Gatfield v Hinton
[2025] NZHC 2269
•12 August 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-2969
[2025] NZHC 2269
BETWEEN GILLIAN JANE GATFIELD
First Plaintiff
AND
EMMA JACQUELINE PEARSON
Second Plaintiff
AND
ANNE ELIZABETH HINTON
Defendant
Hearing: On the papers Appearances:
M A Jeffries for First and Second Plaintiff A S Butler KC for Defendant
A H Waalkens KC for Interested Parties
Judgment:
12 August 2025
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 12 August 2025 at 11.30 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
GATFIELD v HINTON [2025] NZHC 2269 [12 August 2025]
The application
[1] This is an application for access to Court documents in this proceeding made by a journalist from Radio New Zealand (RNZ). The documents the applicant seeks are described in the application as follows:
(a)judge minutes relating to case management, including any that are relevant to the judicial status of the defendant;
(b)the application for alternative dispute resolution, the opposition to ADR, submissions by the parties on that application, and the transcript of the hearing of the ADR application;
(c)the application for leave to appeal to the Court of Appeal, the opposition to that application and all submissions on that application.
[2]The stated reason for the application is as follows:
The case involves a trustee who is also a senior judge. All case management decisions and litigation involving senior judges has strong public interest. There are a number of issues such as open justice where a court makes decisions involving one of its own senior judges, fair administration of justice, and freedom to seek and impart information ... The case is also important because it involves issues of human rights including rights to a public trial.
Documents are asked for from both applications (for ADR and for leave to appeal to the Court of Appeal) because they both involve all those issues.
The information is not restricted under Rule 7 and I am not requesting private or confidential information which is in claims or affidavits.
[3] The application was originally referred to Johnstone J as the Auckland Duty Judge. However, by minute dated 30 July 2025, he decided to recuse himself from determining the application, given his association with the defendant as a colleague in the Auckland High Court. It has since been referred to me as the civil list judge in Christchurch.
[4] The documents all relate to steps taken before, during and after the hearing of an application under s 145 of the Trusts Act 2019 for orders directing the proceeding to go to mediation and, if required, to arbitration (I will refer to these two processes collectively as alternative dispute resolution or ADR).
The relevant background
[5] On 26 June 2024 Associate Judge Lester issued a decision on the defendant’s application to have the proceeding referred to alternative dispute resolution under s 145 of the Trusts Act (the ADR judgment).1 That section provides:
145 Power of court to order ADR process for internal matter
(1)The court may, at the request of a trustee or a beneficiary or on its own motion,—
(a)enforce any provision in the terms of a trust that requires a matter to be subject to an ADR process; or
(b)otherwise submit any matter to an ADR process (except if the terms of the trust indicate a contrary intention).
(2)In exercising the power, the court may make any of the following orders:
(a)an order requiring each party to the matter, or specified parties, to participate in the ADR process in person or by a representative:
(b)an order that the costs of the ADR process, or a specified portion of those costs, be paid out of the trust property:
(c)an order appointing a particular person to act as a mediator, an arbitrator, or any other facilitator of the ADR process.
(3)This section applies in relation to internal matters only.
[6]In the ADR judgment Associate Judge Lester determined the following:
(a)the proceeding was a “matter” that could be referred to ADR under s 145;
1 Gatfield v Hinton [2024] NZHC 1712.
(b)the application for referral to ADR was appropriately made by interlocutory application; and
(c)an Associate Judge had jurisdiction to determine the application.
[7] After a full and detailed discussion of the competing submissions on whether it was appropriate, in this case, to refer the matter to ADR, the Judge determined that it was appropriate to make an order under s 145. He directed the parties attend mediation to be completed by 31 July 2024, if it was not entirely resolved at mediation, then the parties were to participate in arbitration before Mr Tom Weston KC.
[8] In a minute dated 10 July 2024 some aspects of the orders made in the ADR judgment were varied to appoint the Honourable Mr Harrison KC as the mediator and directing that the mediation be completed on or before 1 August 2024.
[9]On 22 July 2024 an interlocutory application for:
(a)leave to appeal the ADR judgment and the further orders contained in the 10 July 2024 minute; and
(b) for stay of the orders, was filed.
[10] On 29 July 2024 Associate Judge Lester declined the application for a stay of mediation.2 The balance of the application was adjourned until mediation had been completed.
[11] The parties subsequently attended mediation but did not succeed in resolving the dispute. Following the unsuccessful mediation, leave to appeal the ADR judgment was granted on an unopposed basis and the requirement to go to arbitration stayed, pending resolution of the appeal.
