The Supreme Court in Erceg v Erceg [2016] NZSC 135 recently explored the tension between non-publication orders and the principle of open justice.

An application was made to prevent publication of particular matters that could arise in oral argument during a prospective hearing. These matters included such details as the financial amounts, and the identities of family members receiving those amounts, distributed under two trusts that had been settled by the late Michael Erceg, the founder of Independent Liquor.

The Court noted that the principle of open justice was a principle of constitutional importance and was fundamental to the common law system of civil and criminal justice. Nonetheless, there were circumstances when this principle would be departed from to the extent necessary to serve the ends of justice. A classic example is the suppression of the identity of victims of sexual assault.

The Court affirmed that the New Zealand courts have the inherent power to make non-publication orders binding against the public at large. This was contrary to an earlier Privy Council decision that held the power must be conferred by legislation (see Independent Publishing Co Ltd v Attorney-General of Trinidad and Tobago [2004] UKPC 26, [2005] 1 AC 190 at [67]).

However, the threshold for success in obtaining non-publication orders is a high one. Prior decisions were noted in which the courts had declined to make non-publication or confidentiality orders for matters which would be:

  • Embarrassing (such as, a person being under financial pressure); or
  • Unwelcome (such as, the public airing of what were seen as private family matters).

The party seeking the order must show specific adverse consequences sufficient to justify an exception to the fundamental rule. An example where an order may be granted is for the protection of confidential information, such as trade secrets and commercially sensitive information.

The application was declined on the basis that it had not been demonstrated to the requisite high standard that the interests of justice required a departure from the usual principle of open justice.

See the Court's decision here.