Commissioner of Police v Borlase

[2017] NZHC 2753

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2123 [2017] NZHC 2753

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

STEPHEN JAMES BORLASE First Respondent

CATHERINE BORLASE Second Respondent

CATHERINE BORLASE AND RLA TRUSTEE SERVICES NO 51 LIMITED Third Respondent

PROJENZ HOLDINGS LIMITED Fourth Respondent

Hearing:	On the papers
Counsel:	M J Hammer and L J Fraser for Applicant R Mansfield and S Lack for Respondents
Judgment:	10 November 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 10 November 2017 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Meredith Connell, Auckland

COMMISSIONER OF POLICE v BORLASE [2017] NZHC 2753 [10 November 2017]

[1]      I have before me an application by the media for access to the Court’s file in this matter.   The application is opposed by the first, second, third and fourth respondents.

Background

[2]      This   matter   concerns   an   application   for   restraining   orders.      The Commissioner claims that Mr Borlase engaged in significant criminal activity, namely, the systematic corruption and bribery of officials at Rodney District Council and at Auckland Transport.  He was found guilty by Fitzgerald J on these matters at a

trial, dated 9 December 2016.1

[3]      The Commissioner sought restraining orders in relation to property said to be the proceeds of Mr Borlase’s criminal activity. The application was initially dealt with, and restraining orders granted, on a without notice basis. An on-notice procedure was then commenced.  The parties have since agreed to restraining orders pending the filing and determination of an application for forfeiture.

[4]      The  applications  for  restraining  orders  were  accompanied  by  detailed evidence, including financial information.

The media application

[5]      The media apply for access to the following documents: (a)    The application for restraining orders;

(b)      Any documents filed in opposition; and

(c)       Any minutes/rulings from the Court.

[6]      The reasons said to support the application are:

(a)       To ensure fair and accurate reporting relating to the restraining of assets;

(b)The matters concern the bribery of public officials and ill-gotten gains as a result of such bribery and corruption; and

(c)       The contracts were for public works and, with respect, it is submitted that the matter has a high degree of public interest.

Framework

[7]      Access to a Court file is governed by the Senior Courts (Access to Court

Documents) Rules 2017 which came into force on 1 September 2017.2

[8]      The following rules are relevant for present purposes.  Rule 12 states:

12       Matters to be considered

In determining a request for access under rule 11, the Judge must consider the nature of, and the reasons given for, the request and take into account each of the following matters that is relevant to the request or any objection to the request:

(a)       the orderly and fair administration of justice:

(b)       the right of a defendant in a criminal proceeding to a fair trial:

(c)       the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice:

(d)       the   protection   of   other   confidentiality   and   privacy   interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person:

(e)       the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions):

(f)       the freedom to seek, receive, and impart information:

(g)       whether a document to which the request relates is subject to any restriction under rule 7:

(h)       any other matter that the Judge thinks appropriate.

[9]      Relevantly, r 13 also provides:

13       Approach to balancing matters considered

In applying rule 12, the Judge must have regard to the following:

(a)       before the substantive hearing, the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited:

(b)       during the substantive hearing, open justice has—

(i)       greater weight than at other stages of the proceeding; and

(ii)      greater  weight  in  relation  to  documents  relied  on  in  the hearing than other documents:

(c)       after the substantive hearing, —

(i)        open justice has greater weight in relation to documents that have been relied on in a determination than other documents; but

(i)        the protection of confidentiality and privacy interests has greater weight than would be the case during the substantive hearing.

[10]     As the Court of Appeal recently noted in the Greymouth Petroleum Holdings

Ltd v Empresa Nacional Del Petróleo:3

[25]      These  divisions  reflect  that  during  the  substantive  hearing  open justice has greater weight, in particular in relation to documents admitted in evidence.   When a court is engaged in hearing a dispute its workings, including documents referred to or relied on, should be open to full scrutiny by all members of the public, unless there are particular and strong reasons to the contrary.   The public should be able to follow and understand the hearing process.   However, prior to and after the substantive hearing, the importance  of  public  scrutiny  is  less,  as  the  court  is  not  hearing  and resolving the dispute.  Prior to the hearing there is no guarantee the case will go to hearing at all.  Therefore open justice has less weight.  The parties are entitled to the protection of confidentiality and privacy within reasonable limits, given that they have not at that point aired the dispute in public. After the substantive hearing the need for public scrutiny diminishes in importance as time moves on.  Parties are entitled to expect that the need for open justice has been met by full access during the substantive hearing stage, and that personal information not part of the formal court record or the decision will be given protection as the years go by.  This is particularly so in a civil case as distinct from a criminal case where these considerations, while relevant,

3      Greymouth Petroleum Holdings Ltd  v  Empresa  Nacional  Del  Petróleo  [2017] NZCA 490 (footnotes omitted).

may have less weight because of the particular public interest in criminal prosecutions.

Assessment

[11]     In the present case, given the underlying criminal activity, the public interest in the proceedings is strong.  However, the restraining order proceedings are interim in nature.4  The substantive proceedings relating to the property are foreshadowed forfeiture proceedings.  Furthermore,  as  the  respondents  have not  challenged  the application for restraining orders, there is no active dispute before the Court.   In these circumstances, I consider that privacy considerations, together with the orderly management of the proceedings, outweigh the immediate need for access to the full Court  file.  I,  however,  will  grant  access  to  both  a  copy  of  the  application  for

restraining orders (but not the supporting affidavits) and the court order. [12]           Accordingly:

(a)       Access to the full Court file is denied;

(b)Access to a copy of the application for restraining orders and a copy of the restraining order is granted.

4      Criminal Proceeds (Recovery) Act 2009, s 37(1).