Commissioner of Police v Salter

[2025] NZHC 1330

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-002622

[2025] NZHC 1330

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

RONALD THOMAS SALTER

First Respondent

NATALIE MITCHELL SALTER
Second Respondent

SALTERS CARTAGE LIMITED
Third Respondent

RONALD THOMAS SALTER and
AKL TRUSTEE LIMITED as trustees of the Bolderwood Trust
Fourth Respondent

RONALD THOMAS SATLER, NATALIE MITCHELL SALTER and

AKL TRUSTEE LIMITED as trustees of the Salter Family Trust

Fifth Respondents

Hearing:	On the papers
Judgment:	27 May 2025

JUDGMENT OF DOWNS J

(Conditions of access to court file)

This judgment was delivered by me on Tuesday, 27 May 2025 at 11 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

COMMISSIONER OF POLICE v SALTER [2025] NZHC 1330 [27 May 2025]

The issue

[1]                  In 2015, Sarah Ferguson’s son was welding a large tank at Salters Cartage Ltd.1 The tank exploded. Ms Ferguson’s son died. Investigations by WorkSafe and Police resulted in charges under the Health and Safety in Employment Act 1992 and Hazardous Substances and New Organisms Act 1996. Salters  Cartage  and  its  Chief Executive (and Managing Director), Ronald Salter, pleaded guilty to those charges. The Commissioner of Police2 later brought a claim against the respondents under the Criminal Proceeds (Recovery) Act 2009. The claim settled in the first week of the hearing: Salters Cartage and Mr Salter forfeited property worth approximately

$4 million while the Commissioner abandoned aspects of his case.3 Ms Ferguson applied to access documents in connection with the claim, including submissions and (untested) evidence, to highlight “her continued plight to improve health and safety in the waste oil industry”. I approved access, subject to redactions for matters governed by suppression orders.4

[2]                  All of which introduces the issue: what conditions, if any, should now attach to access under the Senior Courts  (Access  to  Court  Documents)  Rules  2017?  The respondents contend Ms Ferguson should be prohibited from publishing or disclosing the documents (or their content) without leave of the Court, other than publication or disclosure to “any relevant regulators”, such as the Coroner or Auckland Council. Ms Ferguson and the Commissioner oppose the imposition of the condition.

Principle

[3]                  Every person has the right to access the formal court record relating to a civil proceeding.5 Pleadings, submissions and evidence do not, however, form part of the formal court record.6 A Judge may grant access to any document, in whole or part, subject to conditions the Judge thinks appropriate.7

1      Salters Cartage.

2      The Commissioner.

3      Commissioner of Police v Salter [2024] NZHC 3069.

4      Minute (No 5) dated 18 December 2024.

5      Senior Courts (Access to Court Documents) Rules 2017, s 8(1).

6      Rule 4.

7      Rule 11(7)(a)(ii).

[4]                  In determining access — and conditions — the Judge must consider the nature of the request; the reasons for it; and the following, if relevant:8

(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.

[5]Rule 13(c) provides:

(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

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

The arguments (in short)

[6]                  The respondents say they are entitled to the protection of confidentiality and privacy in respect of untested evidence and submissions. While Ms Ferguson’s purpose in seeking access is laudable, publication or disclosure beyond relevant regulators is unnecessary. Should wider publication (or disclosure) be thought necessary, Ms Ferguson would be able to seek the Court’s leave. Consequently, the

8      Rule 12.

respondents argue the condition strikes an appropriate balance between facilitation of Ms Ferguson’s purpose and protection of their rights.

[7]Ms Ferguson and the Commissioner say the condition is unnecessary given:

(a) her heightened interest in the case and (b) suppression orders already govern particularly sensitive information.

Analysis

[8]                  The applicable principles pull in competing directions. Open justice and the freedom  to  impart   information   favour  the  absence  of   conditions.   So   too   Ms Ferguson’s interest in the claim; and the fact it was brought in the public interest following the death of a young man at a workplace. But the claim has concluded; aspects of the Commissioner’s case were abandoned; the evidence went untested; and considerations of confidentiality and privacy remain relevant.

[9]                  No case is directly on point. Crimson Consulting Ltd v Berry involved a purely civil matter.9 R v Q, a criminal matter, is a little more analogous, in that the parents of the (deceased) victim sought a copy of the court file.10 Winkelmann J granted access to parts of the file, including sentencing submissions and affidavits, on condition there be no publication. Like conditions have been imposed in relation to a complainant.11

[10]              Given the mix, including, obviously, Ms Ferguson’s purpose in seeking access, I consider the proposed condition does strike  an  appropriate  balance  provided  “any relevant regulators” includes any statutory body, government agency, or court, with an interest in (a) workplace safety; (b) waste oil; or (c) both.

Result

[11]Access is subject to these conditions:

(a)Ms Ferguson may disclose any document in the Court file to any relevant regulators as defined at [10].

9      Crimson Consulting Ltd v Berry [2018] NZCA 460 at [39].

10     R v Q [2014] NZHC 2945.

11     Re Application for Access to Court File in R v Butler [2023] NZHC 599.

(b)Ms Ferguson may not otherwise publish or disclose, in part or in whole, any pleadings, submissions, or affidavits without leave of the Court.

……………………………..

Downs J

Solicitors/Counsel:

Meredith Connell, Auckland. RM Mansfield KC, Auckland. SL Cogan, Auckland.

JP Cundy, Auckland.