Ink Patch Money Transfer Limited v Reserve Bank of New Zealand

[2022] NZHC 840

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-573

[2022] NZHC 840

UNDER

the Judicial Review Procedure Act 29016

IN THE MATTER OF

the Reserve Bank of New Zealand Act 1989 and the Anti-Money Laundering and

Countering Financing of Terrorism Act 2009

BETWEEN

THE INK PATCH MONEY TRANSFER LIMITED

First Applicant

SAMOA MONEY TRANSFER LIMITED
Second Applicant

SAMOA FINANCE MONEY TRANSFER LIMITED
Third Applicant

KLICKEX PACIFIC LIMITED
Fourth Applicant

AND

THE RESERVE BANK OF NEW ZEALAND

First Respondent

THE MINISTER OF FINANCE

Second Respondent

On the papers:
Counsel:	No appearance for Applicants H Ebersohn for Respondents
Judgment:	27 April 2022

JUDGMENT OF CHURCHMAN J (RE MEDIA APPLICATION)

THE INK PATCH MONEY TRANSFER LIMITED & ORS v THE RESERVE BANK OF NEW ZEALAND & ANOR [2022] NZHC 840 [27 April 2022]

[1]        By statement of claim dated 13 October 2021, the applicants sought judicial review of certain decisions made by the respondent. The third applicant has discontinued its involvement in the proceedings by notice dated 16 March 2022.

[2]        Legal submissions on behalf of the first, second and fourth applicants were filed on 28 March 2022 with the respondents’ submissions being filed on 4 April 2022. All parties have filed affidavit evidence. No substantive hearing has yet taken place.

The application

[3]        By application dated 11 April 2022, Victoria Young, a journalist at BusinessDesk has applied under the Senior Courts (Access to Court Documents) Rules 2017 (the Rules) for access to the following documents:

(a)statement of claim;

(b)statement of defence;

(c)opening statements;

(d)closing statements;

(e)all minutes, judgments, and directions on the file.

[4]A copy of the application was forwarded by the Registrar to all counsel.

[5]        By email dated 12 April 2022, counsel for the respondents indicated that the respondents did not wish to be heard on the application and would abide the Court’s decision. The Registrar has indicated that no response has been received from counsel for the applicants.

The law

[6]        Rule 11 of the Rules provides that any person may ask to access to any document in a Court proceeding by providing the Registrar with a form that:

(a)identifies the person and gives the person’s address;

(b)sets out sufficient particulars of the document to enable the Registrar to identify it;

(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 if the Judge were prepared to grant the request subject to conditions.

[7]        Ms Young’s application clearly identifies her and provides her business address and sets out sufficient particulars to enable the Registrar to identify the document sought.

[8]        In terms of reasons for seeking access and the purpose for which access is sought, the application says:

We would like to cover this proceeding but are unable to have a reporter attend. The case has reached a hearing stage so there must be a presumption of openness. Furthermore the DIA has previous [sic] made public statements about ink money (see attached), so there is a public interest if there has been further regulatory interest.

[9]        The application does not set out any proposed conditions. It does not specifically state the purpose for which the documents are sought but I infer that as Ms Young is a representative of a media organisation that she intends to use the material obtained for the purpose of either writing a story on the case for publication in the print media or broadcast by other means in the electronic media.

[10]      Rule 12 lists a number of matters that the Court is required to consider. The relevant matters in respect of these proceedings include:

(a)the orderly and fair administration of justice;

(b)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;

(c)the protection of other confidentiality and privacy interests and any privileged held by or available to any person;

(d)the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions);

(e)the freedom to seek, receive and impart information;

(f)whether a document to which the request relates is subject to any restriction order.

[11]      As the Courts have noted, the principle of open justice is fundamental to our system of justice.1

[12]      The access of media organisations to court hearings and to documents filed in those hearings is an important aspect of the principle of open justice which the Court is required to consider.2 This principle applies irrespective of whether a media organisation wishes to be present in court, to report on a case, or wishes to have access to documentation.

[13]      Notwithstanding the absence of any response from counsel for the applicants, I am obliged to consider the various criteria set out in the rules. Rule 13 stipulates that a court considering such an application must have regard to:

(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–

1      See Crimson Consulting Ltd v Berry [2018] NZCA 460, [2019] NZAR 30 at [33].

2      Rule 12(e).

(i)greater weight than at other stages of the proceedings; 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;

(ii)the protection of confidentiality and privacy interests has greater weight than would be the case during the substantive hearing.

[14]      The fact that no substantive hearing has yet occurred, is therefore a matter of relevance. I note that the application does not extend to obtaining copies of the affidavit evidence in these judicial review proceedings. To the extent that there are likely to be matters involving the protection of confidentiality and privacy interests, or commercial sensitivity (see rr 12(c) and (d)), they are more likely to be in the affidavit evidence rather than the pleadings.

[15]      To the extent that I can make an analysis in the absence of any response from counsel for the applicants, it would appear to be in accordance with the principle of open justice for copies of the statements of claim and defence to be disclosed. The one qualification on this is that, as the third applicant has now discontinued the proceedings, those parts of the statements of claim and defence relating to it, should be redacted.

[16]      In relation to the request for “opening statements” and “closing statements”, presumably these are intended to refer to the submissions of counsel.

[17]      The submissions will be delivered in open court as and when the hearing proceeds. The Court of Appeal has indicated that documents relied on or referred to

at the hearing should be open to full scrutiny by all members of the public unless there are particular and strong reasons to the contrary.3

[18]      The hearing has not yet occurred. It is therefore always possible that parts of submissions exchanged in advance of the hearing may be modified or deleted. Caution is therefore required in any publicity given to submissions prior to their delivery in court.

[19]      The obligation of fair and accurate reporting would therefore favour publicity of submissions only once they have been given. I accept that access to written submissions now would assist Ms Young in ultimately preparing a fair and accurate report of the hearing but, in order to ensure that any article incorporating material from the submissions reflects what was actually said, I impose the condition that the contents of the submissions are not to be publicised until after they have been given in open court, and any publication is to reflect any qualifications or amendments to the submissions ultimately delivered.

[20]      There are as yet, no judgments on the file. The only minute or direction is an administrative one issued by Registrar Penney. There would seem to be no reason why a copy of that should not be made available.

Outcome

[21]      The applications are granted as detailed above. Leave is reserved to the applicants to move to vary this direction should there be confidential or commercially sensitive matters potentially affected by the making of these orders.

Churchman J

3      See Greymouth Petroleum Holdings Ltd v Empresa Nacional Del Petróleo [2017] NZCA 490, [2017] NZAR 1617 at [22], [25].

Solicitors:

Great Wall Lawyers, Auckland for Applicants Crown Law, Wellington for Respondents

Counsel:

M Lennard for Applicants cc:            Victoria Young