In the Matter of an application for access to the Court file in G v Commissioner of Police (Civ-2021 485-399)

[2024] NZHC 2631

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF G TO CONTINUE UNTIL FURTHER ORDER OF THE COURT

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-399

[2024] NZHC 2631

UNDER

the Senior Courts (Access to Court Documents) Rules 2017

IN THE MATTER

of an application for access to the Court file

in G v Commissioner of Police (CIV-2021- 485-399)

Hearing:	On the Papers
Judgment:	12 September 2024

JUDGMENT OF McQUEEN J

[1]This matter comes before me as Duty Judge.

[2]        Mr Marcelo Rodriguez Ferrere, Associate Professor at the  Auckland University Faculty of Law, applies for access to the statement of claim, statement of defence and submissions of counsel in the proceeding G v Commissioner of Police (CIV-2021-485-399). Mr Rodriguez Ferrere states  in  his application  that he is engaging in research on judicial review and wishes to look at the arguments presented to the High Court. He says he will meet any conditions imposed if his application is granted.

G v Commissioner of Police (CIV-2021-485-399) [2024] NZHC 2631 [12 September 2024]

[3]        The proceeding in question is an application for judicial review made by G that was determined by this Court in December 2022 (the High Court proceeding).1

[4]        The first and second respondents in the proceeding, the Commissioner of Police and the Chief Executive of the Department of Corrections, have no objection and therefore consent to the application, on the condition that any documents released should be released in a redacted form consistently with the suppression order which remains in place over G’s name, address and identifying particulars.2

[5]        G opposes the application and appears to seek an order that access to the High Court file or any part of it be permitted only by leave of the Court.

Access to Court Documents—legal principles

[6]        The Senior Courts (Access to Court Documents) Rules 2017 (the Rules) provide a regime for determining applications for access to court documents.

[7]        Rule 8(1) provides that every person has the right to access the formal court record relating to a civil proceeding.  The formal  court  record  is  defined  in  s 4 of the Rules and includes judgments, orders and minutes.  The documents  sought  by  Mr Rodriguez Ferrere are not included in the definition.

[8]        Accordingly, Mr Rodriguez  Ferrere’s  application  must  be  considered  under r 11. Rule 11 provides, relevantly, that:

(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

1      G v Commissioner of Police [2022] NZHC 3514 [High Court substantive judgment]. An appeal against this decision was allowed: Commissioner of Police v G [2023] NZCA 93 [Appeal against substantive judgment].

2      The third respondent, the Wellington District Court, filed an appearance recording it would abide

the decision of the Court in relation to G’s application for judicial review, and, unsurprisingly, does not appear to have expressed any view on the application for access to documents.

(c)gives reasons for asking to accessthe 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 thedocument, or conditions that enable the person to view but not copy the document).

(3)The Registrar must promptly give a copy of the request to the parties to the relevant proceeding or appeal, or to their lawyers, but redacted to the extent necessary to prevent disclosure of the address of the person who made the request.

(4)A Judge may dispense with the requirement in subclause (3) if it would be impractical to require notice to be served.

(5)A party who receives a copy of a request and who wants to object to it must give written notice of the objection to the Registrar, setting out the grounds on which the party objects,—

(a)before 3 pm on the third working day after the day on which the copy is received; or

(b)if the copy is received on a day on which a hearing relating to the document is proceeding, before 3 pm on the first working day after the day on which the copy is received.

…

[9]        Under r 11(7), a Judge may grant a request for access under this rule in whole or in part, without conditions, or subject to any conditions that the Judge thinks appropriate, or refuse the request.

[10]      In determining a request for access under r 11, the Judge “must consider the nature of, and the reasons for, the request” and take into account each of the following matters that are relevant:3

(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:

3      Rule 12.

(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.

[11]      These factors are not exhaustive, nor are they hierarchical. A balancing exercise of all the relevant factors is required and the weight to be given to the factors is a matter of discretion and evaluation.4

[12]Rule 13 requires the Judge, in applying r 12, to have regard to the following:

(a)before the substantive hearing, the protection of confidentiality and privacy interests and the orderly and fair administration of justicemay 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.

[13]Rule 14 permits the Judge to determine a request for access on the papers.

[14]      Rule 5 provides that the Rules do not affect the court’s inherent power to control its own proceedings and permits a Judge to direct that files of any kind may

4      Crimson Consulting Ltd v Berry [2018] NZCA 460, [2019] NZAR 30 at [16]; relying on Schenker AG v Commerce Commission [2013] NZCA 114, (2013) 22 PRNZ 286 at [32].

not be accessed without the permission of the Judge. The power typically is exercised sparingly because of the principle of open justice.5

Discussion

[15]      As Mr Rodriguez Ferrere’s application comes after the substantive hearing  (and indeed the decision delivered), the principle of open justice carries more  weight in this instance than it might had the request been made for access during another stage.6 However, there is no presumption of disclosure on this fact alone,7 and the need for protection of confidentiality and privacy interests has greater  weight than would be the case before or during the substantive hearing.8

[16]      I am required to weigh “the nature of, and the  reasons given for, the request” in terms of the relevant factors set out at r 12, and against the mandatory countervailing factors of “the protection of confidentiality and privacy interests and the orderly and fair administration of justice” in r 13.9

[17]      Mr Rodriguez Ferrere states in his application that he wishes to look at the arguments presented to the Court in this proceeding for the purpose of his judicial review research. G says that this request does not set out with sufficient specificity the reason why the assessment of the documents is required nor why the research cannot be carried out based on the information concerning G’s claim as recorded in the previous judgments. G also says that the previous judgments of the District Court and the senior courts have to a large extent satisfied the open justice  considerations  and the right to seek, receive and impart information. Therefore, G says access is not required.

