Deng v Ye

[2018] NZHC 928

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE REGISTRY

CIV-2016-404-1022

[2018] NZHC 928

BETWEEN

JIE DENG

Plaintiff

AND

HUIFANG YE

Defendant

PUBLIC TRUST

Second Defendant in 1005

Teleconference:

On the papers

Counsel:

N W Woods for the Plaintiff R Reed for the Defendant

S Zhao for Applicant Mr Hao Wang

Judgment:

3 May 2018

JUDGMENT OF PALMER J

(Access to court file)

This judgment is delivered by me on 3 May 2018 at 12.30pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Counsel/Solicitor:

Prestige Lawyers Limited, Auckland Rice Craig, Auckland

Public Trust Brookfields, Auckland Amicus Law, Auckland

DENG v YE [2018] NZHC 928 [3 May 2018]

Application

[1]                 Mr Hao Wang is the brother of the deceased, Mr Jun Xie, and a current shareholder and recently removed director of Sincessta International Corporation (NZ) Ltd. Through his counsel, Mr Zhao, he applies for access to all documents and court files regarding the recall of the grant of administration under the Senior Courts (Access to Documents) Rules 2017 (the Rules).

Rules

[2]                 Rule 8(1) and (2) of the Senior Courts (Access to Court Documents) Rules 2017 provide:

(1)Every person has the right to access the formal court record relating to a civil proceeding.

(2)Every person has the right to access any document or court file relating to an application for a grant of administration or an application for a recall of a grant of administration, under the Administration Act 1969”.

[3]                 Rule 5 provides the Rules do not affect the court’s inherent power to control its proceedings and a judge may direct files of any kind may not be accessed without the permission of the judge.

[4]                 A rule equivalent to r 8 was first inserted into the Code of Civil Procedure, the predecessor to the High Court Rules, as r 582A in 1973.1 Subsequent amendments until the 2017 Rules retained a similar structure to that version.2 Each  of those versions included a specific provision allowing the Judge to override the right of access to such documents or files. Greig J exercised that ability to override access in 1992 in Re S (dec’d), when he restricted search of a will and affidavit which were unnecessary to the disposition of the estate or elucidation of the will and would cause needless offence and injury to members of the deceased’s family.3

1      Supreme Court Amendment Rules 1973, r 2.

2      Judicature Act 1908, sch 2, r 66, substituted by the Judicature Amendment Act (No 2) 1985, s 10; Judicature Act 1908, sch 2, r 3.7, substituted by the Judicature (High Court Rules) Amendment Act 2008, s 8(1); Judicature Act 1908, sch 2, r 3.7, substituted by the High Court (Access to Court Documents) Amendment Rules 2009, r 4.

3      Re S (dec’d) (1992) 6 PRNZ 13 (HC) at 15.

Parties’ position

[5]Both parties oppose the application:

(a)Ms Reed, for Ms Ye disagrees that these proceedings “are squarely about the issue of the recall of grant of administration” and submits the application has not been particularised. Ms Reed notes no document establishes the relationship between Mr Wang and Mr Xie, or establishes counsel’s authority from Mr Wang.

(b)Mr Woods is instructed by Ms Deng that Mr Wang told her he has not instructed Mr Zhao to make the request and has no knowledge of it and he has not agreed Mr Zhao be involved in the case.  Otherwise, Mr Woods submits there are highly sensitive interests of privacy, and confidential business matters between the parties, at issue in the case that weigh against providing access to the court documents. He submits Mr Wang has no legitimate interest to the court documents prior to hearing and he has been involved in “a plethora of litigation” in China which is likely his reason for requesting access.

Decision

[6]                 I reject Ms Reed’s submission questioning whether the proceedings are squarely about recall of grant of administration. They clearly are, as illustrated by  the application for summary judgment that sought recall of the grant of letters of administration and the order in the summary judgment of 12 March 2018 recalling the grant of letters of administration.4

[7]                 Counsel for both parties appear to be under the misapprehension that the application is for the exercise of the Court’s discretion to grant access to court documents under r 11. However, r 8(2) provides “every person has the right” to documents “relating to an application for a grant of administration”, subject to any judicial direction otherwise under r 5.

4      Deng v Ye [2018] NZHC 391 at [48](a).

[8]                 There is a distinct paucity of statements as to the purpose of that rule in case law and even texts such as Dobbie’s Probate and Administration Practice.5 I  consider it is likely the purpose is to allow those with a potential interest in an estate to discover how it is to be, or has been, distributed. That would enable them to exercise any legal rights they may have.

[9]                 Rules 8(2)’s conferral of a “right” on “every person” is strong language. While r 5 empowers me to set that limits on access in relation to any rule, I consider that power should only be exercised contrary to the right conferred by r 8(2) with good reason, given the otherwise mandatory nature of the default right.

[10]              I do not consider either party has provided sufficient ground to justify overriding Mr Wang’s right of access to the file. Contrary to Ms Reed’s submission, he does not need to establish his relationship with Mr Xie. Contrary to Mr Woods’ submission, he does not need a “legitimate interest”. Mr Woods does not identify what matters on the file are highly sensitive or confidential and does not provide any evidence to support the assertions. And if Mr Wang’s reason for access is related to Chinese litigation, as Mr Woods suggests, there is nothing to suggest that disqualifies him from accessing the file under r 8(2).

[11]              Accordingly, I grant Mr Wang’s application for access to the file of CIV 2016-404-1022. As an officer of the Court, Mr Zhao will be able to confirm to the Registry that he is instructed by Mr Wang to make the application.

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Palmer J

5      John Earles, WLB Douglas, Chris Kelly, Greg Kelly Dobbie’s Probate and Administration

Practice (6th ed, LexisNexis NZ Ltd, Wellington, 2014).