Timaru District Council v Minister of Local Government

[2023] NZHC 659

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-641

[2023] NZHC 659

IN THE MATTER OF

an application for declarations under the common law and/or the Declaratory Judgments Act 1908

AND IN THE MATTER OF

the rights and democratic governance role of local government in New Zealand

BETWEEN

TIMARU DISTRICT COUNCIL

First Plaintiff

WHANGĀREI DISTRICT COUNCIL
Second Plaintiff

WAIMAKARIRI DISTRICT COUNCIL

Third Plaintiff

AND

THE MINISTER OF LOCAL GOVERNMENT

First Defendant

THE SECRETARY FOR LOCAL GOVERNMENT

Second Defendant

On the Papers

Counsel:

J E Hodder KC, B K McLay and D T Haradasa for Plaintiffs

M G Colson KC, B A Davies and B T Haddleton for Defendants F Brailsford, requesting access to Court documents

Judgment:

29 March 2023

JUDGMENT OF GWYN J

(Request for access to Court documents)

TIMARU DISTRICT COUNCIL v THE MINISTER OF LOCAL GOVERNMENT [2023] NZHC 659

[29 March 2023]

Introduction

[1]                 A non-party, Feroze Brailsford of Cooper Legal, has requested access to the Court file in this proceeding. The request was made on 22 March 2023.

[2]                 The request is made under the Senior Courts (Access to Court Documents) Rules 2017 (Rules), although it does not specify the particular Rule(s) on which it relies. As required by r 11(3), the Registrar gave a copy of the request to the parties in this proceeding. Counsel for the plaintiffs oppose the application, noting:

The reason given by the applicant law firm is “to assist our understanding of the Court’s approach to declaratory judgment applications”. The plaintiffs’ position is the judgment speaks for itself on that point.

[3]Counsel for the defendants do not oppose the application.

[4]                 The request and the responses of the parties were referred to me this week, as Duty Judge.

[5]                 The applicant requests access to the “whole court file” in this proceeding. The reason stated for requesting access is “assist understanding of judgment/Declaratory Judgment Act 2008”.

Application of the Rules to the request

[6]                 I refuse the request. In summary, that is because the Rules require a person requesting access to ask for particular documents. The applicant instead has requested access to the “whole court file”. The Rules do not permit a request in such broadly framed terms.

[7]                 In relation to a civil proceeding, the general right of access of the public to court files is provided under r 8(1). This rule grants every person the right to access the “formal court record” relating to a civil proceeding. The formal court record is defined in r 4 and includes: “a register or an index”. The “register or index” is a

reference to the “Register of Documents Filed” that the Court keeps for each civil proceeding.1

[8]                 Under r 10(1) a person may exercise the r 8 general right of access by asking the Registrar “for access to 1 or more documents”. As Campbell J concluded in Korea Deposit Insurance Corp v Jae Ho Huh,2 it is plain from this rule that a person requesting access must identify the document(s) requested. That is of particular significance in a case such as this where the whole Court file is very extensive, comprising thousands of pages.

[9]                 Rule 8(1) does not confirm a right on a person to access the “whole court file”, as sought by Feroze Brailsford. The applicant may, under r 8(1), access the formal court record. In order to do so, the applicant should ask the Registrar under r 10(1) for particular documents. If the applicant does not already know the details of the documents sought, those details can be obtained by first accessing the “Register of Documents Filed”. That will enable the applicant to identify any other documents to which there may be a general right of access under r 8(1) and request access to them under r 10(1).

[10]              Where there is not a general right of access to a document under r 8, an applicant may request access under r 11. The request must be in writing and must set out “sufficient particulars of the document to enable the Registrar to identify it.”3 The applicant’s request does not do this. It is a blanket request. Rule 11 does not permit such a broadly expressed request.

[11]              Rule 11(2)(c) also requires that a person seeking access under r 11 must give reasons for asking to access the document(s), which must set out the purpose for which the access is sought. In Schenker AG and Schenker (NZ) Ltd v Commerce Commission,4 the Court of Appeal upheld a High Court decision declining an application for access to the Court file, in part on the basis that the reasons advanced

1      Fuji Xerox New Zealand Limited v Whittaker [2018] NZHC 1043 at [11].

2      Korea Deposit Insurance Corp v Jae Ho Huh [2020] NZHC 2589 at [7].

3      Rules, r 11(2)(b).

4      Schenker AG and Schenker (NZ) Ltd v Commerce Commission [2013] NZCA 114 at [33].

for access “were broadly cast and vague”. The same could be said of the current application. Any further application, under r 11, should be more specific.

Summary

[12]              Although I refuse this request, the applicant remains free to exercise the general right of access to the formal court record, which does not require a written request and to make a new, compliant, request under r 11.

Gwyn J