Alt New Zealand Ltd v Attorney-General
[2023] NZHC 2883
•13 October 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-000146
[2023] NZHC 2883
UNDER the Judicial Review Procedure Act 2016 and the Declaratory Judgments Act 1908 IN THE MATTER
of an application for judicial review, and for declarations under the Declaratory
Judgments Act 1908, in respect of clause 15 of Schedule 5 to the Smokefree
Environments and Regulated Products Regulations 2021
BETWEEN
ALT NEW ZEALAND LTD
First Applicant
VEC LTD
Second ApplicantMYRIAD PHARMACEUTICALS LTD
Third Applicant
AND
ATTORNEY-GENERAL
Respondent
Hearing: (On the papers) Counsel:
M Sumpter and H Smith for the Requester
D A Laurenson KC and L I van Dam for the Applicants H W Ebersohn and V A Howell for the Respondent
Judgment:
13 October 2023
JUDGMENT OF CHURCHMAN J
[Application for access to Court documents]
ALT NEW ZEALAND LTD & ORS v ATTORNEY-GENERAL [2023] NZHC 2883 [13 October 2023]
Introduction
[1] The applicants in substantive proceedings have brought judicial review proceedings against the respondent, the Director-General of Health, challenging the making of regulations relating to the maximum nicotine strength in vaping products. The Court has yet to determine those proceedings.
[2] By application dated 25 September 2023, Philip Morris (New Zealand) Ltd (the requester), by its solicitors, has applied under the Senior Courts (Access to Court Documents) Rules 2017 (“the Rules”) for access to the following parts of the formal Court record in these proceedings:
(a)an index of all documents on the Court file;
(b)all judgments, orders, or Minutes; and
(c)any notices of application and opposition, written submissions and evidence.
[3] The respondent says the application is effectively to access all documents on the Court file and opposes the application. The applicants abide the Court’s decision.
Application for access
[4] The requester seeks permission to access these documents on the basis that access promotes open justice and the freedom to seek, receive and impart information. It says that as it is a participant in the industry, regulatory changes directly affect its business. It says it therefore has a legitimate interest in knowing the details of these proceedings, particularly given the urgency around the substantive judicial review.
[5] The requester says access to the Court file will assist it in making business decisions associated with the regulations. Its lawyers also say that access will assist them in advising the requester about the prospect of regulatory changes.
[6] The requester says the nature of the proceedings suggests there are no particular privacy or confidentiality concerns, but advises that its application is made subject to any necessary restrictions to protect confidential or private information.
Parties’ responses to application
[7] The respondent opposes access to all documents on the Court file, on the basis of the privacy and confidentiality interests of non-parties, namely those who made submissions during the consultation process, and the privacy interests of officials involved in the regulation-making process. In particular, in respect of the non-parties, the respondent says submitters were given the option of making a confidential submission, and some did so on a confidential basis, and the affidavit of Ms Hindson contains IP addresses and email addresses of many submitters. In respect of the officials involved, the respondent says some of the documents attached to the affidavits contain the contact details of officials who do not deal directly with members of the public.
[8] The respondent says the reasons the requester gives for needing access to the Court file would likely be met by access to an index of all documents on the Court file, and all judgments, orders or Minutes.
[9] The applicants abide the Court’s decision whether to grant the application. However, the applicants consider the requester’s reasons for seeking access can be met under the general right to access the formal Court record, particularly through access to the substantive judgment, once it is issued. The applicants also say the applications for interim orders and affidavits contain information about the applicants’ commercial operations that the requester would not otherwise have access to, including through Minutes and judgments of the Court. Finally, the applicants say the principle of open
justice, on which the application purports to rely, has “little relevance to a request by a private party pursuing a commercial purpose”.1
Access to court documents
[10] Under r 8(1) of the Rules, every person has the right to access the formal Court record relating to civil proceedings. The formal Court record includes “a register or an index” and any judgments, orders and Minutes, but does not extend to all documents in the Court file.2 In particular, it does not include pleadings, submissions or affidavits. The requester’s application for access to these documents therefore falls to be determined under r 11, which provides that a person may ask to access any document relating to a proceeding which they are not entitled to access, which request may be granted, without or subject to conditions, at the discretion of the Court.
