Cardno (NZ) Limited v Stokes

[2023] NZHC 676

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-134

[2023] NZHC 676

IN THE MATTER

of the Insolvency Act 2006

AND

IN THE MATTER

of the bankruptcy of Colin Peter Stokes

BETWEEN

CARDNO (NZ) LIMITED

Judgment Creditor

AND

COLIN PETER STOKES

Judgment Debtor

Counsel:	D M Abricossow for Judgment Creditor C P Stokes (judgment debtor) in person
Judgment:	30 March 2023
(Determined on the papers)

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 30 March 2023 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

CARDNO (NZ) LIMITED v STOKES [2023] NZHC 676 [30 March 2023]

The application

[1]    Colin Stokes applies for a copy of a transcript of a hearing before Associate Judge Paulsen on 20 February 2023. Alternatively, he asks that facilities be made available to him to listen to the audio recording of the hearing and make his own transcript.

[2]    The application was made informally by way of email to the Registry, but I am treating it as a request under the Senior Courts (Access to Court Documents) Rules 2017.

Background

[3]    Mr Stokes has been involved in several proceedings since around 2010 involving a subdivision of land in a yet to be completed subdivision at Yaldhurst. The first of those proceedings involved an application of Mr Stokes and others against the developer, Noble Investments Ltd (Noble), for orders that caveats they had lodged over the subdivision (to protect easements) not lapse.1

[4]    Subsequently, Mr Stokes and Gregory Smith issued substantive proceedings against Noble and other defendants, including Justin Prain and Cardno (NZ) Ltd (Cardno). In December 2019, Mr Prain and Cardno applied to strike out the claim. That application was successful.2 A substantial award of costs was made against Mr Stokes (the “initial costs award”).3 Mr Stokes appealed to the Court of Appeal. His appeal was dismissed subject to adjustments which were specified in the Court of Appeal’s judgment.4

[5]    Associate Judge Lester then made the adjustments to the costs award as required by the Court of Appeal and fixed the costs payable by Mr Stokes at

$77,627.20 plus disbursements (the “final costs award”).5

1      Philpott v Noble Investments Ltd [2012] NZHC 1431.

2      Smith v Noble Investments Ltd [2020] NZHC 1236.

3      Smith v Noble Investments Ltd [2020] NZHC 1766 (Costs Judgment).

4      Stokes v Prain [2021] NZCA 683.

5      Smith v Noble Investments Ltd [2022] NZHC 1964.

[6]    Cardno issued a bankruptcy notice against Mr Stokes in respect of the costs award.6 Mr Stokes applied to set aside the bankruptcy notice. That application was set down for hearing before Associate Judge Paulsen on 20 February 2023.

[7]    A matter advanced by Mr Stokes in challenging the bankruptcy notice was that Cardno’s former manager, Mr Graham, perjured himself in an affidavit in the caveat proceedings. Mr Stokes raised this matter before the Court of Appeal in his appeal from the initial costs award and in support of an application that the Court of Appeal admit further evidence. The Court of Appeal declined Mr Stokes’ application. The Court referred to the evidence Mr Stokes wished to give as “neither cogent nor credible.”7

[8]    At the start of the hearing of the setting aside application on 20 February 2023, Associate Judge Paulsen indicated to the parties that he believed he should recuse himself. This was because his former law firm had acted for Noble in the proceeding in which Mr Graham had made his affidavit. The affidavit was produced. The Judge noted that it appeared likely he was involved in the preparation of the affidavit.

[9]    Although both Mr Stokes and counsel for Cardno wanted the hearing to proceed before Associate Judge Paulsen, the Judge recused himself and issued a minute providing his reasons.8

[10]   At the 20 February hearing, Mr Stokes made a request that Associate Judge Paulsen refer Mr Graham’s affidavit to the Police. The Judge recorded that discussion in his Minute:

(c)Mr Stokes requested that I record that he asked me to direct that the  issue of Mr Graham’s affidavit be referred to the Police. That is not a decision I am in any position to make having not heard any arguments from the parties, nor would it be appropriate in circumstances where I have recused myself. Mr Stokes may, of course, raise that matter with the Judge who ultimately determines his application.

6      Cardno issued its bankruptcy notice before the Court of Appeal’s judgment requiring adjustments to the amount payable by Mr Stokes. Nothing turns on that for present purposes.

