Queen Elizabeth the Second National Trust v Netherland Holdings Limited
[2014] NZHC 920
•6 May 2014
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2013-409-001704 [2014] NZHC 920
BETWEEN QUEEN ELIZABETH THE SECOND
NATIONAL TRUST Plaintiff
AND
NETHERLAND HOLDINGS LIMITED First Defendant
AND
R H WOBBEN AND D H WOBBEN Second Defendants
Hearing: 6 May 2014 (On the papers) Appearances:
F B Collins and P Kirby for Plaintiff
C J Shannon for DefendantsL Reid-Hunt for Waimakariri Irrigation Ltd, seeking access to a document on a Court file
Judgment:
6 May 2014
JUDGMENT OF DUNNINGHAM J Application for Access to Documents on Court File
[1] Waimakariri Irrigation Limited (WIL) applies for access to any affidavit of
Mr Roelof Wobben filed in respect of these proceedings.
[2] The request was initially made under r 3.9 of the High Court Rules, presumably because it was prompted by the issue of my judgment dated 26 February
2014 which made reference to the content of that affidavit. However the Registrar identified that proceeding is yet to progress to a substantive hearing, so the application was amended to refer to r 3.13 of the High Court Rules.
[3] The plaintiff’s claim is for breach of a statutory covenant created under the
Queen Elizabeth the Second National Trust Act 1977 to protect three areas of remnant kanuka scrubland on the first defendant’s property. During the course of the
QUEEN ELIZABETH THE SECOND NATIONAL TRUST v NETHERLAND HOLDINGS LIMITED AND ANOR [2014] NZHC 920 [6 May 2014]
proceedings an application was made for interim injunction orders, which were granted by consent, restraining the defendants from doing certain things in respect of the three areas of land which are subject to the covenant.
[4] The plaintiff then filed an interlocutory application claiming that the defendants were in contempt of Court for breaching the interim injunction orders. I heard that application on February 2014 and, in my judgment of 26 February 2014, I held that some of the orders had been breached and the defendants were in contempt of Court.
[5] One of the allegations concerned the irrigation of one of the covenanted areas of land, known as Block A, on 11 January 2014, when the terms of the order precluded it. At issue was whether the irrigation occurred due to circumstances beyond Mr Wobben’s control or not. Mr Wobben’s farm is supplied with irrigation water by WIL, and he provided an explanation about how his farm’s irrigator came to dispense irrigation water over the covenanted land. The gist of that explanation was that, contrary to his instructions, the WIL raceman failed to turn off the water at the appointed time, which meant water continued to be fed to the irrigator and it continued its path over the first defendant’s land, including over Block A.
[6] WIL, in making its request for access to Mr Wobben’s affidavit evidence, said:
Our client is not a party to the proceedings but requests a copy of the affidavit because it is aware from paragraph [25] of the judgment that evidence was filed in relation to its actions. Our client therefore has an interest in what was said about them.
[7] Presumably, if there was a miscommunication to, or misunderstanding by, WIL and its staff, then WIL would want to resolve how and why that happened to avoid it happening in the future.
Determining an application under r 3.13
[8] In determining an application under r 3.13, r 3.16 requires me to consider the nature of, and the reasons for the application or request, and take into account each of the following matters:
(a) the orderly and fair administration of justice;
(b) the protection of confidentiality, privacy interests (including those of children and other vulnerable members of the community), and any privilege held by, or available to, any person;
(c) the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, Court hearings and decisions;
(d) the freedom to seek, receive and impart information;
(e) whether a document to which the application or request relates as subject to any restriction under r 3.12; and
(f) any other matter that the Judge or Registrar thinks just.
The r 3.16 factors are non-hierarchical and need to be weighed in the context of the proceedings in which the application is made.1
Reasons for the request
[9] The only reason given for the request was that, because the evidence relates to actions of WIL, WIL has an interest in what has been said about them. To some extent then, WIL is pursuing a private interest, but, as was acknowledged in the
decision of Associate Judge Bell in Sanofi-Aventis Deutschland GNBH v AFT
Pharmaceuticals Ltd,2
a request is not an illegitimate simply because the person
making the request is pursuing a private interest. In the present case I can infer that WIL has a legitimate reason for seeking access to evidence which might suggest a shortcoming in their procedures, and which, if substantiated, they would want to
rectify.
1 Schenker v Commerce Commission [2013] NZCA 114 at [37].
2 Sanofi-Aventis Deutschland GNBH v AFT Pharmaceuticals Ltd [2012] NZHC 1051.
The orderly and fair administration of justice
[10] Netherland Holdings Limited (NHL) and Mr Wobben rely on this consideration to oppose WIL’s request saying “the proceedings are generally a private dispute between the QE II National Trust on the one hand and NHL and Mr Wobben. There is a continuing relationship between them arising from the covenants on NHL’s land. It will be some time until the substantive hearing takes place. It is important to encourage co-operation. That is unlikely to be assisted if non-parties can scrutinise everything that Mr Wobben says”.
