McMillan v Taylor

In McMillan v Taylor, the applicants sought judicial review of a decision made by a Commissioner. The applicants were not parties to the original decision under review and sought access to documents held within the Land and Environment Court file pertaining to that decision, pursuant to rule 33.13 of the Uniform Civil Procedure Rules. The respondents contended that these documents were confidential under section 34(11) of the Land and Environment Court Act.

The central legal issue before the Court of Appeal was whether the applicants were entitled to access the Land and Environment Court file documents, despite not being parties to the original proceedings and in circumstances where the respondents claimed confidentiality and had not consented to their production. This also raised questions about the consistency of such production with the principles of case management under Part 6 of the Civil Procedure Act, particularly given that the documents would likely be inadmissible in the review proceedings without the respondents' consent.

Payne JA reasoned that allowing production of the documents under rule 33.13 would be inconsistent with the Civil Procedure Act, especially as the documents would be inadmissible in the judicial review proceedings without the respondents' consent, which had not been given. The Court therefore concluded that the applicants were not entitled to the documents.

Consequently, the Court of Appeal ordered that the applicants' notice to produce dated 30 March 2023 be set aside, and the application under UCPR rule 33.13 for access to the file be refused. The costs of the application were made costs in the cause.