Cooper-Radke v Fildes

[2025] NZHC 2686

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2023-425-000045

[2025] NZHC 2686

UNDER

the Family Protection Act 1955 and Part 18 of the High Court Rules 2016

IN THE MATTER

of the Estate of James Wilson Cooper

BETWEEN

ROBYN ANN COOPER-RADKE

Plaintiff

AND

ERYNNE RUTH FILDES, STEPHEN CHARLES STUART WATT, BRENDAN FRANCIS HALL and PAUL LEWIS TANTI

as Executors of the Estate of James Wilson Cooper

First Defendants

AND

ERYNNE RUTH FILDES

Second Defendant

AND

BENTWARD PTY LIMITED

Third Defendant

Hearing:

On the papers

Counsel:

S H Marsden for Plaintiff

J W A Johnson for First Defendants

D A T Chambers KC for Second Defendant V Ammundsen for Allison Cooper

Judgment:

16 September 2025

JUDGMENT OF PRESTON J

(Application for access court documents)

COOPER-RADKE v FILDES [2025] NZHC 2686 [16 September 2025]

[1]    The applicant, James Radke on behalf of himself and his brother Christopher Radke, seeks access to court documents in relation to this proceeding. The application is brought under the Senior Courts (Access to Court Documents) Rules 2017 (the Rules).

[2]The applicant requests access to:

(a)“the final order” in the proceedings; and

(b)“any judgement”.

[3]The application is made on grounds:

1The applicant, James Radke, and his brother, Christopher Radke, received payments from entities interested in the litigation pursuant to a deed of settlement which the applicant understands were perfected by final orders.

2The applicant requires a copy of the final orders and judgement that record the orders which give effect to the above transactions to provide the applicant with sufficient information pertaining to the payments received in order for the applicant to obtain taxation and any other necessary advice.

The proceedings

[4]    The plaintiff Ms Cooper-Radke is the daughter of the late James Wilson Cooper. The plaintiff [the present applicant’s mother] brought a claim under the Family Protection Act 1955 against her father’s estate and the second defendant, who is her sister.

[5]    The proceeding was settled in 2023 after the parties reached a confidential settlement at mediation. The parties subsequently sought that the settlement, reflected in a Deed of Family Arrangement (Deed), be perfected by consent orders of the Court.

[6]On 18 December 2023 the orders were sealed.

Principles

[7]    Under the Rules every person has a right to access the formal court record relating to a civil proceeding.1 The formal court record, relevantly, includes any judgment, order, or minute of the court, including any record of the reasons given by a Judge.2

[8]    This general rule is subject to restriction under certain enactments, including relevantly the Family Protection Act 1955.3

[9]    In those circumstances, a person may not access a document, a court file, or any judgment or order that relates to the proceeding unless:4

(a)the Judge is satisfied that there is good reason for permitting access; or

(b)the person is a party to that proceeding.

Views of parties

[10]   Through counsel, the plaintiff and the first defendant executors all consent to the application.

[11]   Ms Allison Cooper, who is a party to the Deed attached to the memorandum seeking consent orders, does not consent. Further, and notwithstanding the separate advice of counsel apparently on behalf of all the executors, Lady Chambers KC for Ms Erynne Fildes, separately represented, advises Ms Fildes opposes the application both in her capacity as executor and in her personal capacity as second defendant.

[12]   The opposition of Ms Allison Cooper and Ms Fildes is on essentially the same grounds; that:

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

2      Rule 4, definition of “formal court record”, para (d).

3      Rule 7(2)(i).

4      Rule 7(1)(a) and (b).

(a)the settlement was reached at mediation and was subject to mediation privilege;

(b)the Deed which was annexed to the joint memorandum of counsel seeking consent orders of the court contains a confidentiality clause, stipulating that the parties agree that the settlement is to remain confidential to the parties and their advisors except in certain narrow exceptions;

(c)Ms Allison Cooper submits through counsel Ms Ammundsen that although there is a “narrow exception” to confidentiality under the Deed that may apply in certain circumstances, they “are not in play at this time”;

(d)further, Ms Fildes’ counsel is instructed that both the applicants “have been advised by the executors’ advisors that there were no tax implications in regard to the distribution to them [under the Deed] which they have received…”.

Discussion

[13]   I have reviewed the file, the Deed and the final orders of the Court in light of the relevant principles under the Rules.

[14]   The application is brought under r 11. In determining it I must consider the nature of, and the reasons given for, the request. Here, I take into account the following matters relevant to the request and the objection thereto:

(a)the orderly and fair administration of justice;5

(b)the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or

5      Rule 12(a).

matters that are commercially sensitive, than is necessary to satisfy the principle of open justice;6

(c)the protection of other confidentiality and privacy interests and any privilege held by, or available to, any person;7

(d)freedom to seek, receive, and impart information.8

[15]   I have already noted the fact—relevant on the present application—that the document sought (there being no judgment issued in the proceeding) to which the request relates is subject to restriction under r 7. I may also have regard to any other matter that I think appropriate.9

[16]   In applying r 12, I must have regard to the principles that after the substantive hearing (here, without hearing and by consent; the proceedings being settled by mediation):10

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

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

[17]   The request is of narrow ambit, albeit the final orders are comprehensive in terms of the parties’ agreement. The Deed records that it is conditional on the Court making consent orders.

[18]   Although the applicants were not parties to the proceedings, for all the following reasons I am satisfied the applicants’ request for access to a copy of the final orders of the court should be granted.

6      Rule 12(c).

7      Rule 12(d).

8      Rule 12(f).

9      Rule 12(h).

10     Rule 13(c)(i) and (ii).

[19]   First, the provisions of the final orders reflecting the Deed expressly referred to the applicants and provided for matters relevant to them.

[20]   Second, in so doing the orders confer both a benefit and a legal burden upon the applicants, specifically in relation to any (and all) tax obligations associated with distributions made to them.

[21]   Third, the executors have, through counsel, consented (noting the distinction, and incongruity of Ms Fildes’ position with that statement, I treat it accordingly as indication that all executors but Ms Fildes consent).

[22]   Fourth, in those circumstances I am satisfied the request is made for bona fide purposes by persons directly affected by the orders of the court.

Result

[23]   There is good reason to grant access to the final Orders of the Court, dated  18 December 2023.

[24]There is an order accordingly.

………………………………………

Preston J

Solicitors:

Fyfe Karameana Law Ltd, Wanaka Todd & Walker Law, Queenstown Shane Campbell & Associates,

Saunders Robinson Brown, Christchurch

Vicki Ammundsen Trust Law Limited, Auckland Marino Law, Mermaid Beach, Queensland, Australia

Counsel:

S H Marsden, Barrister, Christchurch Lady D A T Chambers KC, Auckland J W A Johnson, Barrister, Auckland