Director-General of Health v Humphreys

[2022] NZCA 359

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA742/2021
 [2022] NZCA 359

BETWEEN	DIRECTOR-GENERAL OF HEALTH Appellant
AND	PETER HUMPHREYS Respondent

Court:	Cooper P
Counsel:	S V McKechnie and T J Bremner for Appellant P Cranney for Respondent L T Meys as litigation guardian for S C F Anyon-Peters for Applicant
Judgment: (On the papers)	8 August 2022 at 2:30 pm

JUDGMENT OF COOPER P

AThe application for access to court documents on this Court’s file is granted so far as it relates to minutes, orders, judgments, pleadings and submissions. Counsel for the applicant is required to give an undertaking in the terms set out at [11]. The application is otherwise declined.

B        There is no order as to costs. 

____________________________________________________________________

REASONS

1. The Taikura Trust has made an application for access to documents held on the Court’s file in respect of this appeal, under the Senior Courts (Access to Court Documents) Rules 2017.

2. The documents which are subject to the application are described as:

   The court record and court file … including:  court judgments and minutes, applications, pleadings, transcripts, evidence, and any further documents which are filed in relation to these proceedings.

3. The application is made by Meredith Connell on behalf of Taikura Trust (the Trust).  The application states the reasons that for making the application in the following terms:

   Our client, Taikura Trust, is a party to similar proceedings in the Employment Relations Authority which were stayed pending the outcome of a related claim, Attorney-General v Fleming (CA371/2021).  We understand that the appeals in CA371/2021 and CA742/2021 are to be heard together because of their common issues. 

   Our client has a vested interest in the progress and outcome of proceeding CA742/2021 as it will significantly impact (and perhaps be determinative of) the Employment Relations Authority proceedings to which Taikura Trust is a party.

4. The application contains a statement that the application is advanced on the basis that there could be an undertaking that any confidential documents were held only by counsel and not disclosed to the Trust.

5. A similar application was advanced in the Employment Court, whose judgment has given rise to the substantive appeal.  In that Court, Chief Judge Inglis ruled the Trust could have access to minutes, orders and judgments made in the proceedings, but otherwise declined the application.[1] 

   [1]Humphreys v Humphreys [2022] NZEmpC 111 at [20].

1. Mr Cranney for the respondent opposes the application to the extent that it seeks access to more than the equivalent of what was disclosed by the Employment Court, namely the minutes, orders and judgments made in the proceedings before this Court.  Mr Meys as litigation guardian takes a slightly more permissive approach, having no objection to pleadings and submissions being disclosed as well as minutes, orders and judgments made in this Court, provided the Trust provides the undertaking referred to in the application.  Mr Meys explains that the notes of evidence, affidavits and briefs contain private information including information of a personal nature in respect of S, the child for whom he acts.  Mr Bremner for the appellant abides by the Court’s decision, noting he has no objection to Mr Meys’ proposal.

2. The relevant considerations for such an application are set out in r 12 of the Senior Courts (Access to Court Documents) Rules.  The most relevant considerations in the present case are the protection of confidentiality and privacy interests (including those with children and other vulnerable members of the community (r 12(d)), the principal of open justice (r 12(e)) and the freedom to seek, receive, and impart information (r 12(f)).  The list of matters ends with a further provision, r 12(h) which enables the judge to take into account any other matter the judge thinks appropriate.  Relevant here is the fact that the Taikura Trust is not a party to the present proceedings but merely wishes to ensure that it is able to monitor what takes place for the purposes of its own litigation interest in a separate case.

3. Under r 13 of the Rules, the protection of confidentiality and privacy interests may require that access to documents be limited before the substantive hearing (r 13(a)).  During the substantive hearing, open justice has greater weight than at other stages (r 13(b)).  After the substantive hearing open justice has greater weight in relation to documents that have been relied on in the determination than other documents; but the protection of confidentiality and privacy interests has greater weight than will be the case during the substantive hearing (r 13(c)).

4. In this Court it is necessary to approach those considerations having regard to the fact that a hearing in the Employment Court has already taken place and the hearing of the appeal in this Court will take place on the basis of the record already established.  In such circumstances, I consider it is appropriate to treat the proceedings as still at the substantive stage so that open justice has greater weight than at other stages of the proceedings.

5. In these circumstances I am nevertheless satisfied that the protection of confidentiality favours the stance adopted by Mr Meys.  I consider there should be access to the minutes, orders and judgments made as the appeal proceeds to hearing, but there should not be access to notes of evidence, affidavits, and briefs which form part of the record as it comes to this Court.  I also consider that access to pleadings and submissions should be granted, subject to the undertaking offered by counsel for the Trust.  This is a similar position as was reached by the Chief Judge of the Employment Court.

6. If the application is granted in those terms, I see no need for there to be an order for confidentiality.  It is the formal record of the Court that has been made available.  Counsel for the Trust will need to give an undertaking that confidential information included as part of the submissions and pleadings will be held only by counsel and will not be disclosed to the Trust.

Result

1. The application for access to Court documents on this Court’s file is granted so far as it relates to minutes, orders, judgments, pleadings and submissions. Counsel for the Applicant is required to give an undertaking in the terms set out at [11]. The application is otherwise declined.

1. There is no order as to costs. 

Solicitors:
Simpson Grierson, Wellington for Appellant
Oakley Moran, Wellington for Respondent
Neilsons Lawyers, Auckland for S
Meredith Connell, Auckland for Applicant