Boult v Crux Publishing Ltd
[2022] NZCA 473
•7 October 2022 at 2 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA90/2022 [2022] NZCA 473 |
| BETWEEN | J BOULT |
| AND | CRUX PUBLISHING LIMITED |
| Hearing: | 22 September 2022 |
Court: | Gilbert, Brewer and Moore JJ |
Counsel: | G J Ryan and N J McKessar for Appellant |
Judgment: | 7 October 2022 at 2 pm |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe High Court judgment is set aside.
CThe application is remitted back to the High Court for determination by a Judge.
DThere is no order for costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Gilbert J)
Mr Boult is the mayor of Queenstown Lakes District. He was a former director of Stonewood Homes New Zealand Ltd and Holmfirth Group Ltd both of which were placed in receivership and in liquidation. In 2018, the liquidators brought proceedings in the High Court at Christchurch against Mr Boult and a Mr Mettrick (another former director) claiming they had breached their obligations under various provisions of the Companies Act 1993 in managing the affairs of these companies (the Proceedings). The Proceedings did not proceed to trial and were never adjudicated upon. They were settled prior to trial on partially confidential terms. The liquidators reported on the settlement in their statutory report dated 19 November 2021.
Crux Publishing Ltd (Crux), publishes an online news website covering matters of public interest in the Southern Lakes region. It applied pursuant to the Senior Courts (Access to Court Documents) Rules 2017 (the Access Rules) for access to court documents relating to the Proceedings. Mr Boult opposed the application. In a judgment delivered on 23 February 2022, the application was granted in part by Associate Judge Paulsen.[1]
[1]Cain v Mettrick [2022] NZHC 258 [High Court judgment].
Mr Boult appealed against the judgment. After the appeal was filed, French J raised a jurisdictional question as to whether Associate Judges are empowered to deal with these types of applications. Counsel subsequently agreed that applications under the Access Rules must be determined by a Judge of the High Court, not an Associate Judge. Rather than dispose of the appeal without the benefit of contrary argument, Brown J arranged for the appointment of Mr Beck as counsel assisting to present opposing argument.
We are grateful to Mr Beck for his helpful submissions. After examining the content and purpose of the relevant legislative provisions, surveying the position under predecessor provisions, and considering other contextual matters, he ultimately concludes, in agreement with other counsel, that Associate Judges do not have the power to make determinations under the Access Rules. In these circumstances, our reasons for dismissing the appeal and remitting the matter to the High Court for determination by a Judge can be relatively brief.
Section 20 of the Senior Courts Act 2016 (the Act) provides that an Associate Judge has the jurisdiction and powers of the High Court in respect of the matters listed and of a High Court Judge under specified enactments. The Access Rules are not listed as one of these matters or enactments. Section 21 provides ancillary powers to Associate Judges enabling them to exercise the same jurisdictional power as a Judge of the High Court in matters that are properly before the Associate Judge.
Section 22 of the Act makes provision for rules promulgated under s 148 to confer on Associate Judges the jurisdiction and powers of a High Court Judge in chambers. Rule 2.1 of the High Court Rules 2016 (HCR) sets out the “in chambers” powers exercisable by Associate Judges. Rule 7.34(1) of the HCR provides that interlocutory applications, unless uncontested or made orally during a hearing, must be heard in chambers unless a Judge otherwise directs. Associate Judges therefore have jurisdiction to hear interlocutory applications in chambers unless a contrary direction is made by a Judge.
We note that one of the exceptions in s 22 of the Act, reflected in r 2.1(3)(a) of the HCR, is that no rules may be made conferring power on Associate Judges to review the exercise of jurisdiction by a Registrar or Deputy Registrar.[2] We agree with Mr Beck that this is significant in the present context because the rules providing for access to court documents have developed as a procedure involving Registrars and Judges.
[2]Senior Courts Act 2016, s 22(4)(f).
It is reasonably well settled that an application by a non-party for access to court documents is an originating application, not an interlocutory application.[3] Section 4(1) of the Act defines an interlocutory application in civil proceedings as an application (in this instance) to the High Court for an order or a direction relating to a matter of procedure or for some relief ancillary to that claimed in a pleading. An interlocutory order is similarly defined in r 1.3(1) of the HCR as being an order or direction made for the purposes of a proceeding (or an intended proceeding) concerning a matter of procedure or the grant of relief ancillary to that claimed in the pleadings. The present application plainly does not fall into the category of an interlocutory application. The application does not concern a matter of procedure nor the grant of relief ancillary to that claimed in the pleadings. Indeed, the Proceedings had already concluded before Crux made its application for access to court documents.
