Starting principle open justice

Summary

The High Court dismissed Mr Musuku's application for an order that a judgment (where he was the applicant) not be published, or that his name, other identifying information and sensitive information in the judgment not be published. Woodhouse J held that the starting point is open justice and that more is required than to point to adverse consequences of publicity.

Facts

Mr Musuku unsuccessfully brought judicial review proceedings against the Commissioner of Inland Revenue ("the Commissioner") (Musuku v Commissioner of Inland Revenue [2015] NZHC 678).

Having lost, Mr Musuku sought an order either that the judgment not be published or that his name and other identifying and sensitive information in the judgment not be published.

Decision

Woodhouse J, in an oral judgment, first assessed the authorities and, citing the leading authority on name suppression in tax cases Muir v Commissioner of Inland Revenue ((2004) 21 NZTC 18,894 (CA)) ("Muir"), emphasised that the starting point is the principle of open justice and the Court does not start on the basis that there is a right to privacy which stands equally with that principle.

His Honour referred to two Court of Appeal decisions which appeared to differ on name suppression in civil cases:

• Clark v Attorney-General ([Name suppression] 17 PRNZ 554 (CA)) ("Clark") where it was held that exceptional circumstances are required for name suppression in a civil case, and
• Jay v Jay ([2014] NZCA 445, [2015] NZAR 861) ("Jay") where it was held that "extraordinary circumstances" are not required.

The Court of Appeal in Jay did not conclude that Clark should not be followed and Woodhouse J did not need to determine which decision should be followed to the extent there is a material difference. His Honour held that that the starting point is open justice, as was made clear in Muir, and that more is required than to point to adverse consequences of publicity.

One of Mr Musuku's concerns was the reference to the Commissioner's opinion under s 108(2) of the Tax Administration Act 1994 that his tax returns were fraudulent or wilfully misleading for the purposes of the time-bar not applying. Woodhouse J recognised that the allegation of fraud in civil proceedings is a serious matter and this was Mr Musuku's strongest point in terms of adverse consequences.

However, His Honour noted that Mr Musuku had chosen to bring the application for judicial review in the High Court where the general rule is no anonymity.

Additionally, there was no up-to-date evidence pointing to any particular adverse consequences of publicising Mr Musuku's identity, other than the broad inferences one might draw in respect of family members.

Counsel for Mr Musuku argued that publication of Mr Musuku's name was unnecessary and not something that the open justice principle requires. This argument was rejected on the basis that, as set out by the Court of Appeal in Clark, the Court should not engage in an evaluation of public interest factors and a grading of which matters should, or should not, be reported.

The application was dismissed.