Hanover
[2015] NZHC 2347
•28 September 2015
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS JUDGMENT MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. THE NAMES OF THE PARTIES HAVE BEEN PSEUDONYMISED.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2007-404-7415 [2015] NZHC 2347
UNDER The Care of Children Act 2004 IN THE MATTER OF
Applications in relation to the children
Gillian and Tom Hanover
Appearances: S Heney for Mr and Mrs Saunders
G Webster for Ms Evans
G A Cole for Ms Alder
P E Main for Mr Wilton
L J Kearns for the children
G M Cameron, counsel to assist
A J Pollett for CEO of Child Youth and Family Service
Mr Hanover in personJudgment:
28 September 2015
JUDGMENT OF ELLIS J (Application for access to the Court file)
I direct that the delivery time of this judgment is
12 pm on the 28th day of September 2015
Counsel/Solicitors:
G A Cole, Barrister, Auckland
P E Main, Barrister, Auckland
G Webster, The Law Lounge, TakapunaA J Pollett, Meredith Connell, Auckland
L J Kearns, Barrister, Auckland
G M Cameron, Barrister, AucklandS Heney, Fletcher Vautier Moore, Nelson
Copy to Mr Hanover
RE HANOVER [2015] NZHC 2347 [28 September 2015]
[1] On 24 April 2014 Mr Howard on behalf of the Ministry of Social Development (MSD) made an application for access to the formal court record in relation to the proceedings that culminated in my judgments of 6 and 17 August
2015.1
[2] The reason for the request was that it was believed that the record might assist the “Work and Income” (WINZ) side of the Ministry in its investigation into possible benefit fraud involving one of the parties to the proceeding, Ms Alder (that name is pseudonymous and will be adopted for the purposes of this judgment as well). It was the “Child Youth and Family” side of the Ministry which was involved in the proceedings as the Court’s agent. Because the Ministry did not regard itself technically as a party and did not consider that it could properly access the file for WINZ purposes. I accept that it was proper for the Ministry to make those distinctions.
[3] On 5 May 2015 Ms Cole filed a memorandum on behalf of Ms Alder opposing the application and presenting submissions in support of her opposition. On 6 May I issued a minute in which I stated:
[1] I have received Ms Cole's helpful and comprehensive memorandum (dated 5 May 2015) in relation to the application by MSD to access the Court file. In fairness, I consider that MSD should be afforded the opportunity to respond.
[2] What that response contains is, of course, a matter for the Ministry but I am particularly interested in the Ministry's position on the timing of both a decision on the application and/or any access which may be granted. My own preference is to defer making a decision until after the release of my judgment which will, undoubtedly, canvas some (if not all) of the matters that have given rise to MSD's application … . The reasons for this preference is, first, that the judgment may well contain factual findings that could be relevant to any inquiry and, secondly, that it is only when that judgment is released that the submission made by Ms Cole at paragraph 18 of her memorandum can properly be assessed.
[3] As well, and in light of what Ms Cole submits at paragraphs 19–22 of her memorandum, it would be helpful for the Court to have a brief affidavit from an appropriate MSD employee explaining:
1 Re Hanover [2015] NZHC 1855; Re Hanover (Costs) [2015] NZHC 1945.
(a) any Chinese walls that are or have been in operation in relation to this proceeding (or in relation to COCA proceedings more generally); and (b)
how it was that the “WINZ” arm of the Ministry became aware of
the matters that it now wishes to investigate.
[4]
MSD
filed the further material I requested on 20 May 2015.
In a
memorandum it clarified that access was principally sought to the evidence filed in the proceeding, and the notes of evidence. It accepted that because the proceedings were brought under the Care of Children Act 2004 (the COCA) permission pursuant to r 3.12(2)(b) of the High Court Rules was required.
[5] The accompanying affidavit addressed the matters referred to at [3] of my minute. To the extent there has, thus far, been a limited sharing of information between different parts of the Ministry (the Child, Youth and Family service line and the Work and Income service line) I am satisfied that it has been for a lawful purpose and there has been no breach of the Privacy Act 1993 (or of Principle 10 in particular).
[6] Having received that further information my preference remained as it had previously been, namely to defer making a decision on the request pending the release of my judgment (which turned out to be two judgments). It appears that I may not have formally advised MSD of this view, for which I apologise.
[7] But as noted above, my two judgments have now been issued (on 6 and
17 August 2015). Since then, other matters arising in relation to the file have taken priority over dealing with the access request. But it is necessary to do that now.
