Kim v Christchurch City Council
[2022] NZHC 1461
•21 June 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2021-409-429 [2022] NZHC 1461
BETWEEN HYUNG SUN KIM
First Plaintiff
ROCKWELL E & C LIMITED
Second Plaintiff
ROCKWELL ONE LIMITED
Third Plaintiff
AND
CHRISTCHURCH CITY COUNCIL
First Defendant
SEISMOTECH CONSULTING LIMITED
Second Defendant
(continued over…)
Appearances: S D Campbell for Plaintiffs
H H Smith for First Defendant
H D J Holderness for Second and Third Defendants B J Sanders for Fourth Defendant
M C Harris for Fifth Defendant
C A Robertson for Sixth DefendantM O Robertson for Seventh Defendant
M van Beynen (Stuff Media) as Applicant for access to documents
Judgment:
21 June 2022
(Determined on the papers)
JUDGMENT OF OSBORNE J
[Request for Access to Court Documents]
This judgment was delivered by me on 21 June 2022 at 4.20 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
KIM v CHRISTCHURCH CITY COUNCIL [2022] NZHC 1461 [21 June 2022]
JOO HYUN CHO
Third Defendant
BLUE BARN CONSULTING LIMITED
Fourth Defendant
MIYAMOTO INTERNATIONAL NEW ZEALAND LIMITED
Fifth Defendant
WSP NEW ZEALAND LIMITED
Sixth Defendant
ISPS CONSULTING ENGINEERS NZ LIMITED
Seventh Defendant
Jurisdictional issue
[1] The request for access to court documents in this proceeding was referred to me by the Registrar because of an apparent uncertainty as to what is meant by a “Judge of the court” in r 4 of the Senior Courts (Access to Court Documents) Rules 2017 (the Access Rules) — does the term exclude Associate Judges?
[2] As it is in the interests of the applicant and the parties that the current request be determined now, I am proceeding to deal with the request. That said, the jurisdictional issue raised is one of some significance in the day-to-day administration of the Access Rules. The issue having been raised, I will return to it at the conclusion of this judgment.
Request
[3] Martin van Beynen (Stuff Media) has requested access to “all filings” on the Court file in this proceeding.
[4] Mr van Beynen made his request under the Access Rules. Under r 11(3), the Registrar provided a copy of the application to the parties to the proceeding. None has filed any memorandum in response. That may be explained by the fact that the Court has previously granted another media organisation access to the pleadings.1 I infer that it is primarily the pleadings on which Mr van Beynen focuses as he has stated in his application that “other media have already been granted access to the filings”.
The grounds of application
[5] Mr van Beynen states that he wishes to look at the documents because the subject-matter of the proceeding is one of public interest, being of major concern for the ratepayers of Christchurch. He understands the proceeding relates to a prominent, inner city building with defects, which cannot be occupied. He notes that it now appears the Council is being sued.
1 Kim v Christchurch City Council [2022] NZHC 1144.
Discussion
[6] The application correctly having been made under r 11 of the Access Rules, I am required in determining whether to grant the application to consider the nature of the request, the reasons given for its making and to take into account the matters set out in r 12, balanced by the considerations set out in r 13.
[7] These matters were fully considered by Mander J in relation to the previous application. The following key considerations, identified by the Judge, apply equally here:2
(a)the role of the news media and public interest;
(b)absence of privacy concern; and
(c)the state of the pleadings.
[8] I note that two defendants expressed concern in relation to the previous application that access to the documents at this stage would result in unfair or unbalanced reporting because of the state of the pleadings and the procedural complexity of the litigation.3 While none of the defendants has raised the same concern on this occasion, I adopt the conclusion reached by Mander J, namely that the proceeding is sufficiently advanced to allow an interested entity such as Stuff Media to understand the claims being made by the plaintiffs and the defendants’ respective responses that put those claims in contest. Accurate reporting will ensure that the reader of any prospective article about the case will understand that the proceeding remains at an early stage, the claim is one that has been defended, and no determination has been made by the Court as to its merits.4
[9] I will accordingly be granting Mr van Beynen access to the pleadings. Such access will enable Mr van Beynen to understand the nature of the case brought against the defendants and the defendants’ responses to that case.
2 Kim v Christchurch City Council, above n 1, at [8].
3 At [10].
4 At [10]–[11].
[10] For the avoidance of doubt, I confirm that, in the event Mr van Beynen’s request was not intended to replicate the previous application (with its focus on the pleadings) but was intended to cover other documents such as notices and memoranda, access to documents other than the pleadings is not granted at this point.
Order
[11]I grant Mr van Beynen access to the pleadings in this proceeding.
