Gibson v Kupe Trustees Company Limited

[2020] NZHC 2586

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-002732

[2020] NZHC 2586

UNDER

Clause 5(1)(A) of Schedule 2 of the Arbitration Act 1996

IN THE MATTER

of an appeal of a final award dated 20 November 2019

BETWEEN

IAN GIBSON, DIANA PETRIE, PAUL MERKEL, STEPHEN ROGERS and CHRRISTOPHER GEORGE BOYCE

First Appellants

AND

DIANA RHYS PETRIE and W R TRUSTEES LIMITED

Second Appellants

AND

KUPE TRUSTEES COMPANY LIMITED and KUPE TRUSTEE COMPANY NO.2 LIMITED

Respondents

Hearing:

On the papers

Counsel:

T J Rainey and G R Grant for the First and Second Appellants G P Blanchard QC and A Lenard for the Respondents

R Keane and T Hu for Whai Rawa Railway Lands LP (requesting access to Court documents)

Judgment:

1 October 2020

JUDGMENT OF CAMPBELL J

[Request for Access to Court Documents]

This judgment was delivered by me on 01 October 2020 at 4.30pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

GIBSON v KUPE TRUSTEE COMPANY LIMITED [2020] NZHC 2586 [1 October 2020]

Introduction

[1]        Whai Rawa Railway Lands LP (the applicant) has requested access to documents on the court file in this proceeding. The request is made under the Senior Courts (Access to Court Documents) Rules 2017.

[2]        The request has been made in a letter from the applicant’s solicitor dated 9 September 2020. Paragraph 4 of that letter sets out the request:

The applicant seeks access to any document which contains information about:

(a)The nature and extent of the weathertightness defects in the Scene 1 apartment building;

(b)The extent of remediation work required; and

(c)When that remediation work is proposed to be carried out.

[3]        The letter relies, in particular, on rr 8 and 11. The letter explains the applicant’s reasons for requesting access to the documents, as required by r 11(2)(c).

[4]        The Registrar has copied the request to the parties. No party opposes the request.

[5]        Notwithstanding the lack of opposition, I refuse the request. In summary, this is because the Rules require a person requesting access to ask for particular documents. Instead, the applicant has requested access to any document that contains specified information. Such a request, if granted, would thrust upon the Registrar or a Judge the burden of reviewing every document on the Court file to determine whether the document contains that information. The Rules do not permit such a request.

[6]        The starting point, in relation to a civil proceeding, is the general right of access of the public under r 8(1). This grants every person the right to access the “formal court record” relating to a civil proceeding. The formal court record is defined in r 4. It includes “a register or an index” (as well as, among other things, judgments, orders,

and minutes). The “register or … index” is a reference to the “Register of documents filed” that the Court keeps for each civil proceeding1.

[7]        By r 10(1), a person exercises the general right of access under r 8 by asking the Registrar “for access to 1 or more documents”. It is clear from this rule that a person requesting access has to identify the documents requested. A person cannot, as the applicant has done, ask for access to whichever documents on the court file contain specified information, thereby placing a burden on the Registrar to identify which documents fall within the request.

[8]        Practically, if someone exercising a general right of access under r 8 does not already know the details of the document that they seek, they can obtain those details by first accessing the “Register of documents filed” (which, as explained, is part of the formal court record). They can then identify any other documents to which they have a general right of access under r 8, and request access to them under r 10.

[9]        If someone wishes to access a document to which they do not have a general right of access under r 8, they may request access under r 11. The request must be in writing and must, among other things, set out “sufficient particulars of the document to enable the Registrar to identify it” (r 11(2)(b)). The applicant’s request does not do this. It requires the Registrar (or ultimately a Judge) to read through the entirety of every document on the file to see whether it contains the requested information. That is not contemplated by r 11(2)(b).

[10]      Although I refuse the request, the applicant remains free to exercise its general rights of access to the formal court record (which does not require a written request) and to make a new (but compliant) request under r 11.

Campbell J

1      Fuji Xerox New Zealand Limited v Whittaker [2018] NZHC 1043 at [11].

Solicitors/Counsel:

Greg Blanchard QC, Auckland Ana Lenard, Barrister, Auckland

Timothy Rainey, Barrister, Auckland Rainey Law, Auckland