7      Stokes v Prain, above n 4, at [45].

8      Minute dated 20 February 2023.

Application for transcript or access to audio file

[11]   Following the 20 February hearing, Mr Stokes made a request for a transcript or access to the audio file in relation to the hearing. Cardno takes no position in respect of the application. The request was put before Associate Judge Paulsen who issued a minute requesting Mr Stokes to provide reasons for his request. That minute read:

I have read the email correspondence between  Mr  Stokes  and  the  Registry. Providing either a transcript of the hearing or making facilities available for Mr Stokes to listen to the audio recording of the hearing and make his own transcript involves a considerable use of resources, and such requests are not granted as a matter of course. Further, as Mr Stokes has received my Minute of 20 February 2023 recording why I recused myself (as well as being present at the hearing), he will need to provide reasons for his request.

The grounds of application

[12]   On 7 March 2023, Mr Stokes filed a memorandum setting out the reasons for his request. His reasons relate to a request he had previously made that Associate Judge Paulsen to refer Mr Graham’s affidavit to the Police. Associate Judge Paulsen declined to make such a referral and provided reasons for this in a minute.9 Mr Stokes was dissatisfied with that decision. He said Judge Paulsen’s minute did not “detail” Mr Stokes’s reasons for asking the referral to be made. He referred to the interests of transparent justice and his human rights required a recording of the hearing to be provided. Mr Stokes suggested the Associate Judge had an obligation to refer his complaint to the Police given the Associate Judge’s obligation to promote justice and uphold the law, as the Police refuse to act on Mr Stokes’s complaint.

[13]   The request for access was then referred to me as a Judge of the Court, as it is the Judges of the Court who have jurisdiction to determine such requests.10

9      Minute dated 6 March 2023.

10     Boult v Crux Publishing Ltd [2022] NZCA 473.

Discussion

[14]   Rule 9, Senior Courts (Access to Court Documents) Rules 2017 provides that parties and their lawyers have a general right to inspect a court file and all documents relating to the proceeding in which they are involved in these terms:

9        General rights of parties to proceedings

Civil proceedings

(1)The parties to a civil proceeding and the parties’ lawyers may, under the supervision of the Registrar or a person appointed by the Registrar,—

(a)search and inspect the court file or any document relating to the proceeding, without paying a fee; and

(b)copy any part of the court file or any document relating to the proceeding on paying the prescribed fee (if any).

[15]   There is an important qualification to the general rights of parties to access the court file which is set out in r 9(5) and deals with records of court proceedings in electronic form. That rule provides:

(5)The general rights of the parties to civil proceedings, criminal proceedings and appeals, set out in subclauses (1) and (4), are subject to the following qualifications:

(a)a record of a court proceeding in electronic form that is in the custody and control of the court may be copied only with the permission of a Judge:

(b)a Judge may direct that the court file or any document relating to the appeal not be accessed by the parties or their lawyers without the permission of a Judge.

[16]   It will be noted the rights of parties to copy the record are restricted where it exists only in electronic form. Copying requires the permission of a Judge.

[17]   The restriction appears to be designed to protect the integrity of the electronic record held by the court. Courts have also recognised that granting access to a transcript where one has not been prepared in the course of the proceeding (as may often be the case) will involve a significant use of the court’s resources and that good

reason must be shown before one will be ordered.11 In Siemer v Heron, the Supreme Court said:12

… There are obvious resource implications if judges direct court registries to provide parties with transcripts of hearings of appeals and interlocutory matters generally on demand by litigants. For that reason, judges should always first satisfy themselves that there is good reason in the interests of  justice for giving such directions. …

[18] Mr Stokes has not demonstrated good reason as to why he should be given access to the audio record or that a transcript be prepared and he be given access to it. There is already a record of his complaint to a Judge that Mr Graham perjured himself, namely in the Associate Judge’s Minute set out at [10] above.

[19]   Associate Judge Paulsen’s reasons for refusing the request to make a referral to the Police are also adequately set out in the minute. Contrary to Mr Stokes’s suggestion, there is no lack of transparency.

[20]   I record for completeness that the Judge was not obliged to refer Mr Stokes’s complaint to the Police. Mr Stokes’s allegation of perjury is unproved. His evidence was rejected by the Court of Appeal.13 Associate Judge Paulsen had not heard argument from the parties and was not in a position to form a judgement on the matter. Any referral to the Police in those circumstances would have been inappropriate.

[21] I note Mr Stokes’s indication that he has made a complaint to the Police who, he says, will not act upon it. Nothing in that situation alters the conclusion set out in the preceding paragraph [20].

Result

[22]I refuse Mr Stokes’s request for access.

Osborne J

11     Zhang v Westpac New Zealand Ltd [2019] NZHC 297

12     Siemer v Heron (Recusal) [2011] NZSC 116; [2012] 1 NZLR 293 at [9].

13     Stokes v Prain, above n 4, at [45].

Solicitors:

Morrison Kent Lawyers, Wellington

Copy to:
Mr C P Stokes