My understanding is that the contempt allegation against Moodie arises in relation to him failing to comply with the (ex parte?) order for him to return the 3 copies of the report he obtained. Although it is being reported in some places that the Court “suppressed” the report, there does not appear to be any suppression orders in relation to the report or proceedings. However, the High Court has so far been declining requests to inspect to Court file – even to obtain the details of the order to return the document I understand the order was made by Justice William Young on (or around) 24 March 2005, although the basis seems to be unclear. Ordering the return of the document appears to be in the context of the Court’s supervision of the discovery process. However, some reports have indicated that Moodie obtained the document independent of the court proceedings (the application declined was, after all, to seek discovery of the report). Wild J noted that he was “unsure quite how, or from whom” Moodie obtained the report but indicated his view that he held it “in his capacity as counsel for the plaintiffs and for the purposes of this proceeding” and that rule 312 of the High Court Rules applied to its use and disclosure. How the document was obtained by Moodie appears to be central. If it was obtained through the discovery process, then the implied undertaking that the document wont be used for a collateral or ulterior purpose will apply. However, this rule only applies where documents are produced under compulsion in the discovery process (see Telstra NZ Ltd v Telecom NZ Ltd (1999) 14 PRNZ 108). There remains the question of whether the use of the document can be restrained as a breach of confidence. This is a slightly different beast though and, given the now apparent widespread availability of the report in the public domain, there is an argument that the document has now lost its confidential nature?
A couple of things since then: - The High Court has confirmed (orally) that there is no supression order. The order only requires the return of the copies of the report and Moodie to advise who holds copies of the document. - Moodie did apparently receive a copy of the report through the court process (offered on a confidential basis by the Crown to show him that there was nothing in it) but contests that he received it on a confidential basis - he says he specifically reserved the right to use it if it did contain significant things. - Apparently, the report circulating on the web is not the copy that Moodie received in discovery. It's said to be the copy that Ron Mark was sent anonomously. - Haven't had a chance to consider the Court Martial rules - but there is a prospect that these rules impact on the confidentiality and availability of the report.