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Dinosaurs and defamation: Supreme Court denies leave to appeal a decision refusing non-publication

8 Mar 2024

| Author: Vivian Mitchell

Supreme Court – leave application – defamation – name suppression –non-publication order – request to reinstate original order – Erceg v Erceg [2016] NZSC 135

Peter T Rex LLC v NZME Publishing Ltd [2024] NZSC 10 per Glazebrook, Ellen France and Kós JJ.

 

The first and second applicants, Peter T Rex LLC and Barbara T Rex LLC, own two Tyrannosaurus rex skeletons displayed at Tāmaki Paenga Hira Auckland War Memorial Museum. The third applicant, 3A, has managerial responsibilities over the other applicants.

In early 2023, a Dutch blogger alleged the skeletons were not legitimate or real because cast elements had been used in the displays. Aspersions were also cast on the role and motives of some of the individuals and entities concerned.

The applicants couldn’t obtain an assurance from NZME that it would not publish a story about the issues raised in the blog. They applied for an injunction to restrain NZME from publishing the allegedly defamatory statements. Pending the hearing, the applicants also sought a non-publication order. The terms of this order were made by the High Court (HC) and were the subject of a partially successful appeal by the applicants to the Court of Appeal (CA). As a result, publication of 3A’s name, address and identifying particulars has been prohibited pending further order of the HC.

The applicants sought leave to appeal to the Supreme Court. They claimed the CA was wrong not to keep secret other details that would enable identifying 3A by the community.

The applicants asked for the original order to be reinstated in respect of:

  • the names of the first and second applicants;
  • the fact that the dispute involved dinosaur specimens;
  • the fact that the dispute involved the museum; and
  • because publication of these aspects would identify 3A to, at least, a subset of the public and would undermine the part of the order that was reinstated by the CA.

The applicants asserted these aspects raised issues about “jigsaw identification” and the “mosaic effect” of identifying parties where it was possible to piece information in the public domain together.

 

Legal reasoning

The Supreme Court (SC) referred to the case of Erceg v Erceg [2016] NZSC 135. The CA determined the test in Erceg was not met as it appeared unlikely that members of the public could find out the identity of 3A. However, the CA permitted 3A to maintain his anonymity pending the substantive hearing. This would give 3A a chance to fully explain any potentially significant adverse consequences of publishing his name.

The SC found the proposed appeal would largely repeat the arguments in the CA. The applicants were challenging the application of the Erceg principles to a set of very particular facts. No question of general or public importance accordingly arose.

 

Applicable Principles: defamation – interim name suppression – non-publication order – matters of general or public importance – material errors – Erceg v Erceg – whether members of the public could find out the identity of an appellant – significant adverse consequences of publication.

 

Held: the application for leave to appeal was dismissed.

The SC found the CA identified relevant interests and noted public interest factors warranted publication. Nothing raised by the applicants indicated any material error in the assessment by the CA.

 

Vivian Mitchell is a Solicitor

 

Peter T Rex LLC v NZME Publishing Limited [2024] NZSC 10.

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