19 April 2005

Berryman bridge - contempt?

Someone posed the question whether someone (a member of the public) was party to contempt if they referred to or downloaded the Butcher report. My analysis (from NZMLJ) below:

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.

2 comments:

teegee said...

I was the person who posted the "Butcher report " on the 'net. The copy I received was NOT one of the three Rob Moodie was ordered to return.
The copy I got was signed by LT Col Patchet (a female.) She was also the Army officer who visited the Berryman farm after the collapse. She was seeking a copy of the Works Consultancy report into the bridge collapse. The Army had "lost" their copy.

Anonymous said...

I should have also said that the copy I
got originated from the NZ First Party Parliamentary fax machine. This is verified by the fax number top left corner of each page.
Refer http://homepages.paradise.net.nz/teegee/

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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