Judge Smith on Media – by Karen Davis

Two weeks, two cases involving District Health Boards.

On 8 June Employment Court Judge Smith granted permission for NZME to record proceedings, subject to certain guidelines, with the audio and video said to be likely to be used by NZ Herald and Newstalk ZB.

The parties are Dr Humphrey who was Canterbury Medical Officer of Health, and Canterbury District Health Board (CDHB) which dismissed him. Dr Humphrey seeks reinstatement.

The high profile of the applicant was probably the reason NZME has decided it’s worth the trouble to make the application. Dr Humphrey took a neutral position and CDHB opposed it.

We’re sure NZME will do a fine job of reporting on this matter and we don’t know if there will be a need for us to. But we are interested in Judge Smith’s decision and the reasons given for it, because there is a general lack of previous media applications of this nature. Paragraph 8 says:

[8] The relevant guidelines for this decision are:

  • (a) The need for a fair trial.

  • (b) The desirability of open justice.

  • (c) The principle that media have an important role in the reporting of trials as the “eyes and ears of the public”.

  • (d) The interests and reasonable concerns and perceptions of the parties and witnesses.

[9] ...conditions are designed to recognise the importance of the role of the media, and support open justice, while ensuring the rights of the parties to a fair trail are not compromised. There are adequate safeguards for witnesses...

Being a media organisation ourselves, we can’t complain!

The following week Judge Smith sat in Tauranga for a three day hearing: Shaw v Bay of Plenty District Health Board (BOP DHB). This was for two quite ancient personal grievance claims, for unjustified disadvantage and unjustified dismissal. A decision will probably be some months away.

Shaw v BOP DHB would probably have escaped our attention but for the Strategic Litigation Against Public Participation (SLAPP) brought by the DHB against Ms Shaw and her then Advocate Mr Halse in late 2018. We have published several updates on the SLAPP which is currently before Judge Corkill, although not so much about the Personal Grievance claims from which the SLAPP arose.

At the hearing, Leighton Associates’ reporting of the SLAPP was raised by counsel for BOP DHB, wanting to know what, if any, contribution Ms Shaw had had towards publicity of her own case. This was the wrong set of proceedings to raise it in, because Judge Smith was hearing evidence on the Personal Grievances only, and had nothing to do with the SLAPP.

The discussion of Leighton Associates was brief, but three researcher-reporters including myself were named. We believe this was an attempt to weaponise media against a party and we have sent the counsel concerned a Cease and Desist letter. Now that we know Judge Smith took a pro-media (or anti-suppression) position in Humphrey v CDHB, and then the following week heard an attempt to weaponise media organisations Radio NZ and Leighton Associates against Ms Shaw, how do you think that would have gone down?

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