Adam is a solicitor at Franks Ogilvie. He joined the firm in September 2023 and completed an LLB/BA in 2024, majoring in History and Public Policy. He was admitted as a barrister and solicitor of the High Court in June 2025.
Prior to working at Franks Ogilvie, Adam was part of the team at the New Zealand Free Speech Union, running much of the back-end work of the organisation. He also interned for a Member of Parliament in 2020.
Adam is passionate about liberal democratic values and the importance of a robust civil society. Outside his work and studies, he enjoys getting out into the various tracks and DOC huts in the Wellington region.
An incarcerated plaintiff in a judicial review application had a significantly reduced costs order made against him in recognition of the chilling effect that costs orders have on potential plaintiffs bringing New Zealand Bill of Rights Act cases.
Lance Lee, an inmate at Rolleston Prison, applied for judicial review of the Department of Corrections (“Corrections”) decisions to decline medical prescriptions, and a prison policy of charging for hearing aid batteries. He alleged the decisions breached his rights under the New Zealand Bill of Rights Act 1990 (“NZBORA”). This included his right not to be subject to torture or cruel treatment, right to freedom from discrimination, and right to be treated with humanity and respect while being deprived of liberty.
The application for judicial review failed decisively, and Corrections sought an award of costs from Mr Lee to reimburse them for their expenses incurred instructing a barrister to defend the application (which amounted to $11,648). Mr Lee requested that costs be either reduced or refused entirely.
Costs are awarded at the discretion of the Court in accordance with the High Court Rules. The standard position is that an unsuccessful party will pay costs to the successful party, though the Court may refuse to award costs or reduce them. Circumstances where the Court may exercise this discretion include when a proceeding concerned a matter of public interest, or where the party claiming costs had contributed unnecessarily to the time or expense of a proceeding.
Mr Lee opposed costs on the grounds that the proceeding concerned a matter of public interest. For a reduction of costs on those grounds, it required the proceedings to genuinely engage the public interest, have merit, and be of importance beyond the interests of the unsuccessful party. Just because a case invokes human rights does not necessarily mean it concerns a matter of public interest.
Mr Lee submitted that a costs order would be contrary to his right to justice as affirmed by section 27 of NZBORA and would discourage other inmates from initiating legal proceedings to uphold their own rights. He argued that the Court had agreed his claim had merit as they had refused to strike it out and relied on Gorgus v Chief Executive of the Department of Corrections, where a prisoner successfully appealed a costs order for an unsuccessful NZBORA claim.
Corrections submitted that they acted appropriately throughout the proceedings, including signalling the prospects of costs to Mr Lee. They submitted Mr Lee’s claims were for his personal benefit, were without merit, and had already incurred public costs from Corrections staff having to take time to provide affidavit evidence.
The court considered that the judicial review had little public benefit. The medical decisions were non-justiciable and personal to his circumstances, so did not have the potential to benefit other inmates. The prison policy to charge for hearing aid batteries considered the personal circumstances of prisoners, which the Court said limited the benefit Mr Lee’s review would have for other prisoners.
Citing Gorgus, the Court nonetheless noted the chilling effect that the risk of costs orders has on potential plaintiffs. The Court recognised the policy interest in not discouraging litigants with tenable grounds of review from accessing the courts to vindicate their rights. This interest is balanced against not wanting to immunise litigants with meritless claims from adverse costs awards.
The Court noted that Mr Lee’s status as a prisoner and lack of access to substantial funds were not a barrier to an award of costs, but they did make Mr Lee the kind of person whose access to justice needed to be preserved and recognised. The Court considered it appropriate to substantially reduce the costs Mr Lee would pay to Corrections.
The Court ordered Mr Lee to pay $1000 to Corrections for costs incurred defending his application for judicial review. This was a significant reduction from a standard costs order.
For further information on this case or similar issues, please contact Managing Director Brigitte Morten
The Supreme Court overturned the Court of Appeal’s quashing of a takedown order of online reporting of the extensive criminal conviction of Damon Exley (“Appellant”). The substantive trial had already concluded, but this decision significantly expanded the availability of takedown orders for criminal defendants.
