Tau v Attorney-General
[2020] NZHC 3063
•19 November 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2020-409-000534
[2020] NZHC 3063
BETWEEN RAWIRI TE MAIRE TAU
First Named First Plaintiff
AND
TIPENE GERARD O’REGAN
Second Named First Plaintiff
AND
EDWARD WELLER ELLISON
Third Named First Plaintiff
AND
DAVID THOMAS HIGGINS
Fourth Named First Plaintiff
AND
MICHAEL RICHARD SKERRETT
Fifth Named First Plaintiff
AND
DAVID TOHURANGI ELLISON
Sixth Named First Plaintiff
AND
TEWERA EDWIN KING
Seventh Named First Plaintiff
AND
RICHARD RANGI WALLACE
Eighth Named First Plaintiff
Hearing: On the papers Appearances:
J W J Graham and R M A Jones for Plaintiffs L Theron for Defendant
Judgment:
19 November 2020
JUDGMENT OF DUNNINGHAM J
TAU v ATTORNEY-GENERAL [2020] NZHC 3063 [19 November 2020]
AND JOHN ARTHUR HENRY
Ninth Named First Plaintiff
AND
ELIZABETH ROWELLYN BROWN
Tenth Named First Plaintiff
AND
FRANCOIS DENNIS TUMAHAI
Eleventh Named First Plaintiff
AND
JAMES MASON RUSSELL
Twelfth Named First Plaintiff
AND
NICHOLAS GRAHAM METZGER
Thirteenth Named First Plaintiff
AND
RANGI THEODORE BUNKER
Fourteenth Named First Plaintiff
AND
REI VEITCH SIMON
Fifteenth Named First Plaintiff
AND
TE RŪNANGA O NGĀI TAHU
Second Plaintiff
AND
ATTORNEY-GENERAL
Defendant
This judgment was delivered by me on 19 November 2020 at 3.00 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: 19 November 2020
[1] The Court is in receipt of two requests for access to copies of the pleadings in the above case pursuant to the Senior Courts (Access to Court Documents) Rules 2017 (the Rules).
[2] The first request is from the Canterbury Regional Council. It seeks both a copy of the statement of claim and any accompanying documents such as affidavits in support. The reason given is that the Council has a number of functions in respect of freshwater management. It says it wishes to view the documents filed to understand the scope of the proceedings and how any relief sought may impact on its future exercise of those functions.
[3] The other request is from Judge Thompson, who is an Environment Court Judge. The reasons for his request is framed as follows:
The pleadings are to do with the setting up of Freshwater Hearings Panels to deal with freshwater issues under the RMA. Professor Peter Skelton and I have been appointed as the first two Commissioners and we are setting up training and resource materials for the Hearings Panels which are expected to begin work in 2021. One of the most important issues in the new legislation is the concept of Te Mana o Te Wai, and Professor Skelton and I thought that the Ngai Tahu litigation might provide some very useful insights into that concept.
[4]The Crown has no objections to the application. It notes:
(a)the declarations sought in this proceeding have implications for other parties, including the parties seeking access; and
(b)there has already been a degree of media coverage of these proceedings.
[5] The plaintiffs, however, oppose all requests for access at this stage. The reasons given, are in summary:
(a)the courts are cautious about requests for access to documents before the substantive hearing, and while the pleadings are unsettled and/or not responded to by the defendant;
(b)the reasons advanced for the request for access are not compelling, nor are they considerations that the Court may take into account by virtue of the Rules;
(c)the plaintiffs’ claim contains extensive sacred and traditional knowledge that is precious to them. This information will be the subject of evidence that will, eventually, be delivered in open Court; and
(d)it is in the interests of the orderly and fair administration of justice to decline the request for access.
[6] In addition, the plaintiffs submit that “all current and future requests should be treated in the same way (and, respectfully, declined)” until the commencement of the substantive hearing. By implication, they expect other requests are likely, and they point out that a request from Central South Island Fish & Game Council was deferred pending receipt of Fish & Game’s response to the plaintiffs’ views.