[11] Rule 12 of the Rules sets out the matters that must be considered when determining a request for access under r 11, including:
(a)the orderly and fair administration of justice;
(b)the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice;
(c)the protection of other confidentiality and privacy interests and any privileged held by, or available to, any person;
(d)the principle of open justice;
1 Schenker AG v Commerce Commission [2013] NZCA 114, (2013) 22 PRNZ 286 at [38].
2 Senior Courts (Access to Court Documents) Rules 2017, r 4 definition of “court file” and “formal court record”.
(e)the freedom to seek, receive and impart information;
(f)whether a document to which the request relates is subject to any restriction order; and
(g)any other matter the Judge thinks appropriate.
[12] The principle of open justice is fundamental to our system of justice.3 However, there is no presumption in favour of disclosure.4 A balancing exercise has to be carried out, weighing the privacy interests concerned against the public interest in open justice.5 The Court must balance all relevant factors, using its discretion and evaluation to determine the appropriate weight given to each factor.6
[13] The principle of open justice is always relevant, but this must be balanced against the other considerations set out in r 12. Furthermore, r 13 provides that after the substantive hearing, open justice has greater weight in relation to documents that have been relied on in the determination of the proceedings, but the protection of privacy and confidential interests are to be given greater weight than would be the case during the hearing.
Discussion
[14] The request complies with the content requirements contained in the Rules.7 The requester is sufficiently identified, as are the documents sought, and the requester has provided specific reasons as to why access is sought. In relation to any conditions or restrictions that the judge or parties seek to impose on access, the requester has
3 Crimson Consulting Ltd v Berry [2018] NZCA 460, [2019] NZAR 30 at [33].
4 At [32]; and see New Zealand Animal Law Association v Attorney-General [2021] NZHC 1275 at [7].
5 X v Standards Committee (No 1) of the New Zealand Law Society [2011] NZCA 676; and Y v Attorney-General [2016] NZCA 474, [2016] NZAR 1512.
6 Schenker AG v Commerce Commission, above n 1, relied on in Crimson Consulting Ltd v Berry, above n 3, at [32].
7 Senior Courts (Access to Court Documents) Rules, r 11(2).
requested the opportunity to file a memorandum addressing this if the issue arises. This is sufficient in the circumstances to comply with r 11.
[15] I now turn to the balancing of factors, weighing the different matters, in particular the privacy interests concerned against the public interest in open justice.
[16] The application is purported to be brought on the basis that access to the documents promotes open justice and the freedom to seek, receive and impart information. As the Court of Appeal has held, documents relied on or referred to at a hearing should be open to full scrutiny by all members of the public unless there are particular and strong reasons to the contrary.8 During the hearing, it is “most pertinent” that the public has the ability to follow and understand the hearing process.9 However, prior to and after the substantive hearing the importance of public scrutiny is less, and following the substantive hearing, “[p]arties are entitled to expect that the need for open justice has been met by full access during the substantive hearing stage”.10
[17] A key tenet of the principle of open justice is to encourage fair and accurate reporting and comment on Court hearings and decisions. However, that is not present to any real degree in respect of the present application. Rather, the requester seeks the information on the basis that it is a participant in the industry and as such will be directly affected by any regulatory changes.
[18] However, that is not a matter on which the documents requested may assist. Regulatory changes are obviously within the purview of the executive and legislative branches, not the judiciary. It is unclear how the submissions and evidence filed in this judicial review can inform the requester as to upcoming regulatory changes it may wish to be aware of. Indeed, any (necessarily limited) information in that regard that the Court can provide will come in the form of the eventual judgment in the judicial review proceedings. Even that will not provide information to the requester as to
8 See Greymouth Petroleum Holdings Ltd v Empresa Nacional Del Petróleo [2017] NZCA 490, [2017] NZAR 1617 at [22] and [25].
