New Zealand Animal Law Association v Attorney-General

[2020] NZHC 3263

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-43

[2020] NZHC 3263

UNDER

The Judicial Review Procedure Act 2016 and the Animal Welfare Act 1999

IN THE MATTER OF

the Code of Welfare: Pigs 2018 and the Animal Welfare (Care and Procedures) Regulations 2018

BETWEEN

THE NEW ZEALAND ANIMAL LAW ASSOCIATION

First Applicant

SAVE THE ANIMALS FROM EXPLOITATION

Second Applicant

AND

THE ATTORNEY-GENERAL

First Respondent

THE MINISTER OF AGRICULTURE
Second Respondent

THE NATIONAL ANIMAL WELFARE ADVISORY COMMITTEE

Third Respondent

On the papers

Counsel:

G Coumbe QC and B Woodhouse for the Applicants N Butler for first and second Respondents

R Roff for third Respondent

Judgment:

10 December 2020

JUDGMENT OF CULL J

[Access to Court Documents No. 2]

THE NEW ZEALAND ANIMAL LAW ASSOCIATION v THE ATTORNEY-GENERAL [2020] NZHC 3263

[10 December 2020]

[1] The applicants, the New Zealand Animal Law Association and Save Animals from Exploitation, brought judicial review proceedings against the respondents, the Attorney-General, the Minister of Agriculture, and the National Animal Welfare Advisory Committee, challenging the lawfulness and validity of certain standards and regulations in the Code of Welfare: Pigs 2018 and the Animal Welfare (Care and Procedures) Regulations 2018 – both issued under the Animal Welfare Act 1999. The hearing took place on 8-9 June 2020 and the judgment was delivered on 13 November.1 The applicants were successful in their review and the relevant standards and regulations were declared unlawful and invalid.

[2]    Ms Catriona MacLennan, barrister and journalist, seeks access to all of the file documents.2 The applicants oppose the application; the respondents do not.

[3]    Ms MacLennan supports the application by submitting that she has an interest in animal issues and animal law and has been involved in animal advocacy since the 1980s. She has written extensively in the media about such issues, the details of which can be found on her website She wants to access the documents to obtain a “full understanding” of the detail of the case, rather than relying on simply the Court judgment and other media reports. Ms MacLennan says she might at some time in the future write about the proceedings and wants to do so from an informed position, rather than based on limited information.

[4]    The applicants oppose the application for the most part and request that it be declined. They do not, however, object to access to the formal Court record,3 to their statement of claim, or to the supplementary submission that was handed up by Counsel on the second day of the hearing. That supplementary submission addresses the ground of unlawful purpose, which was upheld in the judgment and does not refer to the affidavit evidence.

[5]    Earlier this year, after the hearing but before the judgment was released, I received an application for access to copies of the applicants’ submissions and

1      New Zealand Animal Law Association v Attorney-General [2020] NZHC 3009.

2      Senior Court (Access) to Court Documents) Rules 2017.

3      Rule 8(1).

affidavits from New Zealand Pork. In my judgment of 11 September 2020,4 I declined the application on the basis that the reason underlying the application did not reflect the purposes underlying the Senior Courts (Access to Court Documents) Rules 2017 (the Rules). The request was made on behalf of a private organisation pursuing its own purposes rather than a journalist or media organisation and therefore it had less to do with public access and participation in the proceedings, upon which the principle of open justice is founded. I also found that there were privacy concerns, and the request was for far more detailed information than one would be able to gather from watching the Court hearing, not only in respect of legal submissions but also information about who has provided certain evidence on certain topics. I granted access to the statement of claim only.

[6]    In that judgment, which should be read alongside this judgment, I outlined the relevant law and principles applicable to an access to court documents application.5 They do not need repeating here. I note first that I am satisfied that proper reasons have been given for the present application. Ms MacLennan has explained that access to the documents would give her a better understanding of the detail of the case should she want to, in the future, write about the decision and proceedings from an informed position. This is sufficient for r 11(2) of the Rules.

[7]    Turning to the balancing test under r 12, evidently some, but not all, of the grounds for refusal raised in the earlier application for access to documents are relevant here. The same privacy interests are at play. Again, the applicants have raised that a number of people who provided affidavits do not wish their affidavits to be provided to third parties. The witnesses have expressed concern about possible industry retaliation if their involvement became known. As noted in the earlier judgment, personal identities can be dealt with by restricting access to particular affidavits and/or  retracting names from the  applicants’ submissions,  though under  r 13(c)(ii), privacy interests have greater weight now, after the substantive hearing.

[8]    The principal difference between the two applications is that the NZ Pork application was made on behalf of a private organisation pursuing its own purpose.

4      New Zealand Animal Law Association v The Attorney-General [2020] NZHC 2376.

5      At [5]-[9].

Here, Ms MacLennan is a barrister and journalist who writes for most of the main media organisations in New Zealand. The principle of open justice is therefore more relevant to the present application. This is particularly so given the present application is for access after the substantive hearing, in which open justice has greater weight in relation to documents that have been relied on in a determination than other documents.6

[9]    However, as the applicants suggest, there is little reliance on the parties’ affidavit evidence in the judgment. The affidavit evidence went very much to the applicants’ unreasonableness submission, which I found was inappropriate for the Court to entertain (and irrelevant given the outcome on the other grounds of review).7 On balance, I therefore decline the application for access in relation to the affidavit evidence.

[10]   I do, however, grant access to the parties’ main submissions filed, subject to any redactions for witness names and other details that the applicants wish to make. The submissions do not contain confidential or commercially sensitive material, as in some of the other cases,8 and appropriate redactions can address any particular privacy concerns. I also grant access to the applicants’ supplementary submission handed up on the second day of the hearing, the pleadings and the general Court file, subject to any redactions for witness names and other details that the parties request.

Result

[11]Ms MacLennan is entitled to access the formal Court record.

[12]   Ms MacLennan is entitled to access the pleadings, subject to the redactions made by the applicants.

[13]   Ms MacLennan is entitled to access the parties’ main submissions and the applicants’ supplementary submission, subject to any redactions made by the applicants.

6      Rule 13(c).

7      New Zealand Animal Law Association v Attorney-General, above n 1, at [149] and [187]-[197].

8      See, for example, Crimson Consulting Ltd v Berry [2018] NZCA 460, [2019] NZAR 30.

[14]The application is otherwise declined.

Cull J

Solicitors:

John Miller Law, Wellington for the Applicants

Crown Law, Wellington for the first and second Respondents Wakefield Lawyers Ltd, Wellington for the third Respondents