Mau Whenua Incorporated v Mulligan

[2020] NZHC 3411

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-366

[2020] NZHC 3411

BETWEEN

MAU WHENUA INCORPORATED

First Plaintiff

WHAREAHURU GILBERT and MARTHA HINEONE GILBERT

Second Plaintiffs

KAREN MARAMA PARATA, MABEL URU TANIRAU and

ROGAN RAWIRI HOHAPE TANIRAU

Third Plaintiffs

AND

WAYNE THOMAS MULLIGAN, JOHN FREDERICK COFFEY,

HOLDEN HOHAIA, TOA WOODBINE POMARE, MAHINA HABER-PUKETAPU, KIM SKELTON, PAORA JENKINS- MEPHAM and HUIA PUKETAPU
First Defendants

PETER SAMUEL JACKSON, HANNAH MARY BUCHANAN, HOWARD KEVIN TAMATI, NEVILLE MCCLUTCHIE BAKER, MORRIS TE WHITI LOVE and

IHAKARA JAMES PUKETAPU-DENTICE

Second Defendants

SHELLY BAY INVESTMENTS LIMITED
Third Defendant

SHELLY BAY TAIKURU LIMITED

Fourth Defendant

On the papers:

Counsel:

M Smith for Applicant

V L Heine, C J Curran and M W McMenamin for Plaintiffs D J Neutze and T J Cooley for First and Second Defendants

S L Robertson QC and L Clark for Third and Fourth Defendants

MAU WHENUA INCORPORATED v WAYNE THOMAS MULLIGAN, JOHN FREDERICK COFFEY,

HOLDEN HOHAIA, TOA WOODBINE POMARE, MAHINA HABER-PUKETAPU, KIM SKELTON, PAORA JENKINS-MEPHAM and HUIA PUKETAPU [2020] NZHC 3411 [18 December 2020]

Judgment: 18 December 2020

JUDGMENT OF CHURCHMAN J

[1]                 Enterprise Miramar Peninsula Inc (EMP), by application dated 8 December 2020 signed by Mary Anderson, who is described as a “liaison officer”, applied pursuant to the Senior Courts (Access to Court Documents) Rules 2017 (the Rules) for access to the statement of claim in these proceedings.

[2]                 Under the heading of the printed form used by the applicant which said: “We want to look at these documents because:”, the applicant has simply written the words “Interested party”. No other information is provided in support of the application.

[3]                 The plaintiff does not oppose the application but, by a joint memorandum of counsel dated 16 December 2020, the first, second, third and fourth defendants all oppose the application.

The law

[4]The Rules govern requests for access to Court documentation.

[5]                 The form of application is prescribed by r 11(2). That rule requires a request for access to contain the following information:

(a)identify the person requesting access;

(b)sufficiently identify the document that is sought to be accessed;

(c)give reasons for asking to access the document, which must set out the purpose for which the access is sought; and

(d)set out any conditions of the right of access that the person proposes as conditions that he or she will be prepared to meet with a Judge to impose these conditions.

[6]                 The application by EMP satisfies the requirements of (a) and (b) but not (c). It does not refer to (d) at all.

[7]                 The Court has a discretion to refuse an application for a request on the basis that it does not comply with r 11(2).1

[8]                 In the absence of any explanation as to the purpose for which access is sought and, given the opposition of all of the defendants, the Court is not prepared to grant the order sought.

[9]                 Had the application disclosed a legitimate purpose for accessing the statement of claim, the Court would then be obliged to consider rr 12 and 13.

[10]             Rule 12 provides that the Court must consider the nature of, and the reasons given for, the request and take into account each of the matters set out that is relevant to the request or any objection to the request.

[11]             The defendants, in opposing the application point to the following relevant considerations under r 12: the orderly and fair administration of justice,2 the right to bring and defend civil proceedings without the disclosure of matters that are commercially sensitive more than is necessary to satisfy the principle of open justice,3 the protection of other confidentiality and privacy interests,4 and the principle of open justice.5

[12]             At the moment, due to the complete lack of relevant information, the Court is unable to undertake a consideration of any of these relevant matters.

[13]             The defendants also draw to the Court’s attention the fact that the Court, when making an assessment under r 12, is obliged to have regard to r 13 which requires different weightings be applied at different stages of the proceeding namely before the substantive hearing, during the substantive hearing, and after the substantive hearing.

1      See Senior Courts (Access to Court Documents) Rules 2017, r 11(8).

2      Rule 12(a).

3      Rule 12(c).

4      Rule 12(d).

5      Rule 12(e).

[14]             The defendants note that EMP has made its application prior to the substantive hearing and refer to the fact that r 13(a) provides that in such a situation the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited.6

[15]             The defendants correctly submit that prior to a substantive hearing, the protection of confidentiality and privacy interests, and the orderly administration of justice are to be given greater weight and the principle of open justice less weight.

[16]             The defendants refer to recent publicity which would indicate that, as a result of the withdrawal of a funding source, the plaintiffs in these proceedings are impecunious and that these proceedings may well never proceed to hearing. That would be a relevant factor for the Court to consider if it got to the stage of an assessment under r 12.

[17]             The defendants further note that the statement of claim contains serious allegations against the defendants which could be damaging to the commercial reputation and interests of the defendants should a copy of the statement of claim be provided to EMP.

Conclusion

[18]             The request for access to the statement of claim fails to comply with the requirements of the Rules and is declined on that ground. It also contains insufficient information for the Court to be able to make the assessment required under r 12 given that the application is opposed.

[19]             If a further application was made once the proceedings had reached the stage of hearing, then the principles protecting confidentiality and privacy interests may well have to give way to the principle of open justice. However, it appears there is a likelihood that this matter may never proceed to hearing. That uncertainty would indicate that it may well be premature to apply for access to the statement of claim

6      See Greymouth Petroleum Holdings Ltd v Empresa Nacional Del Petroleo EN&P [2017] NZCA 490.

even if the applicant were able to provide details of a legitimate purpose for which access is sought.

Outcome

[20]The request for access is declined.

Churchman J

Solicitors:

Russell McVeagh, Wellington for First, Second and Third Plaintiffs Brookfields Lawyers, Auckland for First and Second Defendants

Dentons Kensington Swan, Wellington for Third and Fourth Defendants Crown Law Office, Wellington for Registrar-General of Land

Counsel:

M Smith, Barrister, Wellington for Applicant cc:            Enterprise Miramar Peninsula Inc