Rosebud Corporate Trustee Limited v Bublitz

[2022] NZHC 2262

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2013-404-899

[2022] NZHC 2262

BETWEEN

ROSEBUD CORPORATE TRUSTEE LIMITED
Plaintiff

AND

PAUL NEVILLE BUBLITZ

First Defendant

CHRISTOPHER GIL COOK
Second Defendant

HUNTER GILLS ROAD LIMITED

(In liquidation) Third Defendant

Hearing:	On the papers
Judgment:	6 September 2022

JUDGMENT OF WYLIE J

[Application for access to Court documents]

This judgment was delivered by me on Tuesday,6 September 2022 at 4:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Beca & Co (R Beca), Auckland for First and Second Defendants Counsel:  JK Goodall, Auckland for First and Second Defendants

ROSEBUD CORPORATE TRUSTEE LIMITED v BUBLITZ [2022] NZHC 2262 [6 September 2022]

The application

[1]    In June 2021 the Deputy Solicitor-General made application seeking to access the Court file in this proceeding. She sought copies of all affirmations, written submissions, transcripts of evidence and documentary evidence filed or produced in the course of the trial in order to assist with a request for mutual assistance made by the Hong Kong Department of Justice.

[2]    In error, the application was not initially referred to a Judge. When nothing happened, it was followed up by Crown Law, initially on 29 June 2021 and then again on 25 January 2022.

[3]    On 25 January 2022 the then acting team leader for the frontline team in the Registry responded to the email from Crown Law and apologised for the delay in referring the matter to a Judge. However, for some reason, the application was still not referred to a Judge. It was only put before a Judge on 16 June 2022 – one year and one day after it had been filed. The Judge – Toogood J – issued a minute on the following day, 17 June 2022, referring the matter to me because I was the trial Judge in the substantive proceedings.

[4]    I received the file on 21 June 2022. On the same day I sent a minute to  Crown Law apologising to the Deputy Solicitor-General and to the Hong Kong Department of Justice for the delay. I had also perused the application and I requested clarification in relation to some matters. Crown Law responded on 28 June 2022. After considering Crown Law’s response, I sent a further minute to Crown Law seeking additional clarification in relation to some  issues  on  29  June  2022.  Crown Law responded on 29 July 2022.

[5]    I considered the matters raised by Crown Law, and issued a further minute on 5 August 2022, inter alia directing that the application be forwarded by the Registrar to the parties and/or their lawyers. To give Crown Law the opportunity to challenge my decision requiring service on the parties or their lawyers, the operation of my order was suspended for a period. No challenge was lodged and the application and supporting papers and minutes were sent by the Registrar to the parties on 18 August 2022. The 10 working day period within which I requested the parties and/or their

lawyers to respond has now expired. One response has been received on behalf of the first and second defendants. No other party has taken any steps.

Analysis

[6]    The Deputy Solicitor-General advises that, in August 2020, the authorities in Hong Kong, acting under instruction from the Central People’s Government of the People’s Republic of China, suspended an agreement which was previously in place between the Hong Kong Special Administrative Region of the People’s Republic of China and the Government of New Zealand concerning mutual legal assistance in criminal matters. As a result, the request made by the Hong Kong Department of Justice for mutual assistance in relation to the documents sought was issued in reliance on the United Nations Convention against Transnational Organised Crime. The Deputy Solicitor-General considered and approved the application as a request from a convention country under s 24(1)(b) of the Mutual Assistance in Criminal Matters Act 1992 (the Act). I was advised that the Deputy Solicitor-General only approves requests for mutual assistance after satisfying herself that they sufficiently comply with the formal requirements of the Act and any other applicable requirements, for example under an applicable convention. The Deputy Solicitor-General was so satisfied in the present case, and she advised that if necessary, she would issue a certificate to this effect under s 64 of the Act.

[7]    I do not require a certificate. I am content to rely on the confirmation given to me by the Deputy Solicitor-General.

