Re Tupou

[2018] NZHC 637

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-002123

[2018] NZHC 637

IN THE MATTER OF

an application by L Tupou for Review of Registrar’s/Deputy Registrar’s Decision for Waiver/Refund of Fees

Applicant

Hearing:	[On the Papers]
Appearances:	L Tupou for the Applicant
Judgment:	11 April 2018

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 11 April 2018 at 10.00 am, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

To: L Tupou, Auckland

APPLICATION BY L TUPOU FOR REVIEW OF REGISTRAR’S DECISION [2018] NZHC 637 [11 April 2018]

Introduction

[1]                 Radio New Zealand (RNZ) applies to review a decision of the Deputy Registrar declining to waive the $30 fee for access to the court file for Commissioner of Police v Borlase.

[2]                 That court file concerns an application by the Commissioner of Police for restraining and forfeiture orders over Mr Borlase’s property following his convictions for corruption and bribery of public officials.1

[3]                 RNZ submits that the $30 fee should be waived because the Borlase proceeding involves matters in the public interest, and that the reporting of those matters is fundamental to the principle of open justice.

Legislative framework

[4]                 Regulations prescribing the fees payable for certain applications are authorised under s 156 of the Senior Courts Act 2016 (SCA). The High Court Fees Regulations 2013 prescribe the applicable fees for accessing the court file. If the request is made by a party to the proceeding, or a fee for searching the court record has already been paid, then no fee is payable. A fee of $30 is payable in any other case.

[5]                 The SCA governs the waiver of fees. Section 157 provides for regulations to be made allowing for the waiver of fees in certain circumstances. That section provides:

157     Regulations providing for waiver, etc, of fees

(1)In order to promote access to justice, the Governor-General may, by Order in Council, make regulations authorising a Registrar or Deputy Registrar of a senior court to waive, reduce, or postpone the payment of a fee required in connection with a proceeding or an intended proceeding, or to refund in whole or in part a fee that has already been paid.

(2)Regulations made under subsection (1) must provide that a Registrar or Deputy Registrar may only exercise a power under the regulations if he or she is satisfied on the basis of prescribed criteria that—

1      See R v Borlase [2016] NZHC 2971.

(a)the person responsible for payment of the fee is unable to pay or absorb the fee in whole or in part; or

(b)unless 1 or more of those powers are exercised in respect of a proceeding that concerns a matter of genuine public interest, the proceeding is unlikely to be commenced or continued.

(3)For the purposes of subsection (2), regulations may prescribe criteria—

(a)for assessing a person's ability to pay a fee; and

(b)for identifying proceedings that concern matters of genuine public interest.

(4)No fee is payable for an application for the exercise of a power specified in subsection (1).

[6]                 Regulation 18 of the High Court Fees Regulations 2013 sets out the basis upon which a Registrar may waive a fee as follows:

18       Power to waive fees

(1)A person otherwise responsible for the payment of a fee required in connection with a proceeding or an intended proceeding may apply to a Registrar for a waiver of the fee.

(2)The Registrar may waive the fee payable by the person if satisfied,—

(a)on the basis of one of the criteria specified in regulation 19, that the person is unable to pay the fee; or

(b)that the proceeding,—

(i)on the basis of one of the criteria specified in regulation 20, concerns a matter of genuine public interest; and

(ii)is unlikely to be commenced or continued unless the fee is waived.

[7]                 Section 161 of the SCA deals specifically with the waiver of fees for access to court records. That section provides:

161     Judge or Registrar may waive certain fees

A Judge or Registrar of a senior court may, subject to any terms or conditions that the Judge or Registrar thinks fit, waive the payment of a fee prescribed under section 156 for accessing documents (in whole or in part) if the Judge or Registrar is satisfied that the person is unable, or should not be required, to pay the fee.

