Confidential information: TVNZ and the "Butcher Report" - Berryman v The Solicitor-General (No. 3)

The release by the Berrymans' lawyer of the New Zealand Defence Force's (NZDF) confidential "Butcher Report" into the construction of the suspension bridge which collapsed on his clients' farm led to this application by the NZDF. The NZDF sought an injunction restraining TVNZ from publishing the report or its contents - notwithstanding the fact that the Berrymans' lawyer had also posted the report on the internet so that it was "well and truly" in the public domain. As the Berrymans' lawyer appeared to have done so in contempt of Court, the Court faced a dilemma; should it restrain TVNZ's use of the report in order to uphold the administration of justice (and, in particular, the Court's discovery process which the Berrymans' lawyer appeared to have deliberately undermined) or should it recognise the reality that the material was now "out there" and allow TVNZ to use it for the purposes of its telecasts?

In what was alleged to be a "calculated, deliberate and extreme" breach of the Court's rules the Berrymans' counsel, Mr Moodie, was alleged to have provided a copy of the Butcher Report to TVNZ and to have posted a copy of it on the internet in breach of the Court's rules relating to discovery.

The Court was then faced with the submission from the NZDF that it (the Court) should grant the application in order to uphold the administration of civil justice with which it is entrusted and, in particular, the Court's discovery process which is fundamental to the just determination of civil proceedings. Wild J did not overlook the importance of this process saying:

If parties to a civil proceeding cannot rely on the protection the Court's discovery process gives against wider publicity than is necessary for the proper conduct and determination of the proceeding, then it will militate against full and frank discovery.

However, Wild J felt that the focus should really be on freedom of expression and that the real issue before the Court was whether TVNZ should be restrained from using the "Butcher Report", given that it was now in the public domain (and was not put there by TVNZ).

Wild J considered that the pivotal factor in deciding the application was the fact that the report was "well and truly" in the public domain because of its publication on the internet. That fact brought to an end the confidentiality which had attached to the Report.

The Court considered that it would be futile to restrain TVNZ from using the report when it was already in the public domain and to be "blind to the realities of the situation".

A further point of interest in the case was the comment Wild J made on the question of whether TVNZ and any other media outlet would be in contempt of Court if they used the report, now that it was in the public domain. Wild J indicated that the following passage in the leading judgment of Lord Nicholls in Attorney-General v Punch Ltd [2003] 1 All ER 289 at 301 indicated that they would not be:

Disclosure of information which is already fully and clearly in the public domain will not normally constitute contempt of court in the type of case now under discussion. Contempt lies in knowingly subverting the court's purpose in making its interlocutory order by doing acts having some significant and adverse effect on the administration of justice in the action in which the order is made. If the third party publishes information which is already fully and clearly in the public domain by reason of the acts of others, then the third party's act of publication does not have this effect. It does not have an adverse effect on the administration of justice in the action. The court's purpose in making its interlocutory order has, by then, already been defeated by the acts of others. This is so, whether those acts occurred before or after the court made its order.

The NZDF's application accordingly failed.

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