First shots exchanged in legal battle

By JOSIE CLARKE

The billionaire businessman in the name suppression row is prepared to battle through the courts to keep his identity from being published in the Herald.

The first shots in what could be a long legal battle were fired in the Otahuhu District Court yesterday.

The man's lawyer, Marie Dyhrberg, said the case had the potential to change the law.

Her client had instructed her to oppose the Herald whether the case was heard in the district or the High Court.

The legal manoeuvring over the name suppression came down to one point yesterday: do the media have the right to be heard on the issue in the district court?

In what could be a groundbreaking case, the Herald has gone to court to overturn the suppression order Judge David Harvey imposed in the Otahuhu District Court last Friday.

The Herald's lawyer, Alan Ringwood, asked that the application to discharge the name suppression be heard by Judge Harvey when he returns from holiday next week.

In a day dominated by debates over legal procedure, Judge Stan Thorburn asked Mr Ringwood to clarify whether the Herald was legally able to apply to the district court to discharge the name suppression order, and whether the court could actually hear the application.

Mr Ringwood said the issue was whether the Herald had a legitimate interest in publishing the man's name, and was not a "mere busybody."

He said the media were legally allowed to apply to overturn a name suppression order.

Although there was some confusion over whether the Herald should have applied to the High Court to overturn the suppression, Mr Ringwood said the correct procedure was for the Herald to apply to the district court to have Judge Harvey reconsider the matter.

He referred to a similar application by media organisations against a gagging writ in the case of cancer patient Liam Williams-Holloway.

In that case the application to discharge the name suppression was heard by the same judge who made the order.

It was only once the application had been heard in the district court that rights of appeal or review in the High Court arose.

Marie Dyhrberg argued that while the media had a legitimate interest in the case they did not have the right to be heard in a district court when a suppression order had been made.

She said the Herald had failed to establish a lawful basis for the media to be heard in the district court.

The Herald should apply for a judicial review of the name suppression in the High Court, she said, but added she would oppose any application.

Marie Dyhrberg said the argument was about procedure.

"It has nothing to do with the merits of the case."

After listening to both parties, Judge Thorburn told the court he would take a short break.

But 15 minutes later a court attendant said Judge Thorburn had adjourned the case for the evening and would return to give his judgment at 9 am today.

Speaking after the hearing, Marie Dyhrberg said her client had instructed her to defend him against the Herald's application whether it was held in the district court or High Court.

The case had the potential to "take time," she said.

Marie Dyhrberg declined to answer why she continued to fight for name suppression when the man's name had already been published on the Internet.

"Firstly, it is not in my instructions to disclose that, and secondly, that may well be subject to submissions in a later hearing."

Marie Dyhrberg said the case had the potential to change the law.

"This case has unearthed a much wider legal question of the role of the media in the district court, which does not appear to have been argued in courts before.

"So the outcome has a wider application for the development of law."