[8]    It is common ground that the application is made under the Senior Courts (Access to Court Documents) Rules 2017. It was acknowledged that some of the documents requested may be available as of right. It was nevertheless considered more convenient to make a single request for all of the documents under r 11.

[9]    I have considered the request and the objections raised by the first and second defendants.

[10]   The first and second defendants suggest that the application is stale. I do not accept this submission. In my initial minute of 21 June 2022, I sought confirmation

from the Deputy Solicitor-General that the Hong Kong Department of Justice still wished to proceed. The Deputy Solicitor-General checked and has since confirmed that it does.

[11]   The first and second defendants also protest that the application is vague and that no good reason has been identified supporting the request for access to the documents sought.

[12]   Again, I do not accept this submission. The application explains that the documents are sought in relation to an investigation  being  undertaken  by  the  Hong Kong Police into a suspected conspiracy to defraud involving the parties to the High Court proceedings in this country. It advises that the complainants in Hong Kong are all investors in the Gills Road Village, the Albany Heights Villas, and the Albany Heights Residence projects.

[13]   In my view the purpose of the application is sufficiently clear and the documents are sought for a legitimate purpose – both a private purpose from the perspective of the complainants and a public purpose from the point of view of endeavouring to establish whether there was any fraudulent activity. I appreciate the advice from counsel for the first and second defendants that the first and second defendants have not been contacted by the Hong Kong Police and that they deny any suggestion of wrongdoing. That, however, is not the purpose of the application. The purpose of the application is simply to obtain material to further the investigation. Nor is there anything in the assertion made by the first and second defendants that the application provides no evidence or detail in support. It is sufficient for a public authority to assert that a criminal investigation is under way, without being required to provide details of the state of the investigation.

[14]   I accept the point made by counsel for the first and second defendants that the common bundle contained many documents that did not become documentary exhibits. While the defendants protest that they would be put to the cost of having to review the bundle to remove all documents that were not exhibits, in the circumstances that concern is unfounded. I have checked with the Registrar. Once the appeal period has expired, it is the Registry’s practice to either return submissions and bundles of

documents to counsel or to destroy the same. I am not sure what course was followed on the present file, but in the event, the bundle of documents produced for the hearing and counsel’s submissions are no longer on the Court file.

[15]   The documents on file are primarily the materials that were produced in the course of the hearing before me. Because the hearing was in public, I cannot see that there are any valid privacy or confidentiality concerns. Anybody interested in the matter would have been freely able to attend at the time and hear what was said in open Court. The judgment was issued without any suppression orders or restrictions on publication. I cannot see that there is any reason to withhold the affidavits and briefs filed and the transcript of evidence.

[16]   Accordingly, I direct the Registrar to make the following documents available to the Deputy Solicitor-General:

(a)The transcript of the evidence given at the hearing;

(b)The affidavits of Damien Mitchell, Sirene Millar and Prashika Chand, all filed in relation to the application for summary judgment;

(c)The affidavits filed in relation to various other interlocutory applications by Ms Millar,  the  first  defendant,  Paul  Bublitz,  Marcel Fouché, Christopher Cook and Roderick Neilsen;

(d)The briefs of evidence from Mr Bublitz, Mr Cook, Robert Foster, John Gilbert and Mr Chand;

(e)Mr Whitney’s brief of evidence (bound in the transcript at page 114); and

(f)Mr Bublitz’s brief of evidence (bound in the transcript at page 225).

[17]   A Judge is able to impose conditions under the Senior Courts (Access to Court Documents) Rules.1 I consider that it is appropriate to restrict the use of the documents to the stated purpose. Accordingly, I direct that the documents provided are only to be used for the purpose of, or in connection with, the criminal investigation to which the request relates, unless a Judge of this Court consents to their use for another purpose. I direct that Crown Law is to obtain the agreement in writing of the Hong Kong Department of Justice to this condition before the documents are released by Crown Law to the Hong Kong authorities.

Wylie J

1      Section 11(7)(a)(ii).