[8]                 As is apparent from the face of these sections, the power to waive fees arises under s 157 and reg 18, and under s 161. But the criteria for waiver differ as between these provisions. The basis upon which a Registrar may waive the fee payable is narrower under s 157 and reg 18 than under s 161.2

[9]                 The first question is which of these provisions apply in this case. Before turning to that question, I consider the approach to be taken to an application to review the Deputy Registrar’s decision – whether it was made under s 157 and reg 18, or under s 161.

Approach to review

[10]              Section 160 of the SCA provides for review of a decision of a Deputy Registrar made under regulations enacted pursuant to s 157(1). Such a review is to be conducted by way of rehearing.3  Sections 157 and 160 preserve  the position as it  was under   ss 100A and 100B of the Judicature Act 1908.

[11]              Section 160 does not specifically provide for a right of review of a decision made under s 161. The absence of an express statutory review provision appears to be an anomaly and may have arisen because there was no equivalent to s 161 under the Judicature Act.

[12]              Nevertheless, the power to review a decision of the Deputy Registrar would fall within a Judge’s inherent power to direct and supervise Registrars in relation to the business of the Court. A Judge’s inherent power is to be exercised consistently

2      Section 157 expressly refers to both Deputy Registrars and Registrars. Section 161 only refers to the latter. However nothing of substance turns on that apparent difference as under s 34 of the SCA a Deputy Registrar has the same duties and powers as a Registrar, subject to a provision to the contrary in any other enactment or the High Court Rules, which does not apply in this case.

3      Section 160(4).

with express statutory provisions and applicable rules.4 In this case the inherent power should be exercised consistently with s 160(4), and with regard to  r 2.11  of the  High Court Rules which provides for the review of Registrar’s decisions made under those rules. Review under r 2.11 proceeds by way of a full rehearing.5

[13]              In light of those provisions, I have approached the application for review on the basis that a Deputy Registrar’s decision made pursuant to s 161 is amenable to review, and that the review proceeds by way of full rehearing with the question of waiver considered afresh.

Does the power to waive the fee arise under s 157 or s 161 of the SCA?

[14]              Section 157 is expressed in wide enough terms that an application to waive a fee for accessing documents could be said to arise under regulations made pursuant to that section. However, I consider the power to waive the fee for access to the court file arises under s 161 for the following reasons.

[15]              First, s 161 applies specifically to waiver of fees for accessing documents, rather than waiver of fees more generally as provided for in s 157. Parliament has deemed it appropriate to provide for a specific power of waiver for applications for access to documents on the court file.

[16]              Second, the criteria for waiver specified in s 157(2) and reg 18 are apt for parties who must pay a fee to file an application or commence a proceeding, but they do not apply quite so neatly to applications by third party media organisations to access the court file.

4      See Greer v Smith [2015] NZSC 196, (2015) 22 PRNZ 785 at [6]. See also r 1.6 of the High Court Rules, which enables a Judge to dispose of a case as nearly as may be practicable in accordance with the provisions of the rules affecting any similar case, or in a manner thought best calculated to promote the objective of the rules, where a case arises for which no procedure is prescribed.

5      See Andrew Beck and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at HR 2.11.01

[17]              Third, the legislative history of the section suggests that it was inserted to allow waiver of the access fee for the media in certain circumstances. The report of the Ministry of Justice to the Justice and Electoral Committee on the Judicature Modernisation Bill (which became the SCA) included a recommendation that a new section be inserted to provide specifically for waiver of the fees payable to access the court record in certain circumstances. The report records:6

This would modify the current power which enables waiver if the person is unable to pay the fee – while the media is able to pay the fee, there are circumstances where they should not be required to do so. The proposal mirrors section 385A of the Criminal Procedure Act, and would support the principle of open justice.

[18]              Fourth, as noted in the report, s 161 mirrors s 385A of the Criminal Procedure Act 2011 which specifically provides for the waiver of fees payable for access to documents in criminal proceedings. The effect of s 161 is to allow waiver of the fee for access to documents on court files, whether civil or criminal, on the same basis.

[19]              It follows from the  above that the application  falls to  be  considered under  s 161, and not s 157 and reg 18. There is no suggestion that RNZ is unable to pay the

$30 fee in this case. The sole question is whether RNZ should be required to pay the fee.

