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Galuska v Barber [2018] NZFC 6020

Published 26 June 2019

Public interest — capacity to manage property affairs — public office candidate — Protection of Personal and Property Rights Act 1988 — Family Courts Act 1980, ss 11A, 11B, 11C & 11D — Family Court Rules 2002, r 429. A journalist applied for access to Court documents so he could publish a story about Ross Barber, who was a candidate for a seat on the Horizons Regional Council. Ross was subject to an order under the Protection of Personal and Property Rights Act giving his brother control of his property, as he lacked capacity to manage his own affairs. This meant Ross was a vulnerable person under s 11D of the Family Court Act (the Act). The issue was whether the public had a right to know that a person standing for public office lacked the capacity to manage their own property affairs, or if this public interest was outweighed by the subject person's right to privacy and protection as a vulnerable person. Section 11B(1) of the Act supports principles of transparency and open justice by stating any person may publish a report of proceedings in the Family Court. This is subject to exceptions. A report cannot be published without leave of the Court if a vulnerable person is the subject of the proceedings. Leave may be granted with or without conditions. The applicant journalist had to prove he had a genuine and proper interest in the information. It was submitted the specific interest in this case arose as Ross had chosen to run for public office. If he was successful he would potentially have control over rate-payer money. At the very least he would be involved in decisions affecting rate payers and their financial positions. Ross had marketed himself as a person the public could trust, placing himself in a position where he should be open to scrutiny. Weighing against the application was the right of an individual to privacy, especially as a vulnerable person. The information the journalist was seeking was very personal in nature, documenting Ross' property and medical issues. To publish this would be a violation of a vulnerable person's privacy. The Judge decided it was in the public interest for people to know Ross lacked capacity to manage his own affairs. There was a need to ensure transparency in the election process and prevent misrepresentation of Ross' ability to undertake a role in public office. Ross had put himself up for election and a position subject to scrutiny. It would not be right to shield this information from the voting public. However, it was also decided that access to the full file was not warranted. The applicant did not have genuine interest in Ross' property and medical information. The public did not need to know these specific details and to allow one person, let alone the public at large, to examine the information would be a breach of Ross' right to privacy. Principles of open justice and public interest were balanced against the private rights of Ross by allowing the journalist to have access to the Court orders in a redacted form which withheld all details of Ross' property and medical concerns. Leave was given to publish the contents of the decision. Judgment Date: 16 August 2018.