Little v New Zealand Law Society

[2022] NZHC 1505

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1515

[2022] NZHC 1505

IN THE MATTER

Of the Trans-Tasman Mutual Recognition Act 1997, the Lawyers and Conveyancers Act 2006 and an application for review under the Judicial Review Procedure Act 2016

BETWEEN

T G LITTLE

Applicant

AND

NEW ZEALAND LAW SOCIETY

Respondent

Hearing:	On the papers at Auckland
Judgment:	28 June 2022

JUDGMENT OF POWELL J

[Request for transcript]

This judgment was delivered by me on 28 June 2022 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

LITTLE v NEW ZEALAND LAW SOCIETY [2022] NZHC 1505 [28 June 2022]

[1]    On 29 April 2021 I declined Mr Little’s application for judicial review of a decision of the New Zealand Law Society after it refused to issue him with a practicing certificate to practice as a barrister on his own account.1 A subsequent judgment dismissed an application for recall of that judgment and fixed costs against Mr Little.2

[2]    Since then, Mr Little has unsuccessfully appealed to the Court of Appeal,3 and an application for leave to appeal to the Supreme Court has been dismissed.4

[3]    Against that background, Mr Little has filed a memorandum in which he has requested a copy of the transcript of the original High Court hearing which took place on 12 November 2020.

[4]    As is generally the case on applications for judicial review, no transcript of the hearing was prepared. This means that any transcript would have to be specifically prepared to meet Mr Little’s request.

[5]    The relevant principles were recently summarised by Gordon J in Wiki v Police:5

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.⁶

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.⁷ 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.

1      Little v New Zealand Law Society [2021] NZHC 929.

2      Little v New Zealand Law Society [2021] NZHC 1480.

3      Little v New Zealand Law Society [2022] NZCA 121.

4      Little v New Zealand Law Society [2022] NZSC 78.

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

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

7      Rule 4.

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”.⁸

The Supreme Court’s comments in Siemer v Heron provide guidance as to whether Ms Wiki should be granted access to the transcript:⁹

[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 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:¹⁰

[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)

[6]    Having reviewed Mr Little’s memorandum I am satisfied that there is no “good reason in the interests of justice” for now directing that a transcript of the 12 November 2020 hearing be prepared and provided to Mr Little. It is in fact altogether unclear as to why the transcript is sought but it does not appear to be linked to any extant appeal, and Mr Little has exhausted this avenue in any event. It is accordingly impossible to discern any useful purpose in directing that a transcript be prepared.

[7]Mr Little’s application is dismissed. There is no order as to costs.

Powell J

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

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

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

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