Loughlin v Director of the Serious Fraud Office

[2017] NZHC 2820

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-002975 [2017] NZHC 2820

BETWEEN

JOHN JAMES LOUGHLIN

Plaintiff

AND

THE DIRECTOR OF THE SERIOUS FRAUD OFFICE

Defendant

Hearing:	(On the papers)
Counsel:	G M Illingworth QC and A K Hyde for Plaintiff P J Morgan QC for Defendant
Ruling:	16 November 2017

RULING OF VENNING J Re: Access to documents

This judgment was delivered by me on 16 November 2017 at 4.45 pm, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Morrison Mallett Lawyers, Wellington

Copy to:            Serious Fraud Office, P O’Neil, General Counsel, Auckland

G Illingworth QC, Auckland

P J Morgan QC, Hamilton

NBR

LOUGHLIN v THE DIRECTOR OF THE SERIOUS FRAUD OFFICE [2017] NZHC 2820 [16 November

2017]

[1]      On 4 September 2017 the Court delivered a decision on Mr Loughlin’s application to judicially review the Director’s decision to exclude his counsel of choice from attendance at interview.  The judgment finally determined the application for judicial review.  The judgment contained some redactions, primarily to protect the identity of persons who were not parties to the proceedings.

[2]      The SFO has recently publicly stated that it has concluded its investigation into the matter and no proceedings will follow.

[3]      The NBR reported on the initial decision.  Ms Young of the NBR now seeks access to the unredacted judgment “as part of [NBR] research into the SFO’s investigation into Zespri”.

[4]      The application is made under the Senior Courts (Access to Court Documents)

Rules 2017.  In accordance with r 11(3) the request was referred to the parties.  Both parties oppose the request. Mr Illingworth QC makes the point that the parties named in the unredacted judgment (and anonymised in the redacted judgment) were all interviewed under a confidential and compulsory process of law. He submits it would be wrong and unfair for their names and other information to be made public after submitting to a process of that kind.

[5]      In determining the request the Court is directed to consider the nature of and the reasons given for the request and, in the circumstances of this case, the following relevant considerations:

(a)       the orderly and fair administration of justice;

…

(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; … 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; …

[6]      Rule 13 confirms that in applying r 12 the Court must have regard to the fact that 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.

[7]      I  accept  that  Ms Young  and  NBR  have  a  proper  interest  in  the  SFO’s investigation into Zespri. That is not, however, determinative.

[8]      The redactions were made to protect the confidentiality and privacy of parties who were not before the Court as parties on Mr Loughlin’s application. The reference to them was in most parts incidental to the reasoning in the judgment on Mr Loughlin’s application for judicial review.

[9]      Having regard to the relevant considerations I am satisfied that the orderly and fair administration of justice, including the facilitation of future SFO investigations and the exercise of the compulsory powers under the SFO Act will not be promoted by the publication of the names of the parties whose names were redacted in the judgment.

[10]     Mr Loughlin had the right to bring the proceedings to the Court but the other individuals would not have been named were it not for the proceedings. Insofar as the principle of open justice operates to ensure the fair and accurate reporting of and comment on Court hearings and decisions it is met by the availability of the redacted version of the judgment.  The judgment and the reasons for it are readily understood without the need to refer to the names of those other parties.

[11]     While the NBR has the right to seek, receive and impart information, it has the original substantive judgment and has reported on it. It is not necessary to publish the identity of the parties who were named incidentally and in the course of the judgment.

[12]     To the extent that the publication of the names might be of interest to the NBR

and the public, that interest is effectively trumped by the consideration of r 13(c)(ii),

namely that the protection of confidentiality and privacy interests has greater weight given that the substantive judicial review proceeding has now been concluded.

[13]     For the above reasons the application for access is declined.

Venning J