Roebuck v Liddle

[2023] NZHC 665

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2021-441-70

[2023] NZHC 665

UNDER

the Senior Courts (Access to Court Documents) Rules 2017

BETWEEN

JASON GREGORY ROEBUCK AND VICTORIA ROEBUCK

First Plaintiffs

JASON GREGORY ROEBUCK, VICTORIA ANN ROEBUCK AND PETER JOHN ROEBUCK AS TRUSTEES OF THE TAHI TRUST

Second Plaintiffs

AND

ROBERT JAMES LIDDLE

First Defendant

AMANDA ELIZABETH LIDDLE
Second Defendant

HASTING DISTRICT COUNCIL
Third Defendant

SIGMA CONSULTING ENGINEERS LIMITED

Fourth Defendant

REDHEAD ARCHITECTURE LIMITED
Fifth Defendant

FORMWORKS HB LIMITED
Sixth Defendant

HARDCORE CONCRETE LIMITED
Seventh Defendant

M J FOGARTY PAINTING & DECORATING LIMITED

Eighth Defendant

ROEBUCK AND ROEBUCK & ANOR v LIDDLE & LIDDLE & ORS [2023] NZHC 665 [29 March 2023]

WYNANDS MASONRY LIMITED

Ninth Defendant

REALDEAL ROOFING LIMITED
Tenth Defendant

HAWKES BAY MEMBRANE SOLUTIONS LIMITED

Eleventh Defendant

MITCHELL LIETZ

Twelfth Defendant

Hearing:	On the Papers
Judgment:	29 March 2023

JUDGMENT OF McQUEEN J

[Access to Court documents]

Introduction

[1]    Tom Hunt, a reporter from Stuff NZ, has made a request for access to court documents in this proceeding. He seeks “all relevant court documents including pleadings and affidavits”, for the purpose of ‘following-up’ on stories that he has previously written regarding events relating to this proceeding.1 His application says that he would be willing to comply with any conditions imposed by the court but that he would prefer if there were no conditions on the use of any information to which he may be entitled.

Legal framework for access to court documents

[2]    Applications for access to court documents are assessed within the framework provided by the Senior Courts (Access to Court Documents) Rules 2017. Rule 8 provides that every person has the right to access the formal court record relating to a civil proceeding. The “formal court record” is defined in r 4 to include “a judgment, an order, or a minute of the court, including any record of the reasons given by a

1      See ‘Negligent’ builder fined in long-running dispute over unfinished home | Stuff.co.nz

Judge”. It also includes the register of documents filed in the proceeding.2 Thus, these are documents to which Mr Hunt may have access without permission from the Court. To obtain such documents, r 10(1) requires Mr Hunt to ask the Registrar “for access to 1 or more documents”. If necessary, to first understand what documents are available, Mr Hunt can request the register of documents filed in the proceeding.

[3]    Given Mr Hunt’s request for “all court documents including pleadings and affidavits”, it is necessary to consider whether I should allow him access to other documents on the file under r 11.

1. Rule 11(2) requires that a request for access to court documents:

(a)identify the person making the request and their address;

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

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

(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).

[5]    Rule 11(3) requires the Registrar to promptly give a copy of the request to the parties or their lawyers, although under r 11(4), this may be dispensed with by a Judge if it is impractical to require notice to be served.

2      Fuji Xerox New Zealand Limited v Whittaker [2018] NZHC 1043 at [11]–[13].

[6]    Rule 11(8) provides that a Judge may refuse a request for access under r 11 solely for the reason that the request does not comply with subcls (a) to (d) (as set out above).

[7]    In determining a request for access under r 11, a Judge must consider all the factors set out in r 12.

[8]    Rule 13 provides that when applying r 12, a Judge must have regard to the stage a proceeding has reached. Rule 13 provides that before the substantive hearing, the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited. During the substantive hearing stage, open justice has greater weight. After the hearing, open justice has greater weight in relation to documents that have been relied on in a determination, but the protection of confidentiality and privacy interests have greater weight than would be the case during the substantive hearing.

Parties’ views

[9]    In accordance with r 11(3), the Registrar has contacted the parties to this proceeding to inform them of Mr Hunt’s request and seek their views. The plaintiffs and the seventh defendant have no objection to the application. The fourth defendant, Sigma Consulting Engineers Limited, has filed a memorandum, which is supported by the fifteenth and sixteenth defendants. No response has been received from the remaining parties to the litigation.

[10]The fourth defendant’s memorandum provides:

The fourth defendant, Sigma Consulting Engineers Limited (Sigma), wants to make certain observations about the Application but will otherwise abide the Court’s decision.

By the Application, Mr Hunt requests access to, “All relevant court documents including pleadings and affidavits.” A properly formed application should not be broadly cast and vague3 and applications simply requesting access to the court file may be refused.4 Counsel assumes that [the] Application is limited to the formal pleadings filed by the parties in this proceeding.

3      Schenker AG v Commerce Commission [2013] NZCA 114, [2015] NZAR 1561, (2013) 22 PRNZ 286, at [33].

4      Korea Deposit Insurance Corporation v Huh [2020] NZHC 2589.

Mr Hunt has also not identified any public interest element which might be important for the Court in considering whether to grant access and the balancing exercise required under Rule 12 of the Senior Courts (Access to Court Documents) Rules 2017. Mr Hunt simply says, “This is a story I have written about for Stuff a number of times and intend to follow these stories up”. Counsel anticipates that, if requested, Mr Hunt may be in a position to provide further clarification as to the basis for his request such that the Court can properly undertake the balancing exercise required.

Discussion

[11]   As already noted, Mr Hunt seeks “all relevant court documents including pleadings and affidavits”. There are a number of pleadings on the court file for this proceeding. There are also several affidavits. As a result, it remains unclear which specific documents Mr Hunt seeks. In this respect, I have some sympathy for the fourth defendant’s position that Mr Hunt’s request is insufficiently particularised.

[12]   The lack of specificity in Mr Hunt’s request means that, pursuant to r 11(8), I decline his request at this time. However, should Mr Hunt wish to make a further application at a later date, and fully particularise it, he may do so. As noted above, it may be of assistance to Mr Hunt to approach the Registrar in the first instance, as contemplated by r 10(1), to consider the register of documents.

[13]   Given my decision, I do not need to assess the adequacy of the description of the purpose of Mr Hunt’s request. I do however note that in Fuji Xerox New Zealand Limited, Jagose J made the helpful observation 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 given for, the request” in terms of the relevant factors set out in r 12 and the relevant countervailing factors in r 13.

Result

[14]Application dismissed.

McQueen J