Clark v Booker - [2025] NZHC 2142

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2021-404-000848

[2025] NZHC 2142

BETWEEN
KERRY BERNARD CLARK, TRINA MARY CLARK and K & T TRUSTEE COMPANY LIMITED

Plaintiffs

AND

DEREK JOHN BOOKER

Defendant

TRANSBUILD LIMITED

First Third Party

KEVIN PATRICK McDONALD as principal of KEVIN McDONALD & ASSOCIATES

Second Third Party

MIKE PERO REAL ESTATE LIMITED

Third Third Party

PACIFIC COAST SURVEYS LIMITED

Fourth Third Party (Discontinued)

On the papers

Counsel:

A R Govind for Applicant D M Law for Plaintiffs

S Khatau for Defendant
L G Cox for First Third Party
K M Burkhart for Third Third Party

Judgment:

1 August 2025

JUDGMENT OF VAN BOHEMEN J

[on application for access to Court documents]

This judgment was delivered by me on 1 August 2025 at 2:30 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar Date……………………………..

CLARK v BOOKER [2025] NZHC 2142 [1 August 2025]

[1] Darryl Patterson and Judith Gilmour (the applicants) have applied under the Senior Courts (Assess to Court Documents) Rules 2017 (the Rules) for access to all pleadings in this proceeding, including the statement of claim, statements of defence, third party claims and interlocutory applications. They also seek access to any affidavits from experts, any initial disclosure and any Court minutes.

[2] Through their counsel, Mr Govind, the applicants say they are neighbours to the plaintiffs and the defendant at an address at Mangawhai Heads and are affected by the same issues and land covenant that arose in the proceeding. They say access to the documents would assist them and their lawyers to assess the prospects of bringing their own proceeding and might avoid wasting the time of the defendant and the Court. They seek the documents in the interests of open justice and maintaining the efficiency of the Court.

[3] The applicants also say they already know personal information of the parties and they and their lawyers would be prepared to abide by any conditions preventing disclosure of the documents or their contents to others and any other conditions that might be imposed.

[4] Counsel for the plaintiffs, the defendant, the first third party and the third third party advise that their clients oppose the request for access. I discuss the nature of their opposition below. I note, however, that counsel for the first third party, Transbuild Ltd, advises that the proceeding was settled before trial by agreement between the plaintiffs, the defendant and Transbuild on terms under which the parties would keep the subject of the agreement confidential and would not disclose it except to the extent required by law or necessary to obtain the benefit of the agreement.

Relevant provisions of the Rules

[5] Under r 8(1), every person has the right to access the formal court record relating to a civil proceeding. Under r 4, the formal court record includes a judgment, order, or minute of the court, including any record of the reasons given by a Judge. It follows that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NZHC 2142
Decision Date: 1 August 2025

CaseChat Overview and Summary

Darryl Patterson and Judith Gilmour, neighbours of the parties in the Clark v Booker proceeding, applied for access to all pleadings and related documents in the case. The applicants sought this information to assess the prospects of bringing their own proceeding related to a land covenant, in the interests of open justice and efficiency of the Court. The applicants argued they would not disclose the documents to others and would abide by any conditions imposed. The plaintiffs, the defendant, and the first and third third parties opposed the request, citing the confidentiality of the settlement reached in the proceeding. The Court considered the Senior Courts (Assess to Court Documents) Rules 2017, which provide the right of access to the formal court record, but not necessarily to other documents. The Court noted that, given the settlement, the protection of confidentiality and privacy interests had greater weight, and that the principle of open justice and freedom to seek, receive, and impart information were of lesser importance in this case.

The Court determined that the current situation was more akin to a post-hearing situation, and therefore, the protection of confidentiality and privacy interests had greater weight under Rule 13(c)(ii). The Court concluded that the applicants should not be granted access on the terms sought, but that they were entitled to access the formal court record as provided for in Rule 8(1) of the Rules. The Court denied the application for access to Court documents on the terms sought, while allowing access to the formal court record.

Orders