Background
The Appellant was a convicted sex offender who escaped from prison and while on the run committed a series of serious crimes. This offending attracted significant public interest and media reporting, including of his previous convictions. The Appellant applied for a takedown order under the Criminal Procedure Act 2011. The High Court granted this application, ordering media coverage of his previous convictions and character to be removed from the internet.
Takedown orders are used by the courts to direct the removal of specific information (such as an online news article) from publication that is deemed prejudicial to a defendant’s right to a fair trial. Often, as in this case, it involves reporting of a defendant’s character or previous convictions that might predispose a juror against the defendant.
NZME successfully appealed the takedown order in the Court of Appeal, which attached greater weight to the propensity evidence to be heard at trial. Propensity evidence shows a person’s character or predisposition to act in a particular way. Because evidence regarding the Appellant’s character and previous convictions would be given at trial regardless, the Court of Appeal considered that reporting outside trial on the Appellant’s previous convictions would do little to prejudice his case. The Court of Appeal also believed that the risk that jurors might ignore judicial directions against undertaking their own inquiries was overstated, pointing to studies that showed that the great majority of jurors understood and complied with their responsibilities.
Despite the substantive trial concluding and the Appellant returning to another lengthy prison sentence, the Supreme Court allowed an appeal on the takedown orders.
The case
The Supreme Court overturned earlier authority which required consideration of the right to free expression when determining takedown order applications. The Court held that the right to a fair trial is absolute; no other considerations, such as the right to free expression as enumerated in section 14 of the Bill of Rights Act, could prevail over the right to a fair trial. Despite the Criminal Procedure Act 2011 requiring an opportunity for the host of a publication to be heard on a takedown application, the Court held this was not legislative recognition that the court had to consider the right to free expression. The Court also noted its view that it did not consider takedown orders to be an unreasonable limit to free expression, as the right is exercised by the initial act of publication and the orders are only temporary in nature.
The Court determined that the test for making a takedown order was whether there was a real risk of prejudice to a fair trial. The reach of the publication could be considered, but if the material in question is highly prejudicial, that would be sufficient to justify a takedown order regardless of reach. The Court did not consider prospects of compliance with the decision, expecting media to adjust their practices to the requirements of the law but it did require that the takedown order should also be no greater in scope than is necessary to ensure a fair trial.
The Supreme Court noted recent law changes to strengthen jury directions, such as a new oath that jurors would not conduct their own research and fines for those who do. While these reforms were meant to reduce juror non-compliance with judicial directives not to self-investigate, the Supreme Court also took them as Parliament recognising jurors could not be trusted not to undertake their own research.
The Court also suggested that the Crown should support takedown orders itself where its test is met, and that prosecutors should even apply for them at times if the defence do not do so. This guidance was based on the duty of prosecutors to uphold the right to fair trial themselves. The Court gave an expectation that the Crown would reconsider an earlier decision not to update the Solicitor-General’s prosecution guidelines regarding takedown orders.
On the issue of whether the High Court should have accepted the Appellant’s application for a takedown order, the Supreme Court took a middle ground between the High Court and the Court of Appeal. It agreed that a takedown order should have been in place, but only for the URLs submitted by the Appellant’s counsel. The Court noted that not all of the Appellant’s criminal history was before the jury, and that the tone of the relevant reporting was inflammatory in prejudicial terms. That the material was highly prejudicial was enough to justify issuing a takedown order, given the isk to the Appellant’s fair trial rights if the material was accessed by a juror.
Result
The Supreme Court allowed the appeal, determining that the Court of Appeal was not correct to quash the High Court’s takedown order, to the extent that it related to the URLs identified in the takedown application. Defendants in high profile cases that attract media attention will now have a lower threshold to achieve takedown orders to limit publication of their alleged crimes and any criminal histories.
This judgement substantially lowered the bar for defendants in criminal trials to have suppression orders granted in their favour. That the right to a fair trial prevails over free expression is not a new development. However, the judgement has left the law in a contradictory position regarding the trust it places in juries. The Court could have taken an approach that limited the impact on the right to free expression by placing more weight on making juror’s compliance with judicial directions rather than removing access to information for everyone.
The judgment assumed that the takedown orders were necessary to protect the Appellant’s fair trial rights. In doing so it also displaced the presumption that jurors will comply with judicial directions, despite research to show that the vast majority of jurors do in fact understand their obligations. The scope of a takedown order is supposed to only be as extensive as is necessary to protect the right of a fair trial, but without emphasising other means of deterrence as the primary means of protecting fair trial rights, a takedown order will necessarily be more extensive than it otherwise needs to be.
