New Zealand Animal Law Association v Attorney-General

[2020] NZHC 2376

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 2376

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:

11 September 2020

JUDGMENT OF CULL J

[Access to Court Documents]

THE NEW ZEALAND ANIMAL LAW ASSOCIATION v THE ATTORNEY-GENERAL [2020] NZHC 2376

[11 September 2020]

[1] The applicants, the New Zealand Animal Law Association and Save Animals from Exploitation, have 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 is to be delivered.

[2]    Ms Clement, a policy manager at New Zealand Pork (NZ Pork) and on its behalf, seeks access to copies of the applicants’ submissions and affidavits.1 NZ Pork is not a party to the proceeding. It is a statutory industry board that represents the interests of New Zealand commercial pig farmers. The applicants oppose the application; the respondents do not.

[3]    Ms Clement supports the application by noting that accessing the requested documents would help NZ Pork understand the reasons for the applicants’ concerns with the specific minimum standards in the Pigs Code of Welfare and the animal welfare concerns in the Regulations. She says that NZ Pork actively supports farmers to ensure that the animal welfare of pigs on commercial pig farms is well provided for. She says it is very important that NZ Pork are well informed of legal concerns expressed with New Zealand pig farming and the processes around standard-setting to be able to support both farmers and pigs. Ms Clements adds that she attended the hearing along with a colleague and so is broadly aware of the nature of the case but would gain a better understanding from accessing the documents requested.

[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 record2 or to their statement of claim.

1      The documents are described in Ms Clement’s email as “all material (submissions and affidavits) from the first and second applications”. I understand that what is sought are the applicants’ submissions and affidavits only and I proceed on that basis.

2      Senior Court (Access) to Court Documents) Rules 2017, r 8(1).

Access to Court documents – legal principles

[5]    The Senior Court (Access) to Court Documents) Rules 2017 (the Rules) guide the Court’s discretion on whether to grant a third party access to court documents. Every person has a general right of access to the formal Court record in the proceeding, defined in r 4 of the Rules as including judgments, orders and minutes.3 A person may exercise such general rights by asking the Registrar, orally, for access to the documents. The formal Court record does not include pleadings, submissions or affidavits.

[6]    Ms Clement does not have a general right of access to the submissions and affidavits on the Court file.4 The file does not form part of the formal court record and NZ Pork are not a party to the proceeding.5 Where a person does not have a general right to access they may ask the Registrar for access to any document.6 Rule 11 sets out a number of requirements the application must include. The application is then put before a judge who may grant or refuse a request, grant it subject to conditions, or refer the request to a Registrar for determination.7

[7]    In determining a request for access under r 11, the Judge “must consider the nature of, and the reasons for, the request” and take into account each of the following matters that are relevant:8

(a)    the orderly and fair administration of justice:

(b)    the right of a defendant in a criminal proceeding to a fair trial:

(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 (including those of children and other vulnerable members of the community) 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

3      Rule 8(1).

4      Rule 4.

5      Rules 4, 8 and 9.

6      Rule 11.

7      Rule 11(7).

8      Rule 12.

decisions):

(f)     the freedom to seek, receive, and impart information:

(g)    whether a document to which the request relates is subject to any restriction under rule 7:

(h)    any other matter that the Judge thinks appropriate.

[8]    The above factors are not exhaustive and nor are they hierarchical. No one factor, including open justice, has primacy: a balancing exercise of all the relevant factors is required and the weight to be given to the various factors is a matter of discretion and evaluation.9

[9]    While there is no presumption in favour of disclosure, the effect of r 13(b) is to accord open justice a higher priority at the operative date of the application.10 In the context of the Rules, that means that access to information covered by the Rules is to be given greater weight than at other stages of the proceedings, and particularly in relation to documents relied on in the hearing.11 Rule 13 requires the Judge to have regard to this when balancing the r 12 matters.

Does the request comply with r 11(2)?

[10]   Rule 11(2) requires that the person seeking access must provide the Court with a request that:

(a)    identifies the person and gives the person’s address; and

(b)   sets out sufficient particulars of the document to enable the Registrar to identify it; and

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

(d)   sets out any conditions of the right of access that the person proposes as conditions that he or she would be prepared to meet were a Judge to impose those conditions (for example, conditions that prevent or restrict the person from disclosing the document or contents of the document, or conditions that enable the person to view but not copy the document).

9      Schenker AG v Commerce Commission [2013] NZCA 114, (2013) 22 PRNZ 286, relied on in

Crimson Consulting Ltd v Berry [2018] NZCA 460, [2019] NZAR 30 at [32].

10     See paragraph (a)(ii) of the definition of “substantive hearing” in r 4.

11     Rule 13.

[11]   The applicants submit that the request does not set out with sufficient specificity the reasons and purpose for the request as required by subclause (2)(c) and does not propose any conditions that NZ Pork would be prepared to meet were a judge to grant access as required by subclause (2)(d).

[12]   Addressing first the specificity required for the reasons and purpose for the request, the cases in which the reasons have been found to be insufficient are generally where the person seeking the request has provided very little to no information about their reasons. For example, in Schenker AG and Schenker (NZ) Ltd v Commerce Commission, the only reason advanced in the letters of request was that the applicant “may have suffered loss as a result of the alleged conduct in these proceedings”.12 There was no amplification or detail about what Schenker’s interest in the Court documents might be. It was not even specified that there were contemplated parallel proceedings, though the parties accepted that might be so. On appeal, the Court of Appeal found that the reasons advanced for access to the Court’s records were too broadly cast and vague.13 The request for documents was declined.