[3]Mafart v Television New Zealand Ltd [2006] NZSC 33, [2006] 3 NZLR 18 at [13] and [40]; Greer v Smith [2015] NZSC 196, (2015) 22 PRNZ 785 at [9]; Siemer v Auckland High Court [2019] NZHC 3393, (2019) 25 PRNZ 561 at [4] (overturned on appeal, but not on this point).
As appears from the explanatory note, the Access Rules were intended to simplify the provisions for access and provide more specific guidance about how Judges are to balance different considerations when determining access requests. The Access Rules apply to all the Senior Courts to enable consistent treatment.
Rule 8(1) of the Access Rules provides that every person has the right to access the formal record relating to a civil proceeding. Rule 9 provides general rights of access to the parties to the proceedings. Applications not falling into these categories are dealt with under r 11.[4] The application is made by providing a written request for access complying with the requirements of r 11(2). Such applications are determined by a Judge unless the Judge refers the request to a Registrar for determination:
[4]Senior Courts (Access to Court Documents) Rules 2017, r 11(1).
11 Any person may ask to access documents
(1) This rule applies if a person is not entitled to access a document relating to a proceeding or an appeal under rule 8 or 9.
…
(7) A Judge may—
(a) grant a request for access under this rule in whole or in part—
(i) without conditions; or
(ii) subject to any conditions that the Judge thinks appropriate; or
(b) refuse the request; or
(c) refer the request to a Registrar for determination by that Registrar.
…
Section 4(1) of the Act defines “Judge” and “Associate Judge” separately. Unless the context otherwise requires, “Judge” is defined to mean “a Judge of the High Court”. While “Judge” is defined in the HCR to include an Associate Judge exercising the jurisdiction conferred on an Associate Judge by the Act or by the Rules, “Judge” is defined in the Access Rules to mean “a Judge of the court”.[5] Unlike the HCR, there is no reference to Associate Judges in the Access Rules. We do not consider that the Access Rules come within the meaning of “an enactment” under which Associate Judges have jurisdiction in terms of s 20(1)(j) of the Act. We agree with Mr Beck that the term “enactment” in this context means another statutory provision, not the rules of court. As he says, the use of rules to create jurisdiction is governed by s 22.
[5]High Court Rules 2016, r 1.3; and Senior Courts (Access to Court Documents) Rules, r 4.
Given that determinations of access to court documents can be made by Registrars in certain circumstances, there appears to be no good reason why such decisions should not be made by Associate Judges. However, as Mr Beck points out, that was not the position under the predecessor provisions and there is no indication in any of the minutes of the Rules Committee that any change to this aspect was considered or intended.
Section 26I of the Judicature Act 1908 was the predecessor of s 20 of the Act and similarly contained no provision conferring jurisdiction on Associate Judges in relation to applications for access to court documents. Section 26IA of the Judicature Act was the predecessor of s 21 of the Act dealing with the ancillary powers of Associate Judges. Section 26J was the predecessor to s 22 of the Act and conferred “in Chambers” powers on Associate Judges. Consistent with the present position under s 22 of the Act, s 26J(3)(f) of the Judicature Act precluded Associate Judges from having any jurisdiction or power to review the exercise of any jurisdiction or power conferred on any Registrar or Deputy Registrar. Rule 66 of the High Court Rules 1985 provided that applications for access to court documents were to be made to the Registrar with a right of review by a Judge.[6] It follows that a “Judge” in this context did not include an Associate Judge.
[6]High Court Rules 1985, r 66(9), (10) and (11).
On 1 February 2009, the Judicature (High Court Rules) Amendment Act 2008 came into force, replacing the High Court Rules 1985. The High Court Rules 2008 initially provided for access decisions to be made by a Registrar subject to review by a Judge.[7] These Rules were amended as from 12 June 2009. Following the amendment, access decisions were to be determined by a Judge unless a Judge directed the Registrar to do so.[8] A “Judge” was defined in these rules to include an Associate Judge but only when exercising jurisdiction conferred on an Associate Judge.[9] Again, this traced the jurisdiction back to ss 26I and 26J of the Judicature Act which, as we have seen, did not provide jurisdiction to Associate Judges to determine access applications.
[7]High Court Rules 2008, r 3.11.
[8]Rule 3.13(3).
[9]Rule 1.3.
In conclusion, we agree with Mr Beck that the Act does not confer express power on Associate Judges to determine applications for access to court documents. The Access Rules do not provide otherwise. Associate Judges have not historically had jurisdiction to determine these types of applications and there is nothing to indicate that any change was intended when the Access Rules were promulgated. It follows that we agree with the position reached by all counsel that the appeal must be allowed and the matter remitted back to the High Court so that the application can be determined by a Judge.
Result
The appeal is allowed.
The High Court judgment is set aside.
The application is remitted back to the High Court for determination by a Judge.
There is no order for costs.
Solicitors
White Fox & Jones, Christchurch for Appellant
6
4
0