Fuller v District Court at Waitakere

[2025] NZHC 823

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000336

[2025] NZHC 823

IN THE MATTER

of an application for judicial review

BETWEEN

PETER MALCOLM FULLER

Applicant

AND

DISTRICT COURT OF NEW ZEALAND AT WAITAKERE

Respondent

Hearing:	3 April 2025
Appearances:	Plaintiff in Person
Judgment:	8 April 2025

JUDGMENT OF VENNING J

This judgment was delivered by me on 8 April 2025 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors/Counsel:           M J Mortimer-Wang, Barrister, Auckland

Crown Law, Wellington

Copy to:  Applicant

FULLER v DISTRICT COURT OF NEW ZEALAND AT WAITAKERE [2025] NZHC 823 [8 April 2025]

Introduction

[1]                 In a ruling delivered 22 December 2022,  Judge  L  Tremewan  declined  Peter Fuller’s application for access to Court documents.1 Mr Fuller seeks to judicially review Judge Tremewan’s decision.

Procedural background

[2]                 Mr Fuller represents himself. These proceedings were initially struck out by Jagose J as an abuse of process.2 Jagose J considered Mr Fuller was seeking to overturn the Judge’s decision without pursuing an appeal which was available to him. In a decision delivered on 31 May 2024, the Court of Appeal allowed Mr Fuller’s appeal against the strike-out and set it aside.3 The Court noted that the Judicial Review Procedure Act 2016 expressly permits the High Court to grant relief even if an applicant has a right of appeal. The Court of Appeal was not required to address the merits of Mr Fuller’s application for judicial review nor whether there were other grounds to dismiss the proceeding as an abuse of process.

[3]As is customary, the District Court abides the decision of this Court.

[4]                 The Court appointed Mr Mortimer-Wang as amicus to assist it. Mr Mortimer- Wang filed comprehensive submissions to assist the Court. Unfortunately, he was taken unwell and advised the Registry he was unable to attend the hearing. At the outset of the hearing, I advised Mr Fuller that Mr Mortimer-Wang was ill and unable to attend. Mr Fuller was content to proceed with his application for judicial review without Mr Mortimer-Wang being present. The hearing proceeded on that basis and with Mr Fuller’s agreement.

Factual background

[5]                 Mr Fuller’s application for access to Court documents was made on a standard form. He noted the documents he wanted access to related to “Operation Supersaver and all appearances between 1-01-2019 – 10-10–2022 and CRI 2020-0900005254 and

1      Re an application by Peter Malcolm Fuller DC Waitākere, 22 December 2022.

2      Fuller v District Court Judge L Tremewan [2023] NZHC 959.

3      Fuller v District Court at Waitākere [2023] NZCA 634.

previous  appearances  between  01-01-2019  –  10-10-2022.”     He said he wanted documents and audio files from those appearances.

I am requesting these documents including All source audio files used from transcript reading, any and all written transcripts associated with the said source files, any and all bail bonds, charging documents, contracts, paperwork, etc… or unilateral contracts signed or non-signed (or electronically non-signed) by all parties concerned, this request also pertains to any and all paperwork or contracts received by any third party interlopers such as the New Zealand police corporation.

[6]The reason he advanced for the request was:

I require these documents as there have been many inaccurate and false words and statements made by the transcripts team. These particular false statements have been deliberately recorded in disorder to coverup damming evidence of criminal activity within the district courts performed by district court employees. These falsehoods were concurred by Carl Lewens – Manager, Justice Services – Waitemata .. who subsequently has edited and re-edited transcripts from previous appearances which are still inconsistent and erroneous. All of the files I have requested are required for analysis by an independent digital forensic expert and may be potentially used as evidence within a court of competent jurisdiction.

[7]                 As Mr Fuller explained to the Court during his submissions in support of the judicial review, he sought the audio files as he considered that he had been assaulted at one appearance during the course of the proceedings in the District Court, which he considered would have been captured on the audio file.

The District Court decision

[8]                 Judge Tremewan noted that, by way of background Mr Fuller had made various requests of the Court for access to Court records and that the Court had provided transcripts of hearings to him and had granted further access by allowing Mr Fuller to come to Court to listen to audio files under staff supervision.

