R v Robinson  NZHC 860
Mr. Robinson’s house and all its contents had been destroyed in a fire. He lodged a claim with his insurer, IAG, who rejected it on grounds of suspected arson. Despite the fact that Mr. Robinson had been elsewhere on the day of the fire, IAG’s investigators had come to the conclusion that he had modified a printer in his home to catch fire once activated remotely by laptop. Though he was initially charged with arson, Mr. Robinson was subsequently discharged. He filed his own civil proceedings against IAG for breach of the insurance contract and falsifying evidence.
In a 23-page “settlement offer” to IAG, Mr. Robinson accused IAG of weaving a complex “web of deceit,” asserting that they had pressured their investigators to falsify evidence so they could decline a “perfectly valid, large claim.” Robinson threatened to release this information online unless IAG agreed to pay him the full settlement of his claim, along with “special damages” to compensate for stress and other damage to his health and reputation. This amounted to over $5 million NZD. His letter noted that “the publicity of this event would be devastating…to the business of [the insurer] and could lead to a loss of [the insurer’s] licence to issue insurance policies in NZ.”
Rather than comply with his request, IAG referred this letter to the police, who charged Mr. Robinson with blackmail. He was later sentenced to 9 months’ home detention. While blackmail carries a maximum penalty of 14 years’ imprisonment, higher penalties are reserved mainly for threats against vulnerable victims and threats of disclosure of sensitive, personal information. IAG, Justice Duffy held, were not vulnerable “in the usual sense of the word.”
Prior to the final decision, the Crown had sought an order to extend interim name suppression for the remainder of the trial. This would have applied to IAG and a number of others connected with the case, including the accused himself if this was necessary to avoid identification of the parties. It was argued that a blackmail trial would not provide sufficient opportunity to respond to Mr. Robinson’s allegations and that the public might wonder, notwithstanding the outcome, that there was an element of truth to what Robinson was saying. This, the Crown argued, would be “tantamount to giving air to the very information that the accused had threatened to publish.” IAG further submitted that they would suffer undue hardship if name suppression was not extended, as the insurance market was a competitive one and their business reputation was built on probity.
While this was not opposed by the accused, it was submitted by the media that such an order would prevent them from reporting on any aspect of the trial, and that there was no evidence to suggest a company as large as IAG would suffer undue hardship or lose customers as a result of publication.
In her judgment, Duffy J summarised the rules and precedents relevant to name suppression orders. The merits of granting a name suppression order, she said, must be weighed against the principles of open justice and freedom of expression. As these are principles of fundamental importance to our justice system, such an order can only be made in exceptional circumstances. It must be shown that the person or company would suffer “undue hardship” were a name suppression order not granted. In this context, this means hardship of such a degree that would outweigh the public interest in the reporting of court proceedings. This determination, Duffy J held, can only be made on the facts of each individual case.
Despite IAG’s concerns about its reputation, on the facts Duffy J did not consider that publication carried with it a real and appreciable risk that IAG would suffer the kind of harm that reached the high threshold of undue hardship. While she did accept that publication of the case in the news would entail a wider dissemination of Robinson’s accusations, it was her expectation that the media could be trusted not to represent these accusations as truth, as they would then risk liability themselves. Further, she found no evidence to suggest that IAG had suffered any loss of revenue or customers from the information that had already leaked about the case to the public.
It is clear that in cases like these, orders for name suppression will be difficult to come by for large corporations like IAG. To prove “undue hardship,” they will need to proffer convincing evidence of the harm they are likely to suffer should their identity be disclosed.