2 Gatfield v Hinton [2024] NZHC 2074.
Submissions on the application
[12] As is required under r 11 of the Senior Courts (Access to Court Documents) Rules 2017 (the Rules), the request has been circulated to the parties. Extensive submissions have been received from both Mr Jeffries for the plaintiffs and from Mr Lange for the defendant and interested parties.
Submissions for the defendant and interested parties
[13] Mr Lange, for both the defendant and the interested parties opposes the application. He submits that following the unsuccessful mediation on 1 August 2024, the order referring all matters in issue to arbitration took effect. While the arbitration has been stayed pending the plaintiffs’ appeal, it is only if the existing order of the High Court is overturned that all matters in issue in this proceeding would not be subject to the strict confidentiality provisions of the Arbitration Act 1996 (ss 14, 14A, 14B and 14C).
[14] Similarly, he points to the fact this is essentially a family dispute (as noted by Associate Judge Lester in his ADR judgment) and that this generates a general confidentiality interest. It would undermine the effect and intent of the ADR judgment to allow media access to the Court file. To the extent that there might be any public interest, that interest is already satisfied by the publicly available judgments that have issued.
[15] Mr Lange notes that the ADR judgment recorded that the plaintiffs “did not seek publicity” or “to use publicity as a tactic”, thus reinforcing the Court’s view that the general desirability of confidentiality in respect of family members favours referral to ADR.
[16] Finally, should the Court consider access is nonetheless appropriate, Mr Lange submits that a condition should be imposed that any content of the documents that contains private or confidential information about the parties or the dispute, shall not be disclosed in any manner by the applicant.
Submissions for the plaintiffs
[17] Mr Jeffries submits that the overriding principle, and default position in civil cases, is that the documents should be accessible by the media. This recognises that justice is public, the judicial system is accountable for its actions, and decisions and maintenance of public confidence in the judiciary is essential. In his submission the involvement of a judge of this Court heightens the imperative of open justice and scrutiny, noting it is essential the courts are not seen to be looking after one of their own.3
[18] In Mr Jeffries’ submission, concerns regarding confidentiality or privacy are misplaced as the documents requested do not contain information which is confidential or sensitive.
[19] He rejects the submissions on behalf of the defendant that the claims have been referred to arbitration and are therefore subject to strict confidentiality under the Arbitration Act 1996, saying that Act is not relevant to, and does not have any effect on, access to the materials requested in relation to the ADR judgment. Furthermore, the arbitration orders were stayed on 10 September 2024 and so there is no arbitration in effect.
[20] In response to the submission that there is a general obligation of confidentiality as the claims are family disputes, Mr Jeffries says the documents do not reproduce details in the claims beyond those considered by the Court and the ADR judgment. The request is for documents relating to the ADR judgment and none of them contain sensitive information about private lives or commercially sensitive matters sufficient to justify opposition. Furthermore, the ADR judgment has been publicly reported. For all these reasons, the suggestion that this is a family dispute is not a reason for limiting access to the documents.
[21] Mr Jeffries also rejects the suggestion that the effect and intent of the ADR judgment would be defeated if the request was allowed. Again, he points to the fact that the ADR judgment has been reported and the documents sought simply shed light
3 Farish v R [2024] NZSC 65, [2024] 1 NZLR 223 at [72] and [73].
on the judicial process and decision making that led to that decision. Mr Jeffries says the request is non-controversial.
[22] In response to the suggestion that the documents include “highly contentious allegations made in the proceeding”, again he submits this is insufficient to displace open justice principles.
[23] To the extent counsel for the defendant suggests that the plaintiffs are acting in contradiction to their assurances that they “did not seek publicity”, Mr Jeffries says that the plaintiffs are simply seeking their right to a public trial and no negative inference should be drawn from that.
Discussion
[24] The Rules apply to both criminal and civil proceedings and to all senior courts. Under the rules every person has a right to access the formal court record relating to a civil proceeding.4 However, all other documents (which includes those which are the subject of this request) are subject to r 11 which sets out the process to be followed when requesting access to documents not covered by the general rights of access.
[25] In determining whether to grant access, the court must consider the nature of, and the reasons given for, the request and then take into account the matters set out in r 12. The matters which are relevant in the present case are:
(a)the orderly and fair administration of justice;
…
(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;
4 Senior Courts (Access to Court Documents) Rules 2017, r 8.
(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;
…
(h) any other matter that the Judge thinks appropriate.
[26] In addition, in applying r 12, r 13 provides that a judge must have regard to the following:
(a)before the substantive hearing, the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited:
(b)during the substantive hearing, open justice has—
(i)greater weight than at other stages of the proceeding; and
(ii)greater weight in relation to documents relied on in the hearing than other documents:
(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.
