Application for interim relief to restrain publication and disclosure of part of Abuse in Care Royal Commission of Inquiry Report – Supreme Court Rules 2004, r 30(2)(b) – is the order necessary to preserve the position of the Jehovah’s Witnesses? – is relief appropriate, given all the repercussions, public or private, of granting relief?

Christian Congregation of Jehovah’s Witnesses (Australasia) Ltd v Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-Based Institutions [2024] NZCA 340

The Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions completed its inquiries earlier this year. Its report was scheduled to be tabled in the House of Representatives on Wednesday 24 July 2024. Within the report was a case study on Jehovah’s Witnesses.

The consistent position adopted by the Jehovah’s Witnesses throughout the years of the Royal Commission investigation phase was that its activities fell outside the terms of reference because it did not have any residential facilities and nor did it operate in any other way that involved systematic care of children, young persons or vulnerable adults.

The Royal Commission received witness statements from former Jehovah’s Witnesses in which claimants provided accounts of abuse inflicted by members of that faith and detailed the way in which the Jehovah’s Witnesses responded to claims of abuse.

In 2023, the Christian Congregation of Jehovah’s Witnesses (Australasia) Ltd, an Australian public company, which describes itself as a conduit for religious direction to Jehovah’s Witness congregations in Australia, New Zealand and the South Pacific, brought judicial review proceedings in the High Court, claiming that it was unlawful for the Royal Commission to pursue, or to report findings about, these matters. The Jehovah’s Witnesses argued that further pursuit and reporting was outside the Royal Commission’s terms of reference.

After the proceedings were filed, the Royal Commission’s terms of reference were amended, for the avoidance of doubt, to confirm the interpretation of “in the care of faith-based institution” that the Royal Commission had set out in an earlier minute of January 2022.

The High Court dismissed the Jehovah’s Witnesses’ judicial review application. The Jehovah’s Witnesses appealed. The Court of Appeal dismissed the appeal (refer case note: Appeal Court rejects Jehovah’s Witnesses’ bid to be excluded from Royal Commission scrutiny – The Law Association). The Jehovah’s Witnesses applied for leave to appeal to the Supreme Court. That decision is pending.

On Friday 19 July 2024, the Jehovah’s Witnesses filed an application in the Court of Appeal seeking interim orders that the case study:
(a) not be published on the commission’s website; and
(b)be kept confidential and not otherwise published, referred to, reported on, or disclosed; until the Jehovah’s Witnesses’ appeal to the Supreme Court is decided and subject to the terms in which the appeal is decided.

Applicable principles: Supreme Court Rules 2004, r 30(2)(b) – is the order necessary to preserve the position of the Jehovah’s Witnesses? (yes) – is relief appropriate given all the repercussions, public or private, of granting relief? (no)

Held: The application for interim relief is declined. The Jehovah’s Witnesses do have a position to preserve as publication of the case study will likely have a reputational impact. However, interim relief would not be appropriate as their prospects of success on the substantive appeal must be regarded as low, the finalisation and publication of the Royal Commission’s report is a matter of considerable public interest and the Jehovah’s Witnesses waited until the very last moment to make this application. The court noted that any application for interim relief should have been made at a much earlier time and that “strongly counts against the grant of any interim orders”.

Jehovah’s Witnesses v Royal Commission of Inquiry 2024-NZCA-340 (1)