03/02/2020
Slater v Blomfield [2014] NZHC 2221; [2014] 3 NZLR 835 (12 September 2014)
[97] I do not think that the phrase “on a matter of public interest” adds a particular requirement to r 8.46 as it
is a hangover from an earlier requirement of the common law that fair comment must be on a matter of
public interest.41 It is an irrelevant relic from that earlier law. The authors of The Law of Torts in New
Zealand comment that there is room for argument that the requirement for “public interest” has survived the
Defamation Act 1992.42 However, they accept that it may be difficult now to argue to the contrary, and I take
that view.
[98] In 2004 there was also a further addition to the rule in that interrogatories could be permissible if
“necessary in the interests of justice”. This change appears to be a response to the observations of the Court
of Appeal in Lange v Atkinson.43 It was noted by the Court that the statement in Broadcasting Corporation
of New Zealand v Alex Harvey Industries Ltd that the newspaper rule applies unless there are special
circumstances warranting a departure from it, might require reconsideration because the basis for departure
was “too narrow”. 44 It was observed also that the absoluteness of r 285, the predecessor to r 8.46, might
require a re-assessment. The Australian High Court decision of John Fairfax & Sons Ltd v Cojuangco45 was
referred to, where it was held that a departure from the rule was permissible when it
was “necessary in the interests of justice”.
41
Awa v Independent News Auckland Ltd [1997] 3 NZLR 590 (CA) at 595.
42 Stephen
Todd (ed) The Law of Torts in New Zealand (6th ed, Brookers, Wellington, 2013) at
16.8.05.
43
44
Lange v Atkinson [2000] NZCA 95; [2000] 3 NZLR 385 (CA).
At [55].
45 John
Fairfax & Sons Ltd v Cojuangco [1988] HCA 54; (1988) 165 CLR 346.
[99] If as I consider was the case, the Rules Committee in amending r 8.46 in
2004 was responding to the observations in Lange v Atkinson there was a possible confusion as the John
Fairfax & Sons Ltd v Cojuangco decision related to the newspaper rule rather than the Australian equivalent
to r 285. Be that as it may, the addition of the phrase “necessary in the interests of justice” was a substantive
change, and the observations of the Australian High Court in John Fairfax & Sons Ltd v Cojuangco are
relevant to its interpretation.
[100] The phrase as used in r 8.46 has not been considered in New Zealand. In John Fairfax & Sons Ltd v
Cojuangco the Court quoted Broadcasting Corporation of New Zealand v Alex Harvey Industries Ltd and
other English and New Zealand authorities. These were not followed, and it was held that the media and
journalists have no public interest immunity from being required to disclose their sources of information
when such disclosure is necessary “in the interests of justice”.46 The
Court held:47
The point is that there is a paramount interest in the administration of justice which requires that cases be
tried by Courts on the relevant and admissible evidence.
[101] The Court went on to hold that the Courts have acted according to the principle that disclosure of the
source will not be required unless it is necessary in the interests of justice. The Court also held:48
The liability of the media and of journalists to disclose their sources of information in the interests of justice
is itself a valuable sanction which will encourage the media to exercise with due responsibility its great
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