Should RNZ be required to pay the fee?

[20]              There is no guidance to be gleaned from s 161 itself as to when a party should not be required to pay a fee. Nor have I found any cases  on  s 385A  of  the  Criminal Procedure Act which would provide assistance in answering this question.

[21]              Ms Tupou, on behalf of RNZ, submits that the proceeding involves a matter of public interest, and that reporting on the proceeding is consistent with the principle of open justice. She submits that the fee “hinders the ability of a public broadcaster to access public information” and prevents it from “performing its role as the eyes and ears of the public”. She submits that waiver is appropriate in this case.

6      Ministry of Justice Judicature Modernisation Bill: Report of the Ministry of Justice to the Justice and Electoral Committee (April 2014) at [257].

[22]              There can be no quibble with the important role that the media plays in the New Zealand justice system. The reporting of cases before the court gives voice to the principle that justice is to be administered openly and publicly. But that does not mean that the fee payable to access the court file should be waived whenever the media makes the application. Parliament would have expressly exempted the media from paying the access fee if that was what was intended. Something more is required before a Judge or Registrar may be satisfied that an applicant should not be required to pay the fee.

[23]              Waiver may well be warranted in cases where access to court documents to report on a case is of such high public interest that a media organisation should not be required to pay the $30 access fee. But I am not satisfied that this is one of those cases. I accept that there is a high public interest in the criminal proceeding which led to  Mr Borlase being convicted for corruption and bribery of public officials. But access was not sought for documents in relation to that criminal proceeding. Rather, the application was for access to documents filed in the follow-up civil proceeding in which the Commissioner of Police seeks to restrain and forfeit Mr Borlase’s property. Such a proceeding does not attract the same level of public interest as the criminal proceeding which led to Mr Borlase’s conviction and sentence in my view.

[24]              The fact that Whata J declined to grant the application for full access to the court file substantiates that position. Many of the factors relevant to determining the application for access to the court file will also be relevant to the decision to waive the

$30 fee.7  Cases in which the principle of open justice and the freedom to seek, receive

and impart information8 compel the grant of access are more likely to warrant waiver of the $30 fee than those cases where other principles assume greater importance. (For that reason, it makes sense that any waiver application be determined at the same time, or by the same Judge, who determines the access application).

7      For the matters to be considered in determining a request for access, see r 12 of the Senior Courts (Access to Court Documents) Rules 2017.

8      Rule 12(e) and (f) respectively.

[25]              In this case, Whata J found that other factors outweighed the public interest in the proceeding, at least insofar as access to the full court file was concerned. The Judge said:9

[11]  In the present case, given the underlying criminal activity, the public interest in the proceedings is strong. However, the restraining order proceedings are interim in nature.10 The substantive proceedings relating to the property are foreshadowed forfeiture proceedings. Furthermore, as the respondents have not challenged the application for restraining orders, there is no active dispute before the Court. In these circumstances, I consider that privacy considerations, together with the orderly management of the proceedings, outweigh the immediate need for access to the full Court file. I, however, will grant access to both a copy of the application for restraining orders (but not the supporting affidavits) and the court order.

[26]I do not consider that waiver of the fee can be justified in those circumstances.

[27]              Finally, I do not accept that the payment of the $30 fee hinders or prevents the media from reporting on the Borlase proceeding in this case as Ms Tupou submits. The $30 fee is a very small contribution to the administrative cost of processing the application for access to the court file. It is not prohibitive and does not act as an effective barrier for media organisations wanting to undertake research.

[28]              Overall, I am not persuaded that this is a case where the $30 fee should be waived. There is no reason why RNZ should not be required to pay the $30 fee for making an application to access the court file. The application for review is accordingly declined.

Result

[29]The application for review is declined.

Edwards J

9      Commissioner of Police v Borlase [2017] NZHC 2753.

10     Criminal Proceeds (Recovery) Act 2009, s 37(1).