[18]      While Mr Rodriguez Ferrere’s reasons for seeking documents are brief, I am satisfied that they are sufficient,  given his role as an associate  professor at a

5      Jessica Gorman and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [SCD5.01].

6      Rule 13(c)(i). G argues that there are still aspects of the proceeding that may be live but I do not consider that to be a strong point for present purposes.

7      Crimson Consulting Ltd v Berry, above n 4, at [32]; citing Schenker AG v Commerce Commission,

above n 4.

8      Rule 13(c)(ii).

9      Fuji Xerox New Zealand Ltd v Whittaker [2018] NZHC 1043 at [16].

New Zealand university law faculty. While it is the case that both this Court and the Court of Appeal have given detailed judgments in relation to G’s judicial review claim, I do not accept that this in principle will necessarily be a complete answer to open justice considerations.

[19]      While G opposes the application in its entirety, I consider that the request for pleadings and the request for submissions should be assessed separately. I understand G’s objections to rely primarily on privacy and confidentiality matters, which are most relevant to the submissions.

[20] I am satisfied that it is appropriate to grant Mr Rodriguez Ferrere access to the statement of claim and statement of defence in the High Court proceeding. As it appears G has name suppression by order of the District Court10 and he has interim name suppression in this Court,11 any identifying particulars of G should be redacted from those documents. Such redactions are a relatively straightforward exercise. For the statement of claim, removal of G’s name, signature, occupation and address is required from the first and last pages of the document, as well as from [1]. No redactions are required for the statement of defence. These documents do not otherwise contain private or confidential information.

[21]      Providing access to the submissions of counsel is a more difficult question. G argues that the information in the submissions of both parties includes highly sensitive, confidential, privileged and personal information relating to G. Therefore, G submits that the protection of privacy, the right to bring and defend proceedings without disclosure of any more  information than is necessary, and the orderly and fair administration of justice should be the primary considerations.

[22]      G relies on Crimson Consulting Ltd v Berry12 to contend that the orderly and fair administration of justice in this context gives focus to the undesirability of interfering with access to justice through the courts by discouraging the filing of proceedings because of the fear of damaging or embarrassing publicity, and the risk

10     See Chief Executive of the Department of Corrections v G [2020] NZDC 10559; and Appeal against substantive judgment, above n 1, at [1].

11     High Court substantive judgment, above n 1, at [158]–[159].

12     Crimson Consulting Ltd v Berry, above n 4, at [35]–[37].

that confidentiality (or the operation of wide-ranging suppression orders) sought by  the parties might otherwise be undermined.

[23]      I agree with G that there are valid concerns about privacy and confidentiality in relation to the submissions. The level of redactions that would need to be made to the submissions if access was granted, given the suppression order in favour of G, would be significant.

[24]      G says that even where redactions can be made, they may limit any benefit of access as the level of redactions required in this case would result in a fundamental misunderstanding of the High Court proceeding such that there would be limited to no public interest in any research resulting from the grant of access.

[25]      G also says the administrative burden on the Court to redact the documents is onerous such that it is disproportionate to the benefit that may be derived from access.13 It is certainly the case that the Court does not have the resources available to conduct a substantial review of documents for the purpose of creating  redacted documents.

[26]      Having considered G’s concerns, I conclude that it is appropriate to decline the application for access to submissions. Mr Rodriguez Ferrere already has the benefit of the detailed judgments in the High Court and Court of Appeal in relation to the application for judicial review. This is similarly the case for the public at large. This is an important point in assessing the weight to be placed on the principle of open justice in relation to the application. I am satisfied that in balancing the matters to be considered in r 12 in circumstances where the substantive hearing has taken place, the protection of G’s confidentiality and privacy interests has considerable weight. Given this factor, the availability of the judgments and the provision of access to the statements of claim and defence, the balance of relevant considerations does not in my view favour provision of access to the submissions.

[27]      As for G’s apparent application for an order that access to the High Court file or any part of it be permitted only by leave of the Court, I consider this unnecessary.

13     Pilgrim v Attorney-General [2023] NZEmpC 84 at [10].

[28]      The effect of the Rules in this case is that other than in relation to the formal Court record, a request for access to documents will be made under r 11 and determined by a Judge, thus providing the protection of the access to court documents regime. As for the formal court record, the substantive documents included within the definition of that term are judgments and minutes. The judgments in this  proceeding are already publicly available. The minutes deal with administrative matters. G’s privacy and confidentiality concerns about such documents are, in my  view, sufficiently protected by the name suppression order in place.

Result

[29]      Mr Rodriguez Ferrere’s application for access to court documents is granted in part.

[30]      I direct the Registry to provide Mr Rodriguez Ferrere with a copy of the statement of claim dated 2 August 2021 (redacted as indicated in this judgment) and the statement of defence dated 10 September 2021.

[31]I decline to grant access to the submissions.

[32]      I decline to make an order that access to the High Court file or any part of it be permitted only by leave of the Court.

McQueen J