[11] The principle that the absence of scrutiny by non-parties allows the parties to the litigation to co-operate in the conduct of the proceeding more efficiently has been
highlighted in a number of cases.3
In addition, disclosure designed to encourage
settlement may be dissuaded if the case is open to public scrutiny prior to the substantive hearing stage.
[12] However, in the present case, the material sought falls into a somewhat different category from that normally sought prior to the substantive hearing. It is material which has already been given in evidence in a public hearing and has been traversed in substance in the judgment I issued following that hearing. For that reason I do not see that the reasons which are normally relied on to decline access prior to the substantive hearing in the interests of orderly and fair administration of justice apply with the same force in the present circumstances. The relevant material
sought is already effectively open to public scrutiny.
[13] As the defendants say, paragraph 25 of my earlier judgment fully summarises the following three paragraphs from Mr Wobben’s affidavit sworn on 3 February
2014 which explain how an irrigator came to be spraying water on Block A on 11
January 2014. He says:
[16] To order water for irrigation on the Farm, I telephone or email the irrigation company Waimakariri Irrigation and tell them when I want the water turned on and off. When the water is turned off Waimakariri Irrigation turn off the water supply and their raceman is
3 See for example, Commerce Commission v Air New Zealand Ltd High Court Auckland CIV-
supposed to close the gate on the pond so that further water cannot come down the water race.
[17] The paddock next to Block A has a centre pivot type irrigator, which means the irrigator goes around the radius of part of a circle. Block A has kanuka trees growing in part of the Block and is near the end of the circles radius. Obviously the irrigator stops if the water supply stops. Therefore it is possible to irrigate some of the paddock and then stop the irrigator before it reaches Block A.
[18] On 11 January 2014 it was not deliberate that Block A was watered.
What happened was that the water and irrigator was supposed to turn off before it reached Block A. Unfortunately it did not due to miscommunication with the raceman. The water race was not closed when it should have been. I did not want to irrigate Block A. The failure of the irrigator to stop also meant that a crop was irrigated that was due to be harvested which I did not want to happen either.
[14] That explanation (which is all that is said on the relevant issue in the context of an eight page affidavit with a number of annexures), provides no more information than was summarised in the judgment.
The protection of confidentiality and privacy
[15] The evidence to which access is requested was presented in Mr Wobben’s defence in a public hearing which might suggest there are no special reasons why the defendant’s privacy should take precedence over the principle of open justice, which is discussed next. However, the majority of the affidavit deals with matters which are not relevant to WIL, including material which is personal to Mr Wobben and his family’s circumstances. There is no reason why this personal information should be disclosed to a non-party, particularly when the information of interest to WIL is already fully disclosed in my earlier judgment as paragraphs [12] and [13] above confirm.
The principle of open justice
[16] While the weight of decisions on r 3.13 have tended to move away from the suggestion expressed by Wild J in BNZ Investments Ltd and Commissioner of Inland
Revenue,4
that the open justice criterion is paramount, it remains a relevant
consideration to be taken into the mix. However, given that my earlier judgment has
4 BNZ Investments Ltd and Commissioner of Inland Revenue HC Wellington CIV-2004-485-1059
already set out the substance of Mr Wobben’s affidavit as it relates to WIL, and I have cited the relevant evidence in full above, there is no further reason why, having regard to the principle of open justice, WIL should have access to the affidavit itself.
The freedom to seek, receive and impart information
[17] The same reasoning applies to the next criterion, which is the freedom to seek, receive and impart information. While WIL has a proper interest in receiving the information which relates to its actions, that evidence is now in the public arena. This criterion has therefore been satisfied, albeit not in the way WIL sought.
[18] There are no matters under 3.16 (e) and (f ) that require consideration.
Procedure
[19] While the defendants are opposed to the application for access being granted, and have asked to be heard on the matter if WIL should continue to seek it, I do not think that is required. Pursuant to r 3.13(7) I am entitled to deal with an application on the papers, at an oral hearing, or in any other manner I consider just. As was said in National Standards Committee (No. 1) v Deliu,5 “r 3.13 does not contemplate that a formal hearing will always or even usually be required before a decision on the application is made”, and this is reinforced by the fact that the Registrar can be
directed to deal with the application.
[20] The defendants have fully articulated their reasons for wanting the application declined in their letter to the Registrar. In the particular circumstances of the request I do not consider that I would be assisted by holding a hearing on the
matter.
Outcome
[21] In my view, weighing up the considerations under r 3.16 and taking into account that:
5 National Standards Committee (No. 1) v Deliu [2013] NZHC 2503 at [21].
(a) the applicant has a legitimate reason for wanting to see the affidavit;
(b) however the substance of the affidavit evidence sought by WIL is already available in my earlier judgment so is already public; and is quoted in full in this judgment; and
(c) WIL has no proper interest in seeing any other part of the affidavit evidence than that which is already in the public arena.
[22] The application is declined.
Solicitors:
Duncan Cotterill, Christchurch
Gibson Sheat, Wellington
0
2
0