The jurisdictional issue
Rule 11(7) of the Access Rules
[12]Rule 11(7) of the Access Rules provides:
(7)A Judge may—
(a)grant a request for access under this rule in whole or in part—
(i)without conditions; or
(ii)subject to any conditions that the Judge thinks appropriate; or
(b)refuse the request; or
(c)refer the request to a Registrar for determination by that Registrar.
The meaning of a “Judge” in r 11(7)
[13] A jurisdictional issue in relation to the granting of a request for access under r 11(7) was identified in the decision of this Court in Korea Deposit Insurance Corporation v Huh.5 The Court in that case refused a request for access to documents. A concluding observation to Korea Deposit reads:
[11]Finally, I record that Yoonwoo [the applicant] suggested that its request be put before Associate Judge Bell, who Yoonwoo said is familiar with both this proceeding and the proceeding in which Yoonwoo is the plaintiff. I did not do that. To the extent that the request depended on r 11, an Associate Judge does not have jurisdiction: r 11 (7).
5 Korea Deposit Insurance Corporation v Huh [2020] NZHC 2589.
This observation has since been incorporated in the commentary in McGechan on Procedure.6
[14] The conclusion that “Judge of the court” excludes Associate Judges in the case of the High Court seems likely to have flowed from the distinction drawn in the Senior Courts Act 2016 (the Act) (and previously in the Judicature Act 1908) between a “Judge of the High Court” and an “Associate Judge of the High Court”.7 In the Rules, which apply to all the senior courts, r 4 states that “Judge means a Judge of the court”, unless the context otherwise requires.
[15] It might reasonably be suggested that in the context of rules dealing with access to court documents the term “Judge of the court” has at least some ambiguity, and that context will be critical to understanding its meaning.
[16] There are at least four matters of context in the Access Rules which suggest that a “Judge of the court”, in relation to the High Court, includes Associate Judges:
(a)Rule 11(7) itself
Rule 11(7)(c) (above at [12]) provides that the Judge who receives a request for access may refer the request to a Registrar for determination by that Registrar. In other words, pursuant to r 11(7)(c) the request for access may be referred to a Registrar for determination if a Judge thinks fit. If the term “Judge” is taken to be referring only to a “Judge of the High Court” as that term is used in the Act, to the exclusion of Associate Judges, then the consequence would be that the Rules Committee has seen fit to establish a regime in which it is within the power of Registrars, upon referral, to determine applications for access to court documents but not within the power of Associate Judges (to whom a request could not be referred, as they are not Registrars). The Access Rules do not need to be interpreted to provide such an odd outcome.
6 Andrew Beck (ed) McGechan on Procedure (online ed, Thomson Reuters) at [SCD4.10.01] and [SCD11.02].
7 See the interpretation provisions — s 4(1) Senior Courts Act 2016; s 2 Judicature Act 1908.
An appropriate outcome is achieved if the term “Judge” as used in r 11(7) is interpreted to include “Associate Judge”.
(b)Whose personal notes are covered by the Access Rules?
The definition of “document” in r 4 does not include notes made by or for a Judge for his or her personal use. It appears improbable that the “notes” referred to are intended to be limited to those of a Judge (in the narrow sense) — the apparent intention of the Access Rules is to cover notes made by all Judges (in the broad sense).
(c)Whose reasons are covered by the Access Rules?
The “formal court record” is defined in r 4 to include “any record of the reasons given by a Judge”. In parallel with the rule as to personal notes, it seems improbable that the “record” referred to does not include the record of reasons given by an Associate Judge.
(d)Who may direct non-access?
Rule 5(2) of the Access Rules provides:
5 Rules do not limit court’s powers
…
(2) … a Judge may, on his or her own initiative or on request, direct that judgments, orders, documents, or files of any kind may not be accessed without the permission of the Judge.
Again, it may be suggested that it is improbable that it was intended that an Associate Judge was under this rule not empowered to make a non-access order.
[17] A significant, earlier change to the access rules came about (in 2009) through the prior work of the Law Commission, particularly its Report on Access to Court
Records (2006).8 Until then, Registrars (in both the District Courts and in the High Court) had significant powers to determine access applications.9 In response to concerns as to the (limited) experience of Registrars of the District Courts in particular, the Commission recommended under a heading “Who should be the decision maker?” that, when leave is required under the rules to access any court record, it should be “by leave of a judge” (emphasis added).10 (This recommendation was implemented in the rules as then established for both the District Court and the High Court, with the qualification that a judge may refer a request to a Registrar.) Significantly, the recommended change was to take jurisdiction or power away from the Registrars and to place it with “judges”, because it is judges (not registrars) who have the “sufficient experience being asked to make decisions about the release of information that requires a balancing of interests”.11 This change was effected when the rules relating to access were completely revised in 2009 into the form that became the basis of the current rules. Rule 3.13(3) High Court Rules provided (in respect of applications for access other than at the hearing stage) that “[t]he application is heard and determined by a Judge or, if a Judge directs the Registrar to do so, by the Registrar”.12 Nothing in that legislative history suggests that the “judges” in question were all the judges (whether in the District Courts or the higher courts) with the exception of the Associate Judges of the High Court. In short, essentially the same regime is now contained in r 11(7) of the Access Rules as was implemented in 2009 through r 3.13(3).
