Harrison v Harrison

[2021] NZHC 524

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2078

CIV-2019-404-2566 [2020] NZHC 524

IN THE MATTER

Of the Valerie Geard Trust

BETWEEN

PAULINE JANICE HARRISON

Plaintiff

AND

ADRIENNE HARRISON and GRAEME

ROSS HARRISON as trustees of the Valerie Geard Trust

Defendants

On the Papers:	At Whangarei
Judgment:	16 March 2021

JUDGMENT (No. 3) OF POWELL J

[Application for Transcript]

This judgment was delivered by me on 16 March 2021 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

HARRISON v HARRISON (Judgment No. 3) [2020] NZHC 524 [16 March 2021]

[1]                 On 19 November 2020 I issued a judgment1 dealing with a number of interlocutory applications in relation to two proceedings brought by the plaintiff, Pauline Harrison:

(a)  CIV-2019-404-2078 (“the 2078 proceedings”); and (b) CIV-2019-404-2566 (“the 2566 proceedings”).

[2]As a result of my decision:2

(a)The 2078 proceedings were struck out.

(b)The claims against the ASB Bank Limited in the 2566 proceedings were struck out.

(c)An extended order was made pursuant to s 166(2) of the Senior Courts Act 2016 preventing Ms Harrison from commencing or continuing civil proceedings on any matter the subject of proceeding in CIV-2019-404- 2566 or otherwise relating to or involving the Valerie Geard Trust, the Valerie Geard Waiheke Trust, or the applicants in either their capacity as trustees of those trusts or their personal capacity in a senior court, another court, or a Tribunal.

(d)Ms Harrison was ordered to pay security for costs in the 2566 proceeding in respect of each of the first, second, third and fourth defendants in the sum of $20,000 for each defendant, a total of $80,000, with the security to be paid within 28 days of the expiry of the order made pursuant to s 166(2).

[3]                 I subsequently issued a further judgment on costs, specifying various amounts to be paid by Ms Harrison.3

1      Harrison v Harrison [2020] NZHC 3066.

2 At [32].

3      Harrison v Harrison (Costs) [2020] NZHC 3505.

[4]                 Ms Harrison has appealed the substantive judgment and costs award and has made a formal application “for court transcript of electronic recording from the interlocutory hearing on 30 July 2020”. The other parties to the litigation do not oppose or otherwise abide the decision of the Court on the application.

[5]                 As Ms Harrison is aware, no transcript has been prepared for the hearing on 30 July 2020 and, in fact, I declined to direct the production of one following the hearing on 30 July 2020. Instead, at Ms Harrison’s request, a copy of the audio files for the hearing has already been provided as acknowledged in Ms Harrison’s application.

[6]                 The relevant principles were recently summarised by Gordon J in Wiki v NZ Police:4

Requests for access to court documents fall under the Senior Courts (Access to Court Documents) Rules 2017 (the Rules).

As Ms Wiki was a party to this appeal, she has a general right to search, inspect and copy any part of the court file or any document relating to the proceeding.5

However, the transcript of Ms Wiki’s appeal does not fall within the definition of a document, in the context of an appeal, or within the definition of the court file.6 That is because there is at present no written transcript of the appeal hearing in this Court. The only resource available is the electronic recording of the hearing.

Therefore, Ms Wiki does not have a right to access the transcript. Rule 3(3) provides that the Rules do not require a Registrar or any other person to prepare a document that is not in existence at the time a person asks to access it.

The Court of Appeal stated in Mackenzie v Attorney-General, “[b]ecause there is time and expense involved in the preparation of a transcript of a hearing, transcripts are not prepared as a matter of course”.7

The Supreme Court’s comments in Siemer v Heron provide guidance as to whether Ms Wiki should be granted access to the transcript:8

[9]  … There are obvious resource implications if judges direct  court registries to provide parties with transcripts of hearings of appeals and interlocutory matters general on demand by litigants. For

4      Wiki v Police [2018] NZHC 2378 at [5]-[11].

5      Senior Courts (Access to Court Documents) Rules 2017, r 9(4).

6      Rule 4.

7      Mackenzie v Attorney-General [2016] NZCA 24 at [22].

8      Siemer v Heron [2011] NZSC 116. See also Mackenzie v Attorney-General, above n 7, at [22];

Cook v Housing New Zealand Corp [2017] NZHC 3202 at [11].

that reason, judges should always first satisfy themselves that there is good reason in the interests of justice for giving such directions …

I also note Dobson J’s comments in Misiuk v Superintendent of a Penal Institution:9

[19] … The resources of the Ministry to undertake  such transcription are limited … Obviously, any widespread practice of producing transcripts of electronic recordings in response to requests

… would create substantial resourcing difficulties for the Ministry. (citations included)

[7]                 Having reviewed Ms Harrison’s notice of appeal filed in the Court of Appeal, I am satisfied that there is no “good reason in the interests of justice” for now directing that a transcript of the 30 July 2020 hearing be prepared and provided to Ms Harrison. Nothing in the notice of appeal indicates that anything occurring in the course of the hearing is in any way at issue in Ms Harrison’s appeal. On the contrary, the appeal is entirely directed at substantive matters. Given that position it is apparent that those substantive matters can, as they were before me, be determined on the basis of the material placed before the Court without any need for a transcript. It is accordingly impossible to discern any useful purpose in directing that a transcript be prepared.

[8]Ms Harrison’s application is dismissed. There is no order as to costs.

Powell J

9      Misiuk v Superintendent of a Penal Institution HC Auckland CIV-2010-404-6625, 8 October 2010.