The relevant rules
[8] Given the time that has passed since the release of my judgments those of the High Court Rules dealing with access to Court documents at the hearing stage can, for present purposes, be put to one side. Accordingly the requests here must invoke r 3.13, which relevantly provides:
3.13Applications for permission to access documents, court file, or formal court record other than at hearing stage
(1) This rule applies whenever the permission of the court is necessary under these rules and is sought to access a document, court file, or any part of the formal court record, except where access may be sought under rule 3.9.
…
(3) The application is heard and determined by a Judge or, if a Judge directs the Registrar to do so, by the Registrar.
(4) On receipt of an application made in accordance with subclause (2), the Judge or Registrar may direct that the person file an interlocutory application or originating application.
(5) The applicant must give notice of the application to any person who is, in the opinion of the Judge or Registrar, adversely affected by the application.
…
(7) The Judge or Registrar may deal with an application on the papers, at an oral hearing, or in any other manner the Judge or Registrar considers just.
[9] Also relevant is r 3.16 which provides:
3.16 Matters to be taken into account
In determining an application under rule 3.13, or a request for permission under rule 3.9, or the determination of an objection under that rule, the Judge or Registrar must consider the nature of, and the reasons for, the application or request and take into account each of the following matters that is relevant to the application, request, or objection:
(a) the orderly and fair administration of justice:
(b) the protection of confidentiality, privacy interests (including those of children and other vulnerable members of the community), and any privilege held by, or available to, any person:
(c) the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, court hearings and decisions:
(d) the freedom to seek, receive, and impart information:
(e) whether a document to which the application or request relates is subject to any restriction under rule 3.12:
(f) any other matter that the Judge or Registrar thinks just.
[10] And in the present case, the file is subject to a restriction under r 3.12, which provides:
3.12 Restrictions on access
(1) Any right or permission conferred or given by these rules to access a document, court file, or any part of the formal court record is subject to—
(a) any enactment, court order, or direction limiting or prohibiting access or publication; and
(b) the payment of any prescribed fees for access.
(2) A person may not access a document, court file, or any judgment or order, that relates to a proceeding brought under an enactment specified in subclause (3) unless—
(a) the person is a party to that proceeding; or
(b) the court permits the person to do so. (3) The enactments are as follows:
…
(d) Care of Children Act 2004:
…
The general approach to requests for access
[11] The previous regime required an applicant to show a particular interest in order for access to be granted. That is no longer the case, as confirmed in BNZ Investments Ltd v Commissioner of Inland Revenue.2 That said, the Court is likely to be less sympathetic to a request made by a person who cannot show a “recognisable and legitimate public or private interest” for seeking access: In Commerce Commission v Air New Zealand, Asher J referred to the preliminary requirement under r 3.16 that the Judge or Registrar is to: 3
… consider the nature of, and reasons for, the application or request …
[12] His Honour said that the nature of and reasons for the request:4
2 BNZ Investments Ltd v Commissioner of Inland Revenue (2009) 20 PRNZ 311 (HC).
3 Commerce Commission v Air New Zealand [2012] NZHC 271 at [30].
4 At [30].
… form a background for the assessment of the relevant matters that are then listed. They will tend to drive the analysis of the six factors. For instance if the purpose is publication to the public by the media, that may lead to a different focus than if the application was by a private person for personal or commercial purposes. Inevitably a Court will be less sympathetic to an application which does not have a recognisable and legitimate public or private purpose.
[13] The Judge also noted that the six matters to be taken into account under r 3.16 are “unambiguously non-hierarchical”.5 This led him (and judges in other cases) to reject any suggestion that open justice is a paramount consideration in the new access regime.6
Discussion
[14] The starting point is that the request is made in furtherance of an identifiable public interest, namely the detection of benefit fraud. By and of itself, that weighs in favour of the grant of at least limited access.
[15] I now address each of the specific r 3.16 matters in turn.
The orderly and fair administration of justice
[16] Although MSD did rely upon this ground as favouring disclosure, I doubt it has meaningful application here. I have already accepted that MSD has a legitimate and important public interest in the information sought. It is not necessary (and it strains the natural meaning of the relevant words) to try and link that interest to the “administration of justice”.
Confidentiality and privacy interests and any matters of privilege
[17] There seem to me that there are two potentially relevant matters arising in relation to r 3.16(3)(b).