[27] In the present case, there are clearly competing interests at play. The principle of open justice and the freedom to seek, receive and impart information are relevant, particularly where a participant is a sitting Judge making it more important that there is oversight of the Court’s processes. However, equally, there are confidentiality and privacy interests engaged which have no less force simply because one of the parties is a sitting Judge. However, those are general observations only and, in my view, the
decision on the application must focus on the particular documents sought, and the key principles which are potentially engaged by their release.
[28] The starting point is that the documents largely relate to the ADR judgment, a decision which is already in the public arena. While as r 13 confirms, confidentiality and privacy interests have more weight in the early stages of the proceedings (which this is at), I can see little reason to withhold documents that are largely perfunctory and administrative in nature (as many of the minutes are), or which are simply more detailed versions of material that is already in the public arena, such as the submissions of the parties which are traversed in the ADR judgment.
[29] I also do not consider the pending reference to arbitration affects the approach to be taken in this application, which focuses only on the steps taken by the Court in determining the s 145 application. Those are not covered by the Arbitration Act. Furthermore, in terms of the substantive dispute which may be referred to arbitration, RNZ expressly says it is not seeking information about the allegations in the underlying pleadings or in the affidavits. The arbitration will deal with those substantive claims if the ADR judgment is not reversed on appeal.
[30] I am therefore satisfied that release of the documents can be done to ensure it will not undermine the confidentiality of any future arbitration process.
Decision on the application
[31] Having looked at the various documents requested, I make the following decisions on the requests.
Court minutes
[32] I consider the minutes requested do not disclose private or confidential information about the parties or the dispute that is not already in the public arena as a consequence of the ADR judgment and I grant leave to access those documents. Indeed, I consider public confidence in the judiciary is enhanced by seeing what steps are taken to ensure such cases are case managed appropriately.
Pleadings and submissions on the application to refer to ADR
[33] In terms of the application for referral to ADR, the notice of opposition to that application and the submissions by the parties, these are, as I have said, documents that do no more than provide the background to the ADR judgment and the matters considered in it. In general, subject to what I say in [37] and [38] below, I am satisfied it is appropriate to grant access to these documents.
Transcript of hearing
[34] In respect of the request for the transcript of the hearing, it is clear that RNZ has been advised that a transcript was prepared as that is not a document which would normally be on file. The transcript is of a chambers hearing which, while the media can attend, the public would not normally have access to. This is a factor which points against its provision. Furthermore, I do not consider it assists with the stated purpose of understanding how the senior courts manage litigation that involves one of their own judges. In the course of submissions, a judge may play devil’s advocate, testing the positions of the parties by putting a contrary view. This is of little assistance to understanding of the reasons for the ADR judgment which are, of course, set out in full in the Judge’s decision. There is also a risk that comments can be taken out of context and presented as a Judge’s view, when that is not borne out in the final decision, which sets out the Judge’s concluded view. For these reasons, and taking into account the stated purpose of the request for further information, I do not consider provision of the transcript would assist with that and I decline to grant access to it.
Documents relating to the appeal
[35] The final request is for the application for leave to appeal the ADR judgment to the Court of Appeal, the opposition to that application, and all submissions on that application. I grant access to both the application and the opposition given those largely reflect the competing positions of the parties as presented to the High Court on whether the dispute should be referred to ADR.
[36] However, there do not appear to be any submissions, as such, on the application for leave to appeal to the Court of Appeal as, following the unsuccessful mediation,
the defendant and interested parties withdrew their opposition to the balance of the application, abiding the decision of the Court. There are therefore, no documents I could find which fit this description.
Confidentiality and privacy interests
[37] There are some brief references in the documents requested to private matters and personal views and to allegations which have not yet been determined. The permission I grant to access the identified documents is subject to a condition that certain parts are not published or disclosed. This reflects the principle in r 13 that before the substantive hearing (by which I mean a substantive determination of the allegations), the protection of confidentiality and privacy interests may require that access to documents be limited. It also reflects the fact that such is expressly not sought by the applicant.
[38] Accordingly, access to the documents identified is granted on condition that the following is not published or disclosed:
(a)in the submissions of counsel for the defendant in support of the application to refer dispute to ADR dated 29 May 2024;
(i)paragraph 19; and
(ii)the last sentence of paragraph 43 beginning “There are many and sundry allegations of conduct;
(b)in the plaintiffs’ submissions in opposition to the application under s 145:
(i)the first sentence of paragraph 92; and
(ii)paragraph 93.
Result
[39] Access is granted to all documents sought where they exist, save for the transcript of the hearing, and subject to the express restrictions as to further publication and disclosure listed in [38] above.
Solicitors:
M A Jeffries Solicitors, Auckland Simpson Grierson, Auckland
Copy to:
A S Butler KC, Barrister, Auckland H Waalkens KC, Barrister, Auckland
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