Kelly v Portfolio Property NZ Limited

[2021] NZHC 2944

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-748

[2021] NZHC 2944

BETWEEN

FIONNUALA MARY KELLY AS

PERSONAL REPRESENTATIVE OF THE ESTATE OF TYNAN FIACHRA KELLY

Appellant

AND

PORTFOLIO PROPERTY NZ LIMITED

Respondent

Hearing:	On the Papers
Judgment:	2 November 2021

JUDGMENT OF ISAC J

[Access to Court documents]

Introduction

[1]    Mary Argue, the applicant, is a student of journalism at Massey University. She seeks access to documents held on the High Court’s file concerning an appeal determined by Thomas J in Kelly v Portfolio Property NZ Ltd.1 The appeal to this Court was from a decision of the District Court,2 which itself dealt with an appeal from the Tenancy Tribunal.

[2]    As part of her study, Ms Argue is examining Tenancy Tribunal cases that have been appealed to the higher courts. She explains that her interests in the Wellington rental market led her to examine decisions of the Tenancy Tribunal, and her focus on this proceeding was the result of historical media reporting of the case.

1      Kelly v Portfolio Property NZ Ltd [2017] NZHC 915.

2      Kelly v Portfolio Property NZ Ltd [2016] NZDC 10815.

KELLY v PORTFOLIO PROPERTY NZ LIMITED [2021] NZHC 2944 [2 November 2021]

[3]In terms of the scope of the request, Ms Argue seeks:

(a)“the Tenancy Tribunal Order … as given by the adjudicator at the original Tenancy Tribunal hearing”; and

(b)a “transcript” of the Tenancy Tribunal hearing to which the order relates.

[4]    Finally, Ms Argue has also advised that her application for access to court documents was sent both to the District Court and High Court on the basis that each court would determine the application based on the documents held on its files.

[5]    I have concluded it is appropriate to grant the application. Having carefully reviewed the Court file again, however, I have disappointing news for Ms Argue. First, there does not appear to be a copy of the Tenancy Tribunal Order (which I take to mean “decision”), on the existing hard-copy file. It should be possible to obtain a copy of that decision from the Tribunal itself, however.

[6]    Second, while there are some fragmentary parts of the relevant transcript, it is incomplete, although it is also seems the Court previously held a complete copy of the transcript, possibly in electronic form.

[7]    On making further enquiry, I am advised that the Court does not retain electronic records dating back to the time the appeal was heard and determined, so it will not be possible to provide more than those parts of the transcript which are retained on the physical file.

[8]    While this will no doubt be frustrating for Ms Argue, it may be that she can obtain the complete transcript from either the District Court, or the Tribunal.

Position of the parties to the proceeding

[9]    In an email of 16 September 2021, Ms Fionnuala Kelly, mother of Tynan Kelly (the named appellant), and his personal representative who conducted the appeal

posthumously on her son’s behalf, indicated that she had no objection to Ms Argue’s application.

[10]   The respondent company, Portfolio Property  NZ  Ltd,  is  represented  by  Mr Craig Relph. In an email of 16 September 2021, he objected to Ms Argue’s application on the following ground:

(a)She is not a journalism student. She is in fact a reporter;3

(b)It was said Ms Argue lived in the same location as Ms Kelly. The implication being that the application was brought with the encouragement of Ms Kelly; and

(c)Mr Relph submitted Ms Kelly “continues to attack us, six and a half years after her son caused horrific damage to our property and extensive cleaning requirements.”

[11]   In a minute of 17 September 2021 I sought Ms Argue’s response to Mr Relph’s objection, as well as clarification of the scope of her request for access. Ms Argue provided a response on 21 September 2021, taking issue with Portfolio Property NZ Ltd’s grounds of objection.

Analysis

[12]   Access to Court documents is governed by the Senior Courts (Access to Court Documents) Rules 2017.

[13]   Broadly, the Rules provide for access to two kinds of documents. The first is access to the “formal court record”, to which the public have a general right of access. The second are any other documents, where the Court must exercise a discretion before the documents can be released.

3      Links were sent to three online articles to support this submission.

[14]As noted, Ms Argue seeks access to two court documents:

(a)The “Tenancy Tribunal Order”; and

(b)The transcript of the Tenancy Tribunal hearing which ultimately gave rise to the appeal to this Court.

[15]   As both documents do not fall within the category of documents constituting the “formal court record”, her application falls for consideration under rr 11–13.

[16]   A Judge may grant such a request with or without conditions, having considered:4

(a)the nature of the request;

(b)the reasons given for the request; and

(c)each of the matters set out in r 12 that are relevant to the request or any objection to the request.

[17]The matters for consideration under r 12 are:

(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:

4      Rule 12.

(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.

[18]   The approach to balancing the r 12 considerations is set out in r 13, which makes a distinction as to whether the request is made before, during, or after any substantive hearing. The protection of confidentiality and privacy interests have greater weight after a substantive hearing than would be the case during a substantive hearing.5

Discussion

[19]   The starting point is the nature of, and reason for, the request. While Mr Relph expressed concern over an alleged relationship between Ms Argue and Ms Kelly, and Ms Argue’s claim to be a journalism student rather than a journalist, I accept her request is one made in furtherance of her course of study. Nor would it matter, in my view, if she made the request as a journalist. It follows that I am satisfied the request for access is made for a proper and legitimate purpose.

[20]   The material sought also relates to judicial processes ordinarily conducted in public. And the subject matter does not concern sensitive proceedings of the type regulated by r 7.

[21]   Having turned my mind to the matters for consideration under r 12, I am satisfied that it is appropriate to order release of the Court documents that are still available on the Court file and which fall within the scope of the request. The proceedings have concluded and have already been the subject of publicly available judgments and media reporting. There are no countervailing privacy or confidentiality interests which have been identified. The documents sought are limited in nature, and form a record of a judicial process. In those circumstances, the freedom to seek, receive and impart information, and the principle of open justice, are paramount.

5      Rule 13.

Conclusion

[22]   As noted above, while the application is granted, the Court records now are, unfortunately, incomplete. Such records as were able to be identified as falling within the scope of the request will be released as soon as possible following the issue of this judgment.

Isac J