[18] I therefore conclude that the term “Judge” as it is used in r 11 and elsewhere in the Rules is correctly interpreted in relation to the High Court as including an Associate Judge.
Jurisdictional issue
[19] It remains possible (notwithstanding the meaning appropriately to be given to “Judge” as it appears in the Rules) that the rule-maker has thereby purported to give to the Associate Judges a jurisdiction which they lack in terms of statutory authority.
8 Law Commission Access to Court Records (NZLC R93, 2006).
9 See, for instance, Judicature Act, sch 2, r 66. Discussed at Law Commission, above n 8, at [1.51]– [1.52].
10 See Law Commission, above n 8, at [5.66]–[5.68].
11 See Law Commission, above n 8, at [5.67].
12 As amended by the High Court (Access to Court Documents) Amendment Rules 2009.
This issue arises because the jurisdiction and powers an Associate Judge may exercise under the Senior Courts Act 2016 (previously s 26I Judicature Act) are those “powers of the High Court” in relation to identified matters. The argument may be that access to court documents is not one of the matters covered by ss 20 to 22 Senior Courts Act.
[20] It has been held that, because an application for access to records is generally made informally and is therefore not an interlocutory application, access requests do not come within the Associate Judges’ powers to determine interlocutory matters in chambers.13 That said, under r 14(a) of the Access Rules a Judge on receipt of a request may require the applicant to file an interlocutory application. It would follow that once such an interlocutory application is required and filed, an Associate Judge would then for that reason have jurisdiction to deal with the application in chambers.
[21] An alternative source of jurisdiction for an Associate Judge lies in s 20(1)(j) of the Senior Courts Act, whereby an Associate Judge has the jurisdiction and powers of the High Court in relation to “any other matter that an Associate Judge has jurisdiction to deal with under an enactment”.
[22] The High Court Rules themselves are deemed to be part of the Senior Courts Act (by s 147(1)) of that Act.
[23] The Access Rules materially follow the access rules as they were contained (in the case of the High Court) in rr 3.5 to 3.16 High Court Rules until the Access Rules were introduced in 2017 to bring to all the senior courts a consistent approach to access applications.
[24] As the High Court Rules, including the provisions specifically relating to access to documents, were deemed to be part of the Judicature Act, and they were appropriately to be interpreted as providing for Associate Judges to determine access applications, it would follow that no issue arose as to the jurisdiction of Associate Judges in such matters, at least until 2017. That appears to be how the then-rules were interpreted and applied, as Associate Judges often dealt with such applications.
13 McGechan, above n 6, at [SCD4.10.01], citing Siemer v Auckland High Court [2019] NZHC 3393, (2019) 25 PRNZ 561 at [4].
[25] The issue that appears to now arise, in my view, is whether as a matter of statutory interpretation the removal of the access rules into their own set of rules (no longer a subpart of the High Court Rules), was intended to revoke or otherwise alter the jurisdiction that had previously been established. The Senior Courts (Access to Court Documents) Rules 2017, are not deemed to be part of the Senior Courts Act under s 147(1) — the deeming provision is expressed to relate to the High Court Rules (from which the access rules have since 2017 been removed).
[26] As I have not had the benefit of submissions on this issue of intended or accidental revocation, and such issue would need to be informed by focused submissions, I simply recognise it as a point that deserves determination.14 That said, I recognise that the reason for the removal of this subpart of the High Court Rules into a discrete set of rules appears to have been focused on producing consistency of rules between the senior courts and not on altering substantively the existing access rules that already applied in the High Court.
Osborne J
Solicitors:
Wynn Williams, Christchurch — Plaintiffs Simpson Grierson, Christchurch — First Defendant
Shaun Cotterill Law, Christchurch — Second and Third Defendant Darroch Forest Lawyers, Wellington — Fourth Defendant
Gilbert Walker, Auckland — Fifth Defendant Hesketh Henry, Auckland — Sixth Defendant
Robertsons Associates Ltd, Auckland — Seventh Defendant
14 I am informed there is pending before the Court of Appeal the hearing of an appeal from an access decision made by an Associate Judge in which the question of the jurisdiction to make the order arises. That case may provide the best opportunity for the guidance of the Court of Appeal on a matter that impacts on the day-to-day administration of the access rules that apply to this Court.
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