5 Commerce Commission v Air New Zealand, above n 3, at [28].
6 At [29]; citing John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101;
Seven Network Ltd v News Ltd (No 9) [2005] FCA 1394 at [23].
[18] First, there is the point that family proceedings involve matters that are inherently private, rather than public, in nature.7 As Wylie J has recently said (in a slightly different context):8
Relationship property claims differ in many respects from other civil proceedings. They arise consequent on the breakdown of a personal relationship, often of some duration. They can, and frequently do, involve significant intrusions into personal privacy, sometimes in a way not entirely related to the substantive legal issues which fall for consideration. Such claims are of interest primarily to the parties themselves. They concern their own personal and often intimate affairs, and those of their family. They do not generally engage the broader public interest.
The Courts have long recognised the need to protect litigants in such cases. While the Family Court is now more open than it once was, it still provides protection to children, and to the vulnerable. Further, it remains the practice of the Family Court to anonymise the names of the parties to relationship property litigation. Similarly, the High Court Rules relating to searches of court files restrict the right of members of the public to access the formal court record in property relationship claims, and this court also commonly anonymises such proceedings.
In my judgment it is a relevant consideration that the proceedings here in issue arise out of a marriage breakdown. They are proceedings that by their nature involve matters of a private nature, and that only lightly touch on the broader public interest.
[19] In the absence of some important countervailing interest in the contents of the file, I consider that the inherent privacy of proceedings such as the present would weigh heavily against disclosure.
[20] The second potentially relevant r 3.16(3)(b) matter relates to a question of privilege. Section 63 of the Evidence Act 2006 provides that if a person is ordered by the Court to disclose information or documents for the purpose of civil proceedings that person is not permitted to decline to do so on the grounds that it would incriminate him or her. As a consequence, s 63 also affords such persons a
limited privilege by providing that:9
No evidence of any information that has directly or indirectly been obtained as a result of the person's compliance with the order may be used against the person in any criminal proceeding, except in a criminal proceeding that concerns the falsity of the information.
7 The privacy interests of the parties to such proceedings are, at least in part, separately recognised in many of the statutory restrictions listed in r 3.12 (and referred to in r 13.6(3)(e)).
8 White v Hewett [2015] NZHC 1749 at [28]-[30].
9 Evidence Act 2006, s 63(3).
[21] Ms Alder’s evidence was not given pursuant to an order under s 63. Rather she voluntarily filed affidavits in support of her application and was cross-examined on them. And although there was an element of compulsion in the eventual production of her lease (I would have made a formal order to produce had it been necessary to do so) it was ultimately her choice to provide what I have subsequently found was a forged document; it could not be said that she was “compelled” to incriminate herself in this way.
[22] But I regard Mr Hanover’s evidence (which would also likely be relevant to the WINZ investigation) as being in a different category. I did require him to give evidence and there were, indeed, discussions about the ambit of s 63 and self- incrimination. Thus it appears that at least some of the information contained on the Court file which may well be of interest to WINZ could not be used against Mr Hanover in criminal proceedings (other than proceedings of the limited type referred to in s 63(3)). Whether information provided by Mr Hanover under compulsion could be used against Ms Alder in a prosecution for benefit fraud is rather a nice question, but one which it is beyond the scope of this judgment to address.
[23] Even if there were some difficulty in that regard, however, the WINZ investigation may have other related purposes that would stop short of prosecution. In particular, it seems to me that it has a legitimate interest in ascertaining whether Ms Alder has been overpaid and, potentially, in taking remedial action.
[24] Accordingly although the existence of Mr Hanover’s s 63(3) privilege gives rise to a need for caution (caution by WINZ as to how certain of the information is used) I do not think it is determinative against access here.
The principle of open justice
[25] Although the Ministry submitted that the principle of open justice is also engaged by its application, I consider that it has a minimal role to play here. Rule 3.16(3)(c) makes it clear that the focus of that principle is the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions. MSD’s request for access has nothing to do with that. And as Wylie J said in White
open justice necessarily has a very limited role in private proceedings of the present kind.
The freedom to seek, receive, and impart information
[26] Again, the Ministry submitted that its request for access engaged its freedom to seek, receive and impart information. To the extent that the recognition of that right in r 3.16(3)(d) is intended to reflect the human right that is affirmed in s 14 of the New Zealand Bill of Rights Act 1990,10 however, I doubt that it can directly be applied to a Government Department. In any event, I do not think that r 3.16(3)(d) is of any particular relevance here.
