Marfart v Television New Zealand no.2 CA92/05

IN THE COURT OF APPEAL OF NEW ZEALAND

CA92/05

BETWEEN ALAIN MICHAEL YVES MAFART AND DOMINIQUE ANGELA FRANCOISE PRIEUR
Appellants

AND TELEVISION NEW ZEALAND LIMITED
Respondent

Court: Hammond, O'Regan and Arnold JJ Counsel: S J Katz and H N McIntosh for Appellants
W Akel and H Wild for Respondent

Judgment: 10 August 2006 at 10 am

JUDGMENT OF THE COURT (No. 2)

Pursuant to r 30(2) of the Supreme Court Rules 2004, we grant the following interim relief:

1. There will be a stay of execution of this Court’s judgment of

7 August 2006 (and, if necessary as a matter of caution) the judgment of Simon France J dated 23 May 2005, for a period of
14 days from the date of this judgment. No further broadcast is permitted during that period.

2. During that period:

(a) Simpson Grierson are to hold the tapes in issue in safe keeping, for the Court.

MAFART & PRIEUR V TVNZ LTD (NO. 2) CA CA92/05 10 August 2006

(b) The video extract of the events in question is to be withdrawn from the respondent’s website.

3.Any application for a variation of these orders is to be made to the Supreme Court, on notice.

4.The foregoing is without prejudice to Mr Akel’s argument that there is no extant order of the Supreme Court.

5. Leave to apply is reserved.

REASONS OF THE COURT

(Given by Hammond J)

[1] On 7 August 2006 this Court dismissed an appeal from a decision of Simon France J in the High Court, relating to an application to search and copy a Court file, as to certain video tapes.

[2] After the decision was delivered, the respondent located and broadcast the footage in which it was interested from the video tapes, and posted links on its website to the footage.

[3] No application was made to this Court at the hearing before us, or at the time of delivery of the judgment (which was in open court), for a stay of execution. Nor were any circumstances drawn to our attention which might have suggested that there was a stay in place, in the Supreme Court of New Zealand.

[4] An application for a stay has now been made to this Court on the footing that it is said that the panel in the Supreme Court sitting to deliver the Supreme Court judgment in Mafart and Prieur v Television New Zealand Ltd [2006] NZSC 33 had

indicated, orally, that there would be a stay. So far as we have been able to ascertain, there is no minute or other record of that determination. Counsel attending for TVNZ Ltd in the Supreme Court on that occasion raises some doubt as to what precisely was then said.

[5] This Court is therefore faced with a disputed assertion that an order for a stay of an ongoing character was made in the Supreme Court. But it is presently unable to, even if it were appropriate, determine that issue. Those circumstances alone, in our view, warrant the granting of interim relief, to enable the position to be clarified in the Supreme Court. We cannot stay the order permitting access to, and copying of the tapes, as that has now occurred. The orders we propose to make reflect that reality.

[6] Accordingly, pursuant to r 30(2) of the Supreme Court Rules 2004, we grant the following interim relief:

1. There will be a stay of execution of this Court’s judgment of 7 August

2006 (and, if necessary as a matter of caution) the judgment of Simon France J dated 23 May 2005, for a period of 14 days from the date of this judgment. No further broadcast is permitted during that period.

2. During that period:

(a) Simpson Grierson are to hold the tapes in issue in safe keeping, for the Court.

(b) The video extract of the events in question is to be withdrawn from the respondent’s website .

3. Any application for a variation of these orders is to be made to the

Supreme Court, on notice.

4. The foregoing is without prejudice to Mr Akel’s argument that there is no extant order of the Supreme Court.

5. We reserve leave to apply on short notice if there are any difficulties in implementing these interim orders.

Solicitors:
Russell McVeagh, Auckland for Appellants
Simpson Grierson, Auckland for Respondent

The Court of Appeal of New Zealand considered an appeal brought by Alain Michael Yves Mafart and Dominique Angela Francoise Prieur against Television New Zealand Limited. The appeal sought to overturn a decision by Simon France J in the High Court that allowed the respondent to search and copy certain video tapes. The appellants argued that the decision infringed upon their privacy and that the respondent had already broadcasted the footage in question, contravening the court's earlier orders.

The court was tasked with determining whether to grant an interim stay of execution of its earlier judgment, and the judgment of Simon France J, to prevent further broadcasting of the footage by the respondent. This was necessitated by the respondent's actions in locating and broadcasting the footage after the Court of Appeal's decision was delivered. The court had to consider whether there was a valid order for a stay from the Supreme Court, as suggested by counsel for the respondent, but no such order was evident in the record. The court also had to decide whether it could stay the order permitting access to, and copying of, the tapes given that this had already occurred.

The Court of Appeal decided to grant an interim stay of execution of its judgment and the earlier judgment of Simon France J for 14 days. The stay was necessary to allow the Supreme Court to clarify whether there was a stay in place. During this period, Simpson Grierson was to hold the tapes in safekeeping for the Court, and the video extract from the respondent's website was to be withdrawn. The court also made it clear that any application for a variation of these orders would need to be made to the Supreme Court on notice. The court reserved the right to grant leave to apply on short notice if there were any difficulties in implementing these interim orders.

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