The Supreme Court in this case had to balance the competing interests involved in non-publication orders and the principle of open justice.
The application involved trusts set up by Michael Erceg (now deceased). It was made to prevent publication of details such as the amounts distributed to family members under the trusts.
The Supreme Court affirmed the importance of the principle of open justice to the common law system, but also that the principle could be made secondary to the needs of justice in a particular case. The Supreme Court ruled that New Zealand courts have an inherent power to bind the public in general to non-publication orders.
However, the principle of open justice is the fundamental rule, to which parties applying for a non-publication order must justify an exception. Accordingly, there remains a high bar for procuring a non-publication order.
The Supreme Court held that those seeking an order must demonstrate adverse consequences justifying an exception to the principle of open justice. Protection of trade secrets and commercial information was provided as an example of circumstances which might justify an order. In this particular case, the Supreme Court ruled that the application had not met the requirement to show convincingly that the interests of justice required an exception.