Re Harder (No 2) - [2023] NZHC 620

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV 2014-485-11211

[2023] NZHC 620

IN THE MATTER OF an application to access court documents under the Senior Courts (Access to Court Documents) Rules 2017 in relation to the Court’s file in Osborne v Ministry of Business, Innovation and Employment

CHRISTOPHER HARDER

Applicant

Hearing: 2 February 2023 (further memoranda filed various dates ending 22 March 2023)

Counsel:

Applicant in person

A Hill for WorkSafe New Zealand

Judgment:

24 March 2023

JUDGMENT OF MALLON J

Introduction

[1] This judgment follows on from a judgment delivered on 22 December 2022 and is to be read with it.1 That judgment provides some context for the application for access to the High Court’s file in a judicial review of the dismissal of charges arising out of the Pike River coal mine tragedy. It also sets out the relevant rules for accessing court documents under the Senior Courts (Access to Court Documents) Rules 2017. It granted access to some documents but sought further information, directed inquiries about potentially interested parties in the application and directed an oral hearing for consideration of the balance of the application.

1 Re Harder [2022] NZHC 3615.

RE HARDER (NO 2) [2023] NZHC 620 [24 March 2023]

Interested parties

[2] In accordance with directions given in my 22 December 2022 judgment, the Registry contacted the lawyers who acted for Mr Whittall (the Chief Executive of Pike River Coal Ltd at the time of the tragedy) to advise them of the application to access court records. They advised that they had no instructions on the matter. Crown Law advised that the only other potentially interested party was the Wellington District Court (which had been a party to the judicial review). As is customary, the District Court had not taken an active part in that proceeding and was not expected to take an active part in the application for access to court records. Counsel for the District Court subsequently confirmed that it abided the Court’s decision on the application.

Applicant

[3] Mr Harder’s application was said to be made as a “McKenzie Friend” for Dean Dunbar and Bernie Monk. Mr Dunbar and Mr Monk lost family members in the tragedy. Following my 22 December 2022 judgment, Mr Dunbar and Mr Monk have confirmed that Mr Harder, “either in his own capacity or as [their] McKenzie Friend” is “fighting” for them and they are grateful for his involvement. At the subsequent hearing, Mr Monk confirmed his support of Mr Harder’s involvement by his presence with Mr Harder at that hearing.

[4] Mr Harder accepted that McKenzie Friend was an inapt description of his role. He wrote the documents filed by the Court and presented the arguments at the hearing I directed. He has a law degree but is unable to practise as a lawyer. He agreed that he should simply be regarded as a non-party applicant to the High Court file, who was self-representing,…

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.

Continue reading Re Harder (No 2)

Details

AGLC: Re Harder (No 2) [2023] NZHC 620
Case: [2023] NZHC 620
Decision Date: 24 March 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Christopher Harder applied for access to court documents under the Senior Courts (Access to Court Documents) Rules 2017, in relation to the Court's file in Osborne v Ministry of Business, Innovation and Employment. The application followed a previous judgment on 22 December 2022, where the Court had granted access to some documents but sought further information. The legal issues the Court had to decide included whether the applicant's claim of privilege was valid and whether the release of privileged documents would be contrary to the fair administration of justice. The Court found that the applicant, despite being a third party, was supported by the victims' families, and the public interest in transparency outweighed the factors against disclosure of the documents over which privilege was claimed. The Court granted the application for access to the court file, with some exceptions regarding privileged documents.

The Court ordered that Mr Harder, along with Mr Dunbar and/or Mr Monk, could listen to the court recording of the hearing and transcribe any specific part of the recording they wished to review. WorkSafe did not oppose Mr Harder's access to the recording. The Court also granted Mr Harder access to the written submissions, affidavits, and the index of documents, except where they referred to the privileged documents over which privilege was claimed. Furthermore, Mr Harder was granted access to an MBIE document dated 5 December 2013, subject to confirmation from WorkSafe that it did not oppose access. The application for access to the court file was granted as set out in the judgment.

Orders