[9]                 The Judge noted Mr Fuller essentially alleged various Court personnel had tampered with the audio records. Mr Fuller had been given an opportunity to provide an appropriately qualified independent expert to potentially undertake a forensic analysis (of the Court audio file). The Judge noted such a person would need to have the requisite credentials to be regarded as independent and that, while Mr Fuller had provided the Court with a name and number of a purported expert, there was no

evidence that he was a suitably qualified independent forensic expert in the relevant field.

[10]              The Judge then noted that there was no general right for Mr Fuller to access the audio records and that his application was to be considered under r 11. The Judge noted that r 11(2) set out the form of the request and what was to be included in the request. Judge Tremewan then noted that under r 11(8) a Judge may refuse an access request for the sole reason that any of the r 11(2) requirements were not complied with, citing R v Moananui.4 The Judge did not consider Mr Fuller’s request and the information he had provided satisfied the conditions under r 11(2). She was not satisfied the proposed examiner was an appropriate recipient of Court records. No information had been provided as to the proposed examiner’s ability to undertake the forensic examination, there was no information as to his ability to appropriately store and keep safe the records and no undertaking had been provided that he would abide by directions of the Court relating to the release. The Judge considered that something more than Mr Fuller’s general allegation of tampering was required before the Court would direct the access Mr Fuller sought. More was needed to satisfy the Court that Mr Fuller’s application was more than a simple fishing expedition. For those reasons Judge Tremewan declined the application.

The application for judicial review

[11]              Mr Fuller’s statement of claim does not follow the usual format for a statement of claim. It is deficient in a number of respects. While he pleads the factual background to his request for a copy of the audio file, he then comments on the various paragraphs of the Judge’s decision. Passages of the document refer to the Judge in an offensive and inappropriate way. The claim does not plead relief. However, accompanying the statement of claim was a document styled “interlocutory application seeking relief”. In that document, Mr Fuller sought his own costs of preparing and filing legal documents of $28,187.50 and also sought general damages of $50,000. The document contained general allegations of dishonesty on the part of the Judge (again, irresponsibly and without a basis). It also alleged breaches of the

4      R v Moananui [2022] NZHC 357.

Official Information Act 1982 and The New Zealand Bill of Rights Act 1990. Reference was also made to tort law.

Preliminary points

[12]              Despite the difficulty in responding to the way Mr Fuller presented his claims and the form of the proceeding, counsel assisting Mr Mortimer-Wang filed comprehensive submissions to assist the Court.

[13]              A number of preliminary points arise. The first is, there is no basis to address Mr Fuller’s allegation of the breach of the Official Information Act. The Official Information Act does not apply to information held by Courts.5

[14]              Next, the general allegation of the breach of natural justice and contraventions of s 27(1) of the New Zealand Bill of Rights Act cannot be sustained. Essentially, Mr Fuller’s complaint in the current proceeding is with the merits of the Judge’s decision to decline his application for a copy of the audio file to be released to him. Mr Fuller had the opportunity to set out the basis upon which he sought the access and did so in quite some detail. Further, the Court Manager, Mr Lewens, seems to have gone to some length to assist Mr Fuller in relation to the need to provide information about his proposed expert. The general allegation of breach of natural justice lacks any foundation.

[15]              At various paragraphs of his documents, Mr Fuller complains about decisions made to trespass him from the Waitakere District Court and other issues in relation to protocol around security of the District Court. Those matters are beyond the scope of these current proceedings.

[16]              Next, and as discussed with Mr Fuller during the course of his submissions, the relief he seeks, payment of his costs in preparing the judicial review proceeding and the general damages is not relief that would be awarded on an application for judicial review. The best Mr Fuller could expect if the Court agreed with his

5      Official Information Act 1982, s 2, definition of “official information” at (f).

application would be for the Court to remit the matter back to the District Court for that Court to reconsider his application for access to a copy of the audio file.

Decision

[17]              On my review of Judge Tremewan’s decision, I consider the Judge effectively declined Mr Fuller’s application on the basis it failed to comply with the requirements of r 11 before considering the application substantively. In particular, I note the Judge referred to r 11(8), which provides:

…

(8) Without limiting the powers in subclause (6), the Judge may refuse a request for access under this rule solely for the reason that the request does not comply with subclause 2(a), (b), (c) or (d).

