Carmichael v Telford

[2018] NZHC 2279

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1022

[2018] NZHC 2279

BETWEEN

JAMES ALBERT CARMICHAEL

Plaintiff

AND

CHARLES PAUL TELFORD

HUTCHISON, WILLIAM CAIRNS, MICHAEL BUCZKOWSKI and KAREN

ANNETTE SHERRY, as trustees of ENTRUST

Defendants

Hearing:

(On the papers)

Counsel:

R B Stewart QC and J K Goodall for Plaintiff

C P Browne and A G Holden for First-Named Defendant
D R Bigio QC for Second, Third and Fourth-Named Defendants

Judgment:

30 August 2018

JUDGMENT OF BREWER J

Solicitors:

Morrison Mallett (Auckland) for Plaintiff
Wilson Harle (Auckland) for First-Named Defendant

Lowndes Jordan (Auckland) for Second, Third and Fourth-Named Defendants

CARMICHAEL v HUTCHISON & ORS [2018] NZHC 2279 [30 August 2018]

[1]                  Mr Carmichael has filed a claim in this Court in a matter which engages significant public interest in the area of local democracy.

[2]                  Mr Carmichael is a trustee of a Trust (“Entrust”) established to take ultimate ownership of the assets of the Auckland Electric Power Board that has devolved to a holding in excess of 75 percent of the ordinary shares of Vector Ltd. The majority of beneficiaries of Entrust are the consumers of electricity within a defined district contained within the Auckland region. Local authorities in the region are capital beneficiaries.

[3]                  The first named defendant, Mr Hutchison, is also a trustee of Entrust, as are the second to fourth named defendants.

[4]                  Mr Carmichael’s claim is that Mr Hutchison is not eligible to be a trustee and so is not actually a trustee.

[5]                  Trustees are appointed triennially by way of election and the next election is scheduled for 26 October 2018.

[6]                  Mr Carmichael seeks declarations to the effect that Mr Hutchison was not eligible to stand for election as a trustee and accordingly he is not one.

[7]                  Against this background of evident public interest, Mr Todd Niall, a journalist, seeks access to all documents filed by the parties with the Court.

[8]                  Mr Carmichael objects to this. Mr Hutchison does not oppose the application subject to restrictions on reporting of private identifying personal information.

[9]                  Mr Cairns, Mr Buczkowski and Ms Sherry (the second, third and fourth named defendants) either abide the decision of the Court or do not object to access being provided.

[10]              Mr Niall’s application falls to be determined under the Senior Courts (Access to Court Documents) Rules 2017.

[11]              Essentially, I have a discretion (guided by the Rules) as to what access Mr Niall may have to the Court file.1

[12]              Rule 8 provides the general right of the public to access the formal Court record relating to a civil proceeding. The ‘formal Court record’ includes any document recording a decision of a Judge. In this case, the formal record includes the discovery directions given by Associate Judge PJ Andrew in his Minute of 20 August 2018.

[13]              The other documents currently on the Court file are principally the pleadings and memoranda of counsel.

[14]              Counsel for Mr Carmichael sets out his opposition to Mr Niall’s application by pointing out that the Rules distinguish between access before the substantive hearing and after it. They submit the orderly and fair administration of justice outweighs, currently, the public interest in disclosure:

(a)The proceeding is at a very early stage;

(b)If media were permitted access to the Court file, they would see and likely report upon the allegations made in the pleadings. The allegations are, at this stage, untested in Court; and

(c)The parties intend to have discussions to see whether the matter can be resolved. This could be prejudiced by the media reporting on the allegations.

[15]              I acknowledge the distinction submitted by counsel. Rule 12 sets out the matters to be considered by a Judge in determining a request for access.

[16]              Frequently, a civil proceeding is about a dispute between private parties. However, because the Courts are public institutions set up for doing justice openly and (in the case of this Court) independently on behalf of the Sovereign, the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, Court hearings and decisions) is strong. It has to be balanced against the need to restrict the disclosure of any more information about the private lives of

1      Rule 5 specifies the Rules do not affect the Court’s inherent power to control its own proceedings, and a Judge may direct that nothing be accessed without the Judge’s permission.

individuals, or matters that are commercially sensitive, than is necessary to satisfy this principle of open justice.

[17]              This case is not a private dispute. It is a matter of significant public interest within a context of regional democracy. I do not accept the arguments made on behalf of Mr Carmichael. He is a publicly elected official. He has chosen to challenge in this Court the status of another publicly elected official. The principle of open justice burns incandescently in this case.

[18]              I accept Mr Hutchison’s submission that because the challenge to his election relates to some matters private to him and his family, the following matters may not be reported:

(a)The exact addresses of the properties referred to in the pleadings;

(b)Any telephone number or other personal contact details;

(c)The number plates of any vehicles;

(d)The school which Mr Hutchison’s daughters attend.

[19]With the above restrictions, Mr Niall’s application is granted.

Brewer J