There are regular media reports of the rich and famous seeking name suppression in legal proceedings. Just recently Joseph Parker lost a two year battle to keep his name kept secret in connection with drugs related charges, and a matter is currently before the Courts relating to a “high profile businessman” who is alleged to have sexually assaulted another male.
Given that these are the cases we mainly hear about, it could be assumed that there are two sets of rules, one for the privileged, and the other for the rest.
The fact is, however, that it is very difficult to obtain permanent name suppression. In criminal matters the grounds upon which an application can be made include extreme hardship, undue hardship caused to the victim of the offence, a real risk of prejudice to a fair trial, danger to the safety of any person and prejudice to the maintenance of the law.
There is a fundamental principle of open and transparent justice in New Zealand, such that these criteria are rigidly interpreted and applied. For example, in relation to claims of “extreme hardship” a very high level of hardship would need to be demonstrated, going beyond the usual embarrassment and damage that may ordinarily result from being named in legal proceedings.
In civil (non-criminal) matters, the test is similarly high. The leading case in this area related to a dispute about the estate of millionaire businessman Michael Erceg. His family sought orders preventing publication of the details of the amounts settled by his wife on various trusts, the identities of beneficiaries of the trusts, the amounts distributed to one of them, and the value of assets received by the deceased’s brother.
The grounds on which the orders were sought included that the issues related to private, family matters and publication could create or increase disharmony in the family and undermine confidentiality, may result in safety concerns for beneficiaries and may also attract unfair negative publicity.
The Supreme Court declined to make the orders sought finding that it was not enough that publication may cause embarrassment or be unwelcome, and that “specific adverse consequences” would need to be established to justify a departure from the fundamental rule of open justice. The Court noted that the “underlying rationale is that transparency of court proceedings maintains public confidence in the administration of justice by guarding against arbitrariness or partiality, and suspicion of arbitrariness or partiality, on the part of the courts”.
The Court referred to a case in which this principle was described as “an almost priceless inheritance”.
It is clear then, that the laws relating to name suppression have a long history and are fiercely guarded by the Courts. However, recently there have been increasing calls for a different approach to be taken in employment cases.
It is an unfortunate reality that, often regardless of whether they win or lose, employees who take their employers to the authority or Court are tainted and find it more difficult to obtain further employment. Employers regularly conduct google and employment law database searches of prospective employees, and it is very easy to find out whether a candidate has previously been involved in employment litigation. Further, in most cases where name suppression is sought, it is not granted, given the high threshold required.
This creates an unequal playing field in employment disputes and personal grievances. Employers know that the likely damage of being named in a public court decision to an employee’s reputation is a massive disincentive to going all the way in litigation. This places employees under significant pressure to settle, often cheaply.
It is also true that employers can be damaged by adverse court decisions, but the impact is likely to be less pervasive and long lasting.
For these reasons there is a strong case for reversing the assumption that name suppression will not be granted in employment cases, and mandating that where a party is successful in a claim, their identity will be kept confidential unless there are good reasons otherwise.
There is recent precedent for this approach being taken in the Tenancy Tribunal. From 11 February 2021 tenants and landlords can apply for their personal details to be removed from the Tenancy Tribunal records if they have been wholly or substantially successful in their claim. The Tribunal will then order that the name and any identifying details of that party are not published, unless it considers that publication is in the public interest or is justified due to other circumstances.
This law change was to stop tenants being “blacklisted” by prospective landlords, and to remove a significant disincentive for them in making a claim.
It is time to revisit this issue in an employment context as the issues faced by tenants and employees in this respect are similar, and there is seldom a compelling public interest reason for knowing that an employee has been successful in a claim against their employer.