[18]Clause 2 provided:

(2)A person may ask to access any document by providing the Registrar of the relevant court registry with a letter, an email, or any other written form of request that—

(a)identifies the person and gives the person’s address; and

(b)sets out sufficient particulars of the document to enable the Registrar to identify it; and

(c)gives reasons for asking to access the document, which must set out the purpose for which the access is sought; and

(d)sets out any conditions of the right of access that the person proposes as conditions that he or she would be prepared to meet were a Judge to impose those conditions (for example, conditions that prevent or restrict the person from disclosing the document or contents of the document, or conditions that enable the person to view but not copy the document).

[19]              I agree with counsel assisting that Mr Fuller’s request seems to have met the criteria in r 11(2)(a)–(c). However, Mr Fuller did not propose any conditions of access as referred to in r 11(2(d).

[20]              I interpolate here that Mr Fuller noted that, apparently, a different form can be downloaded from the Ministry of Justice website which does not expressly provide for an applicant to include conditions. However, the application Mr Fuller completed

in this case did have provision for the insertion of conditions. In the space provided for conditions Mr Fuller simply noted “to withhold audio files required as evidence is a CRIMINAL ACT PUNISHABLE IN LAW”.

[21]              In any event, the rules are express and clear. Conditions are provided for under r 11(2)(d). Rule 11(8) confirms that a request may be declined solely for reason the request does not comply with the rules.

[22]              Counsel assisting addressed full submissions on the issue as to whether the rule might apply if a person deliberately declines to provide conditions. However, in the present case, given that the request was for a copy of a Court record, namely the audio file, to be released to a third person for analysis, it was incumbent upon Mr Fuller as the applicant to set out the conditions upon which it was proposed the copy would be released to his expert, and how the copy was to be dealt with. It was also incumbent upon him to provide information regarding the identity, qualifications and independence of the proposed expert. Mr Fuller failed to do so. Mr Fuller failed to address any of those issues.

[23]              Access is defined in the Rules as “means to search, inspect or copy under the supervision of an officer of the court”. The reference to “under the supervision of an officer of the court” highlights the significance and, in this case, the importance of appropriate conditions attaching to the copying and subsequent use of an audio file intended to be released to a third party.

[24]              In the circumstances, the Judge was entitled to decline the application on a preliminary basis in reliance on r 11(8).

[25]              As there was no procedural error in the Judge approaching the matter in that way and she was entitled to rely on r 11(8), the application for judicial review must be dismissed.

[26]              Further, relief in judicial review proceedings is discretionary. Mr Fuller’s request for a copy of the audio files is based on his premise that the audio files provided to him, which he has listened to, have in some way been tampered with. Apart from

his bare assertion to that effect, however, there is, as the Judge noted, nothing to support that general allegation. Mr Fuller refers in his materials to concessions by  Mr Lewens that the file  had  been  altered.  However,  as  I  read  the  email  from Mr Lewens to Mr Fuller, attached as his Exhibit 3, it does not support that suggestion. Mr Lewens notes:

…I have also taken the time to listen to the audio relating to your hearing on the 28th July 2021 before Judge Cassidy. I have attached an updated transcript which is a true and accurate version of hearing. I did identify some words which were marked as inaudible and these are now on the transcript.

If you can provide me with the date of the hearing and CRI number that relates to the word BLUE-INK I will review this for you as well. …

[27]              Mr Lewens then went on to ask Mr Fuller what he was referring to in relation to an internal investigation, and provided him with appropriate contact details. The short point is, there is nothing on the information provided by Mr Fuller to support the suggestion the Court audio file has been tampered with.

[28]              For all of the above reasons, Mr Fuller’s application for judicial review is dismissed.

Costs

[29]              Given the issues raised by Mr Fuller, it was appropriate for the Court to appoint counsel to assist. Mr Mortimer-Wang’s submissions were extremely helpful. As the application for judicial review has failed, Mr Fuller should pay a contribution towards the costs of Mr Mortimer-Wang’s assistance which will otherwise be borne by public funds.

[30]              Mr Fuller is to pay a contribution of $2,000 towards Mr Mortimer-Wang’s costs.6 The order is in favour of the Ministry of Justice.

Venning J

6      Preparation of submissions would generally be allowed – 1.5 days x 2390 = $3,685.