While the new legislative measures to strengthen jury directions recognises the risk that they might undertake their own research, the Court could have also better recognised that they reduced the necessity of takedown orders.
While not central to the judgement’s reasoning (given its view that fair trial rights are paramount) its characterisation of the right to free expression is also concerning. Free expression is not simply exercised by a singular act of speech, but rather is the ongoing ability to impart views and information. That the Court described the right as ‘exercised’ by an initial act of publication is a substantial diminution that might have lead it to treat the impact of a takedown order lighter than it should have.
The right to free expression is not only a right to impart information, but also to seek and receive information. This recognises the right of journalists for example, to publish information but also the general public’s right to access that information. The judgement did not engage with this aspect of the right to free expression.
For further information on this case or similar issues, please contact Director Brigitte Morten.
UPDATE: On 25 November 2025, the Governance and Administration Committee reported back on the Bill, recommending by majority that it be passed with amendments. Among the amendments was a change recommended by Franks Ogilvie that the ‘full council’ (i.e. the council’s governing body) be given oversight of the chief executive in information access decisions. This is a significant win for transparency and accountability in local government, providing democratic oversight to information accessdecisions that would otherwise rest entirely with unelected officials.
Submission: Local Government (System Improvements) Amendment Bill
Parliament’s Governance and Administration Committee is considering the Local Government (System Improvements) Amendment Bill (“Bill”). Franks Ogilvie submitted on this bill, making suggestions on how the Bill could better promote democratic accountability in local government and reduce wasteful spending.
What the bill does
An Explainer on the Bill can be found here
Refocusing councils on core services
The Bill is part of the Government’s push to bring councils “back to basics”; refocussing local authorities on core services to limit rate rises. The Bill removes the four “well-beings” (economic, environmental, social, and cultural) from the Act’s local government purposes section, which the Government argues promotes spending on non-core services. The Bill will also require local authorities to have particular regard to the contributions that core services make to their communities.
Strengthening transparency
The Bill will require local authorities to report on their contractor and consultant expenditure, and will expand the matters that local authorities must report on to better allow the public to assess council performance. The Bill will empower the Secretary for Local Government to issue standardised codes of conduct and standing orders that will be binding on all councils. The Bill also expands access to “reasonably necessary” council information for elected members.
Regulatory relief
The Bill modernises notice requirements, removing the requirement for 6-yearly services delivery reviews, and clarifying chief executive authority and third-party capital contributions. The bill also removes the requirement for councils to consider the relevance of tikanga Māori when appointing directors to council controlled organisations.
Franks Ogilvie’s submission on the Bill
The Bill is an opportunity to make other improvements to the Local Government Act, particularly in re-balancing the relationship between elected members and council officials. Our submission made the following suggestions:
Improve councillor rights to information and oversight of their local authorities
The firm is aware of some situations where council officials withheld information from elected members, limiting democratic governance and oversight of council operations. The current Bill drafting could be strengthened by including a presumption that councillors have access to council documents, other than in specific cases where there was a good reason for withholding them (such as when disclosure would breach another law or individual privacy rights, or where the member seeking the document had a conflict of interest, or had an otherwise improper reason for obtaining the document). The Bill should also provide a mechanism to council governing bodies to have oversight over information access decision made by officials.
Limit councillor disqualifications from voting on the basis of pre-formed views
The firm knows of instances where council officials have told elected members that they are disqualified from voting on certain matters on the basis that they have pre-conceived views on those matters. Councillors are elected on the basis of these views, and they should not be prevented from voting on matters on that basis. The bill should make this explicit in the Local Government Act, to reflect the common law position that elected officials are allowed to bring views to their political decision-making, provided they retain an open mind.
Clarify the illegality of using council resources for local government electioneering
Use of council resources for electioneering is already unlawful, but as recent examples of Councils using resources on Maori ward positions demonstrate that the law is not sufficiently clear. The illegality of council electioneering be made explicit in the Local Government Act, to make the law clear for local authorities and better enable legal accountability.
To read our full submission, please click here.
For further information regarding this or similar issues please contact Director, Brigitte Morten