9 At [25]; and see New Zealand Animal Law Association v Attorney-General, above n 4, at [11].
10 At [25].
upcoming regulatory changes, but rather the lawfulness of the process leading up to the regulatory changes already made.
[19] The same reasoning applies to the other stated reasons for the request to access the documents. The requester, as a participant in the industry, will already be aware of the regulatory changes made. Access to the pleadings, submissions and evidence will not further assist the requester in terms of making business decisions associated with the regulations, as the requester suggests, as this judicial review proceeding will not in any case determine what the regulations will be going forward, but merely the lawfulness of the decision-making process leading to the regulatory changes.
[20] As for the reason given that the requester should have access so its lawyers will be able to better advise the requester about the prospect of regulatory changes, any such advice — necessarily speculative — will best be made when the Court has delivered its judgment, not before. Access to the submissions and evidence will likely be of only limited utility in this regard.
[21] I note the decision in New Zealand Animal Law Association v Attorney- General, in which Cull J granted third party access only to the statement of claim.11 The judge otherwise declined the application, noting that the application did not reflect the purposes underlying the Rules. In particular, the request was made on behalf of a private organisation pursuing its own purposes rather than a journalist or media organisation, and therefore had less to do with public access and participation in the proceedings, upon which the principle of open justice is founded. The judge also found that there were privacy concerns, and the request was for far more detailed information than someone would be able to gather from watching the Court hearing, not only in respect of legal submissions but also in respect of information about who had provided certain evidence on certain topics.
[22] I consider the present application to be on all fours in these regards. In particular, I note that there are, as the respondent has pointed out, privacy reasons here in favour of not providing access to the documents requested, notably the contact
11 New Zealand Animal Law Association v Attorney-General [2020] NZHC 2376, (2020) 25 PRNZ 488.
details of non-parties and non-public-facing officials, and the submissions of submitters, some of which were provided on condition of confidentiality.
[23] Weighing these matters up, I consider the application for access should be dismissed. In particular, I consider the principle of open justice is not a significant factor justifying access in this case, the requester being a private organisation pursuing its own purposes, and is outweighed by the privacy interests in this case, namely the privacy interests of non-parties and non-public-facing officials, which favour not granting access.
[24] If, following release of the decision the requester feels it is entitled to more information than is contained in the decision, it will be at liberty to renew the application.
Disclosed privileged material
[25] A related but distinct matter has also been raised by counsel for the Crown. By memorandum dated 4 October 2023, I have been advised that by mistake the respondent disclosed legally privileged material (the disclosed privileged material) in two attachments to affidavits filed in these proceedings. The respondent seeks leave to redact the disclosed privileged material to protect its legal privilege and re-file the affidavits with the relevant paragraphs redacted.
[26] The disclosed privileged material relates to legal advice provided in respect of New Zealand’s international trade obligations. It was not put forward or positively advanced as supporting any proposition. The respondent says it has no relevance to any ground of review but was the product of mere inadvertence.
[27] An inadvertent or mistaken disclosure of privileged material does not waive privilege.12 The applicants do not oppose the orders sought. In the circumstances, I make orders granting leave for the respondent to file and serve a further electronic copy of each of the affidavits with the relevant paragraphs redacted, and to collect the
12 Evidence Act 2006, s 65(4).
two original affidavits from the Court for the purposes of redacting the relevant paragraphs prior to re-filing.
Conclusion
[28]The application for access to the documents is dismissed.
Churchman J
Solicitors:
Chapman Tripp, Auckland for the Requester Powle and Hodson, Auckland for the Applicants
Crown Law Office, Wellington for the Respondent
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