Attorney-General v Fleming

[2022] NZCA 358

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA371/2021
 [2022] NZCA 358

BETWEEN	ATTORNEY-GENERAL Appellant
AND	CHRISTINE FLEMING Respondent

Court:	Cooper P
Counsel:	S V McKechnie and T J Bremner for the Appellant P J Dale QC for Respondent L T Meys as litigation guardian for J C F Anyon-Peters for Applicant
Judgment: (On the papers)	8 August 2022 at 2:30 pm

JUDGMENT OF COOPER P

AThe application for access to court documents on this Court’s file is granted so far as it relates to minutes, orders, judgments, pleadings and submissions. Counsel for the applicant is required to give an undertaking in the terms set out at [8]. The application is otherwise declined.

B        There is no order as to costs. 

____________________________________________________________________

REASONS

1. The Taikura Trust has made an application for documents held on the Court’s file in respect of this appeal, under the Senior Courts (Access to Court Documents) (Rules 2017).

2. The documents which are subject to the application are described as:

   The court record and court file … including:  court judgments and minutes, applications, pleadings, transcripts, evidence, and any further documents which are filed in relation to these proceedings.

3. The application states the reasons that the application is made in the following term:

   Our client, Taikura Trust, is a party to similar proceedings in the Employment Relations Authority which were stayed pending the outcome of this proceeding.  Although not a party to this proceeding, a senior executive of Taikura Trust gave evidence in the Employment Court in this proceeding.   

   Our client has a vested interest in the progress and outcome of the proceedings CA371/2021 as it will significantly impact (and perhaps be determinative of) the Employment Relations Authority proceedings to which Taikura Trust is a party.

4. The application contains a statement that the application is advanced on the basis that there could be an undertaking that any confidential documents were held only by counsel and not disclosed to the Trust.

5. A similar application was advanced in the Employment Court, whose judgment has given rise to the substantive appeal.  In that Court, Chief Judge Inglis ruled the Trust could have access to minutes, orders and judgments made in the proceedings, but otherwise declined the application.[1] 

   [1]Fleming v Attorney-General [2022] NZEmpC 110 at [18].

6. A similar application has also been made in an appeal to be heard at the same time as this, CA742/2021 Director-General of Health v Peter Humphreys.

7. In a judgment delivered today, I have granted the application in that case on a limited basis, that is that there should be access to the minutes, orders, judgments, pleadings and submissions made as the appeal proceeds to hearing, but there should not be access to notes of evidence, affidavits, and briefs which form part of the record as it comes to this Court, because of confidentiality and privacy issues in respect of personal information.[2]

   [2]Director-General of Health v Humphreys [2022] NZCA 359.

8. Similar issues as to confidentiality arise in respect of the person for whom Mr Meys acts as litigation guardian in this case, J, and the same outcome is appropriate.  Counsel for the Trust will need to give an undertaking that confidential information included as part of the submissions and pleadings will be held only by counsel and will not be disclosed to the Trust.

Result

1. The application for access to Court documents on this Court’s file is granted so far as it relates to minutes, orders, judgments, pleadings and submissions. Counsel for the Applicant is required to give an undertaking in the terms set out at [8]. The application is otherwise declined.

2. There is no order as to costs. 

Solicitors:
Simpson Grierson, Wellington for Appellant
Oakley Moran, Wellington for Respondent
Neilsons Lawyers, Auckland for J
Meredith Connell, Auckland for Applicant