellant. We will require the appellant to file itssubmissions 30 working days before the hearing, which is 5 working days earlier thanusual. The Committee may then file its submissions 25 working days before thehearing. That timetable will minimise the risk of duplication, and ensure that theSolicitor-General has sufficient time to respond to both sets of submissions.[18] The Court can then decide, at the hearing, whether it will be assisted by oralsubmissions from counsel for the Committee.[19] It would not be appropriate for the Committee's intervention to expose theparties, and in particular the Solicitor-General, to a claim for costs by the Committee.It will be a condition of leave that the Committee is not entitled to seek an award ofcosts.Result[20] The application by the Committee to intervene is granted.[21] We make the following directions:(a) Newsroom must file its submissions not later than 30 working daysbefore the hearing date.(b) The Committee may file written submissions not later than 25 workingdays before the hearing date. Those written submissions must complywith r 40E of the Rules. The Committee must ensure that itssubmissions do not unnecessarily duplicate the submissions ofNewsroom.(c) Counsel for the Committee may appear at the hearing of the appeal.The Court will decide at the hearing whether it will be assisted by oralsubmissions from counsel for the Committee.(d) The Committee is not entitled to seek costs in connection with itsparticipation in the appeal.[22] There is no order as to costs.Solicitors:Chris Ritchie Law, Wellington for AppellantCrown Law Office, Wellington for RespondentDarroch Forrest Lawyers, Wellington for Applicant to Intervene