HANNAH ROSE FITZGERALD and DVID CHARLES NEWELL s AND TERENCE JOHN SMITH

[2024] NZHC 2673

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2024-454-17

[2024] NZHC 2673

UNDER

the Property Law Act 2007

IN THE MATTER OF

an application under ss 339 and 343

BETWEEN

HANNAH ROSE FITZGERALD and DVID CHARLES NEWELL

Applicants

AND

TERENCE JOHN SMITH

Respondent

On the papers:
Counsel:	G L Duncan for Applicant Respondent in person
Judgment:	16 September 2024

JUDGMENT OF GRAU J

[Access to Court documents]

[1]    Mr Terence Smith is currently facing a charge of arson after a fire at a property in Sanson in October 2023. The property was owned in half shares by Mr Smith and the estate of his deceased partner. Mr Smith had sought a share of the estate in a proceeding under the Family Protection Act (FPA). The house caught fire the same morning that a judicial settlement conference was scheduled to occur in the FPA claim. Earlier this year, McHerron J granted a sale order under the Property Law Act 2007 for the fire-damaged property following a proceeding brought against Mr Smith by executors of his deceased partner’s estate (the Sale Order File).1

1      Fitzgerald v Smith [2024] NZHC 951.

FITZGERALD v SMITH (Access to Court documents) [2024] NZHC 2673 [16 September 2024]

[2]The Police seek access to the entirety of the Sale Order File on the basis that:

The civil application, hearing and judgment form a significant pillar of the defendants [sic] motive and thereby his intent in the current criminal proceeding.

Access to court documents

[3]    Access to court documents is regulated by the Senior Courts (Access to Court Documents) Rules 2017 (the Rules). Every person has the right to access the formal court record in relation to a criminal proceeding.2 The permanent court record includes judgments, orders, or minutes of the court, including any record of the reasons given by a Judge.3 The general public (including the Police in this application) do not have the right to access other documents in the Sale Order File, which include submissions and affidavits.

[4]    Determination of a request for access to documents that are not accessible as of right is governed by r 11, which states:

11       Any person may ask to access documents

(1)This rule applies if a person is not entitled to access a document relating to a proceeding or an appeal under rule 8 or 9.

(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).

…

(7)A Judge may—

(a)grant a request for access under this rule in whole or in part—

2      Senior Courts (Access to Court Documents) Rules 2017 (the Rules), r 8(1).

3      The Rules, r 3 definition of “formal court record”.

(i)without conditions; or

(ii)subject to any conditions that the Judge thinks appropriate; or

(b)refuse the request; or

(c)refer the request to a Registrar for determination by that Registrar.

(8)Without limiting the powers in subclause (7), 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).

[5]    Rule 12 sets out the matters that must be considered by the court in determining a request for access under r 11:

12       Matters to be considered

In determining a request for access under rule 11, the Judge must consider the nature of, and the reasons given for, the request and take into account each of the following matters that is relevant to the request or any objection to the request:

(a)the orderly and fair administration of justice:

(b)the right of a defendant in a criminal proceeding to a fair trial:

(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:

(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:

(g)whether a document to which the request relates is subject to any restriction under rule 7:

(h)any other matter that the Judge thinks appropriate.

[6]    Whether to grant access to court documents is an evaluative decision. No particular factor, including that of open justice, has paramountcy; a balancing exercise of all the relevant factors is required.4 Further guidance on this is provided in r 13:

4      Crimson Consulting Ltd v Berry [2018] NZCA 460, [2019] NZAR 30 at [16] and [30].

13       Approach to balancing matters considered

In applying rule 12, the 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.

[7]    Pursuant to r 5, the Rules also do not affect a court’s inherent power to control its own proceedings.

This application

[8]    Mr Smith does not consent to the Sale Order File being provided to the Police. He has expressed his view that the civil matter has no relevance to any criminal matter, and the Police are merely “fishing”.

[9]    I decline to grant access in this case. First, to the extent that the Police are seeking to use McHerron J’s judgment or other findings of fact as “evidence” to help prove the elements of the charge against Mr Smith, such use of the Sale Order File would be inadmissible as a consequence of s 50(1) of the Evidence Act 2006. This section provides that civil judgments and findings of fact in civil judgments are inadmissible in civil and criminal proceedings to prove the existence of a fact that was in issue in the proceeding in which the fact was found or the judgment was given.

[10]   Second, the fire that damaged the relevant property occurred before sale order proceedings were commenced and then determined by McHerron J. Accordingly, it is not apparent to me how these proceedings would be relevant to proving the arson charge. If they are relevant, then the comprehensive judgment of McHerron J—which

sets out the relevant evidence and submissions made before him—would provide the Police with enough information as to the nature of the claim against Mr Smith, the evidence advanced by both parties, and the arguments advanced before the Judge. Given the civil proceedings are now at a post-hearing stage, the confidentiality and privacy interests of the parties to those proceedings are to be given a greater weight.

[11]   Fair trial rights are absolute, and the Police have not explained the purpose for which the documents sought are intended to be used. In any case the Police also have other available avenues, for example by making a request to the other party in the civil proceeding or lawfully exercising investigatory search powers. Therefore, the Police are entitled to access the Sale Order File documents to the extent that any member of the general public can, but I am not prepared to extend access beyond that which I would have granted had access been sought by a member of the public.

[12]   Thus, for the avoidance of doubt, the Police may have access to the following documents only contained in the file for Fitzgerald v Smith (CIV-2024-454-17):

(a)the minute of Grice J, dated 12 March 2024;

(b)the judgment of McHerron J, dated 26 April 2024, being Fitzgerald v Smith [2024] NZHC 951; and

(c)the sealed order for sale, dated 29 April 2024.

Grau J

Solicitors:
BV+A, Palmerston North for Applicants