A v Fairfax New Zealand Limited HC Wellington CIV-2011-485-569

[2011] NZHC 72

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF PLAINTIFF.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-569

BETWEEN  A Plaintiff

ANDFAIRFAX NEW ZEALAND LIMITED First Defendant

ANDAPN HOLDINGS NEW ZEALAND LIMITED

Second Defendant

ANDTELEVISION NEW ZEALAND LIMITED

Third Defendant

ANDMEDIAWORKS NEW ZEALAND LIMITED

Fourth Defendant

ANDDANYL MCLAUCHLAN Fifth Defendant

ANDDAVID FARRAR Sixth Defendant

On papers

Judgment:      29 March 2011

ADDENDUM TO JUDGMENT OF DOBSON J

[1]      In issuing my judgment on the plaintiff’s interlocutory application without

notice yesterday afternoon, I omitted to acknowledge one consideration relevant to the grant of an interim injunction.  That is the absence of an undertaking as to

A v FAIRFAX NEW ZEALAND LIMITED HC WN CIV-2011-485-569 [29 March 2011]

damages,  and A’s  acknowledgement  that  he  is  not  in  a  position  to  provide  an

undertaking that he could subsequently honour to any meaningful extent.

[2]      The  terms  of  High  Court  Rule  7.54  appear  to  be  mandatory  in  that  an applicant for an interlocutory injunction must file such an undertaking.   The Memorandum filed in support of A’s application referred to authority acknowledging that the Court nonetheless has a discretion.[1]  Quite properly, the Memorandum also acknowledged authority to the contrary effect in a decision of the same Judge, which found that the Court has no power to grant an injunction in the absence of such an undertaking.[2]

[1] Knight v European Language Academy (NZ) Ltd HC Auckland CIV-2008-404-2411,

14 November 2008 at [20].

[2] Craig v Hannah HC Whangarei CIV-2009-488-575, 16 September 2009 at [37].

[3]      Although it is only likely to be exercised in narrow circumstances, I am satisfied that the Court does have a discretion to dispense with the requirement notwithstanding the apparently mandatory terms of the rule.

[4]      The  Memorandum  of  Counsel  for  A  argues  the  prospect  of  the  media suffering significant damages is relatively remote.  It is unnecessary to express any view on whether, on any application to rescind or vary these orders, the discretion would  continue  to  be  exercised  in A’s  favour.    It  is  sufficient  at  this  stage  to acknowledge that the Court has jurisdiction to dispense with such an undertaking and to find that the overall merits of the case for at least a holding form of interim relief are sufficient to outweigh the concerns for the interests of the defendants arising from the absence of such an undertaking.  It is a further matter that would be

open for argument on any application to vary or rescind the orders made.

Solicitors:

Hazelton Law, Wellington for plaintiff

Dobson J