[13]   Similarly, in Fuji Xerox New Zealand Ltd v Whittaker, the reason given for the request was:14

We act for a client who is currently in a dispute with Fuji Xerox. Based on publicly available reports detailing the plaintiff’s claims against the defendants in the [present] proceeding, we reasonably apprehend that the Statement of Claim will contain allegations relevant to the dispute between our client and Fuji Xerox.

[14]And then minorly expanded in later correspondence:15

We act for a client who is in a commercial dispute with Fuji Xerox. Our client believes there have been aspects of the way Fuji Xerox has managed its account and relationship with it that may parallel the allegations contained in the Statement of Claim about the way some Fuji Xerox staff have operated.

[15]   The Judge held that the purpose for which access is sought should be articulated in a way that allows the Court to weigh “the nature of, and the reasons

12     Schenker, above n 9, at [6].

13 At [33].

14     Fuji Xerox New Zealand Ltd v Whittaker [2018] NZHC 1043 at [6].

15 At [7].

given for, the request” in terms of the relevant factors set out at r 12, and against the mandatory countervailing factors of “the protection of confidentiality and privacy interests and the orderly and fair administration of justice” in r 13.16 The Judge concluded that he could not make that assessment from the reasons given, and dismissed the application for access to the statement of claim.17

[16]   I do not consider the present reasons for the request are comparable with those which have been held to be insufficient in terms of r 11(2). NZ Pork have explained that access to the documents would help it better understand the legal issues around the minimum standards and Regulations under dispute in the substantive proceedings, and in particular the applicants’ concerns. It says this is important to help it do its job in supporting farmers “to ensure that the animal welfare of pigs on commercial pig farms is well provided for” in light of any legal concerns. This is sufficient to allow the Court to weigh the r 12 and 13 factors and meets the requirement in r 11(2)(c).

[17]   I also consider the absence of proposed protections under r 11(2)(d) is not fatal to NZ Pork’s application, although this is something I will consider in the following section.

The balancing test

[18]   The relevant matters to be considered are the principle of open justice and the freedom to seek information,18 privacy interests,19 and the orderly and fair administration of justice.20

[19]   The principle of open justice carries more weight in this instance than it might had the request been made for access during another stage of the proceeding.21 However, it does not flow from this that a third party is therefore entitled to access the submissions and affidavits of a proceeding. As the Court of Appeal acknowledged in

16 At [16].

17 At [16].

18     Rules 12(c), (e) and (f) and 13(b).

19     Rules 12(c), (d) and (h).

20     Rule 12(a).

21     Rule 13.

Crimson Consulting Ltd v Berry22 and Schenker,23 there is no presumption of disclosure.

[20]   Further, the principle of open justice is to encourage fair and accurate reporting and comment on court hearings and decisions. The provision of access in the Rules is intended to promote the public interest in open justice. The following passage from Greymouth Petroleum Holdings Ltd v Empresa Nacionale Del Petroleo explains:24

[25] These divisions [in stages of the proceeding] reflect that during the substantive hearing open justice has greater weight, in particular in relation to documents admitted in evidence. When a court is engaged in hearing a dispute its workings, including documents referred to or relied on, should be open to full scrutiny by all members of the public, unless there are particular and strong reasons to the contrary. The public should be able to follow and understand the hearing process. However, prior to and after the substantive hearing, the importance of public scrutiny is less, as the court is not hearing and resolving the dispute. …

[21]   As this Court recently held, the principle of full scrutiny by the public to enable it to follow the proceeding underpins the principle of greater access during trial.25 In contrast, the present application has less to do with public access and participation in the proceedings, as the request for access is made on behalf of a private organisation pursuing its own purposes rather than by a journalist or media organisation.26 The reason underlying the application therefore does not reflect the purposes underlying the access Rules and the principle of open justice carries less weight accordingly.

[22]   Turning to privacy interests, the applicants have raised that a number of people who provided affidavits do not wish their affidavits to be provided to third parties. Although personal identities could be dealt with by restricting access to particular affidavits and/or retracting names from the applicants’ submissions, (though I note this is not a protection proposed by the applicant under r 11(2)(d)), I am not persuaded that any of the affidavits and submissions should be provided to NZ Pork. Such a request is for far more detailed information than one would be able to gather from watching

22     Crimson Consulting, above n 9, at [15] and [16].

23     Schenker, above n 9, at [37].

24     Greymouth Petroleum Holdings Ltd v Empresa Nacionale Del Petroleo [2017] NZCA 490, [2017] NZAR 1617.

25     Cridge v Studorp Ltd [2020] NZHC 1836 at [17].

26 At [38].

the Court hearing, even if it was recorded, and not only in respect of legal submissions but also information about who has provided certain evidence on certain topics.

[23]   Finally, it is important for the orderly and fair administration of justice that documents are not disclosed to third parties for ulterior purposes, and that those who can assist in its administration are not deterred from giving evidence.

[24]   I therefore decline the application for access in relation to the applicants’ affidavits and submissions.

[25]   I add that I do not understand there is any opposition to NZ Pork accessing the applicants’ statement of claim. I consider that the pleadings, along with the eventual judgment and the information gathered from watching in Court, are sufficient to inform NZ Pork of the applicants’ legal concerns. The pleadings themselves are full and detailed – they define the true scope of the proceeding and are sufficient to meet NZ Pork’s stated purpose in requesting access.

Result

[26]The applicant is entitled to access the formal Court record.

[27]   The applicant is entitled to access the statement of claim. This is subject to any redactions that may be requested and are granted.

[28]The application is otherwise declined.

Cull J

Solicitors:

John Miller Law, Wellington for the Applicants
Crown Law, Wellington for first and second Respondents

Wakefield Lawyers Ltd, Wellington for the third Respondents