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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZHC 3411
Decision Date: 18 December 2020

CaseChat Overview and Summary

In the case of Mau Whenua Incorporated v Mulligan, the High Court of New Zealand was called upon to decide whether Enterprise Miramar Peninsula Inc (EMP) should be granted access to the statement of claim in ongoing proceedings. The plaintiffs, Mau Whenua Incorporated and others, were pursuing legal action against several defendants, including EMP. EMP applied for access to the statement of claim under the Senior Courts (Access to Court Documents) Rules 2017 but failed to provide sufficient information to support their request. The Court was required to determine whether EMP's application complied with the relevant rules and, if not, whether any other factors should be considered in granting access.

The legal issue before the Court was whether EMP's application for access to the statement of claim complied with the requirements of the Senior Courts (Access to Court Documents) Rules 2017. Specifically, the Court needed to assess whether the application met the prescribed form and content requirements, particularly the necessity to provide reasons for the request. The defendants opposed the application, highlighting concerns about the potential disclosure of commercially sensitive information and the implications for the fair administration of justice. The Court had to balance these concerns against the principle of open justice.

The Court found that EMP's application did not comply with the prescribed form under rule 11(2) of the Rules because it failed to provide reasons for the request. Additionally, given the opposition from all defendants and the lack of any explanation as to the purpose for which access was sought, the Court declined to grant the order. The defendants argued that the request was made prematurely, before the substantive hearing, and that confidentiality and privacy interests should be given greater weight. The defendants also pointed to potential damage to their commercial reputations if the statement of claim were disclosed.

The Court concluded that the application did not meet the necessary requirements and, given the opposition, the Court was not prepared to grant the order. The Court noted that if the proceedings were to proceed to hearing, the principles protecting confidentiality and privacy interests might have to yield to the principle of open justice. However, the uncertainty surrounding the progression of the case meant that it might be premature to apply for access to the statement of claim even if a legitimate purpose were identified.

Orders