Restrictions under r 3.12
[27] Rule 3.12 begins by providing (in sub-cl (1)) that any right given by the rules to access a court file is subject to any enactment, court order, or direction limiting or prohibiting access or publication. Thus the operation of the rules is subject to s 139 of the COCA, which incorporates ss 11B to 11D of the Family Courts Act 1980. And s 11B relevantly provides:
(3) A person may not, without the leave of the Court, publish a report of proceedings in a Family Court that includes identifying information11 where—
(a) a person under the age of 18 years -
(i) is the subject of the proceedings; or
(ii) is a party to the proceedings; or
10 Section 14 confirms that “Everyone shall have the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form. The similarity in the wording used in r 3.16(3)(d) suggests that it is concerned with the same right.
11 “Identifying information” is defined in s 11C to include:
… information relating to proceedings that includes any name or particulars likely to lead to the identification of any of the following persons:
(a) a party to the proceedings:
(b) an applicant in the proceedings:
(c) a person who is the subject of the proceedings:
(d) a person who is related to, or associated with, a person referred to in paragraphs (a) to (c) or who is, or may be, in any other way concerned in the matter to which the proceedings relate (for example, a support person for a party).
(iii) is an applicant in the proceedings; or
(iv) is referred to in the proceedings; or
…
(4) However, subsection (3) does not apply to—
(a) a report of proceedings in a publication that—
(i) is genuinely of a professional or technical nature (including a publication that is intended for circulation among members of the legal or medical professions, officers of the Public Service, psychologists, counsellors, mediators, or social workers); and
(ii) does not include the name of—
(A) any person under the age of 18 years who is the subject of the proceedings, or who is referred to in the proceedings:
(B) …
(C) any parties or applicants in the proceedings where subsubparagraph (A) or (B) applies:
…
(5) The Court may grant leave under subsection (3) with or without conditions.
[28] In the present case, MSD’s request for access does not directly engage s 139 (or ss 11B – 11D) because MSD does not propose to publish a report of the proceedings in the relevant sense. Access is sought not for the purposes of external publication but an internal investigation conducted for an important public purpose.
[29] There is, as well, sub -cl (2) of the rule, which provides that a person may not access a document, court file, or any judgment or order, that relates to a proceeding brought under the COCA without permission. As I have noted above, it is that proscription that gave rise to the present request. In my view r 3.12(2) reflects a wider recognition of the privacy interests articulated by Wylie J in the passages from White, which I have set out above. Accordingly I consider that the conclusion I reached there (namely that those interests should prevail in the absence of a compelling reason for access) is merely underscored by r 3.12(2).
Any other relevant factors
[30] I have already noted the particular purpose for which the request for access has been made, together with my view that that purpose is legitimate and important. A related and relevant point is that the requester is a government department which, necessarily, has tight controls in place over the use and dissemination of the wealth of personal information that it receives on a daily basis. Thus the risk of private information being used inappropriately or distributed more widely appears to me to be less than had access been sought by an individual. That gives the Court some additional surety about any release it might order.
The weighing exercise
[31] The privacy interests here are strong, although the specific information that is likely to be of interest to the Ministry is not of the most sensitive or intimate kind. Nor would access necessarily involve disclosure about, or that would affect, the two children Gillian and Tom, whose interests are paramount in any COCA-related decisions.
[32] Nor is the request for access a prurient one. Rather it is made for a specific purpose and in the wider public interest.
[33] The matter that does give me pause is the fact that there was an element of compulsion involved in the giving of at least some of the evidence that might be of interest to the Ministry. While any concern is somewhat ameliorated by the limits on the use to which the evidence may be put, something of a “softly softly” approach is warranted. Accordingly I will, in the first instance, grant the Ministry access to copies of my two judgments together with the information necessary to identify Ms Alder’s and Mr Hanover’s true identities. I will also grant access to copies of Ms Alder’s evidence (affidavits and transcript) provided that the Ministry first submits (and arranges to have executed) a proposal by which identifying and personal information about the parties (and in particular the two children) other than Ms Alder and Mr Hanover, can be redacted prior to its release.
[34] In terms of access to the judgments leave is granted to Ms Pollett to provide copies immediately to the relevant WINZ officers, together with information disclosing (if necessary) the true identity of Mr Hanover and Ms Alder.
[35] Leave will be reserved to the Ministry to apply further if that is deemed necessary.
“Rebecca Ellis J”
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