[7] In addition, the plaintiffs say that the requests do not set out what conditions the Council, or the Judge, would be willing to consent to as required by r 11(2)(d) of the Rules. The memorandum points out that a failure to meet the r 11 requirements can result in a refusal of the request, citing Fuji Xerox New Zealand Ltd v Whittaker.1 However, in that case, the primary concern was that it did not set out the purpose for which access was sought as required by r 11(2)(c), although the Judge cited, in combination, the failure to comply with r 11(2)(a), (c) and (d).
[8] Counsel also submit that the reasons set out in the requests appear to be for consideration of “private and academic interests that are not corollaries of the plaintiffs’ claim”.
[9] In respect of the Regional Council’s request, the plaintiffs say that the reasons given carry little weight. The nature of the proceedings may well be amended by the time of the substantive hearing. Furthermore, as relief is not sought as against the Council, and it is difficult to see what benefit the Council would receive from seeing the plaintiffs’ pleadings at such an early stage. Furthermore, there are reasons which tell against disclosure at this early stage including the reference to sacred and traditional knowledge that is precious to the plaintiffs.
1 Fuji Xerox New Zealand Ltd v Whittaker [2018] NZHC 1043, (2018) 25 PRNZ 119.
[10] In respect of the request by Judge Thompson, counsel observe that this appears to be made in his capacity as a Commissioner for Freshwater Hearings Panels rather than on behalf of the Environment Court. It also appears to proceed on an incorrect assumption which is that the pleadings are to do with setting up a Freshwater Hearings Panels. Again the plaintiffs say the reason for the request lacks cogency.
Discussion
[11] Access to Court documents is controlled by the Rules. Where, as here, the requestor has no general right to access the documents, it must obtain the Court’s permission. Under r 11(2) the person asking to access any document must provide:
“[a] written form of request that:
(a)identifies the person and gives the person’s address; and
(b)sets out sufficient particulars of the document to enable the Registrar to identify it; and
(c)gives reasons for asking to access the document, which must set out the purpose for which the access is sought; and
(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).
[12] The plaintiffs suggest that all current and future requests should be treated in the same way and declined until the commencement of the substantive hearing. I am not prepared to do that. Each request should be assessed on its merits taking into account the reason for the request, and, any conditions that the requestor may wish to propose on the access to those documents.
[13] I do not think the failure to set out any conditions of the right of access is fatal to the request. Rule 11(2)(d) only requires the requestor to set out conditions that they propose. It is not mandatory to provide such conditions, although that would be helpful if its anticipated that a condition as to, for example, confidentiality, would address any concern that the parties to the litigation might have.
[14] In the present case, I simply consider the requests on their merits and taking into account both the reasons for the request and the plaintiffs’ objections.
The Regional Council’s request
[15] In respect of the Regional Council’s request, I agree that there would be little, if any, value to the Council by viewing the documents at this stage in the proceedings. The relief sought does not relate to the Council and it may change as the proceedings progress. The proceedings do not affect the statutory framework in which the Council currently operates. In the circumstances, I can see no real benefit to the Council in seeing the pleadings at the current stage. Against that, I factor in the plaintiffs’ concerns that there is evidence contained in the statement of claim, and in particular in the annexed schedule, which it would not wish to freely share in forums other than the Court hearing itself.
[16]For these reasons, the application is declined.
The Environment Court Judge’s request
[17] The reasons for the Judge seeking access assumes that the application is relevant to the setting up of Freshwater Hearings Panels. That is not correct. Furthermore, the potential impact for Freshwater Hearings Panels of this litigation will only be known after a lengthy process in which the pleadings may change and where the plaintiffs may or may not be successful. It is difficult to see how any cogent understanding of how these pleadings could affect the Freshwater Hearings Panels could be gleaned from the pleadings in their current state. In addition, as for the Council, the pleadings contain sensitive information that the plaintiffs do not want distributed in an uncontrolled way. Again, in my view, the reasons given do not warrant disclosure of the proceedings at this point in time.
[18] Accordingly, the requests for access to the pleadings are declined. They can be revisited if the request is renewed prior to the substantive phase of the litigation.
Solicitors:
Chapman Tripp, Christchurch