Wanaka Stakeholders Group Incorporated v Queenstown Lakes District Council

[2020] NZHC 135

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2019-425-000112

[2020] NZHC 135

UNDER

the Judicial Review Procedure Act 2016

BETWEEN

WANAKA STAKEHOLDERS GROUP INCORPORATED

Applicant

AND

QUEENSTOWN LAKES DISTRICT COUNCIL

First Respondent

AND

QUEENSTOWN AIRPORT CORPORATION LIMITED

Second Respondent

Appearances:	J G Miles QC, R J Hollyman QC and B R Latimour for Applicant M Jagusch for First Respondent C J Curran for Second Respondent M Price (Otago Daily Times) Applicant for Access
Judgment	11 February 2020
(Determined on the papers)

JUDGMENT OF OSBORNE J

[access to court documents]

Application for access

[1]    Mark Price of the Otago Daily Times has applied for access to the Statement of Claim in this proceeding. The application is not opposed by the respondents, who have both recorded through counsel that they will abide the Court’s decision. The application is supported by the applicant (Wanaka Stakeholders Group Inc –

WANAKA STAKEHOLDERS GROUP INCORPORATED v QUEENSTOWN LAKES DISTRICT COUNCIL [2020] NZHC 135 [11 February 2020]

“Wanaka”) in the proceeding.1 For Wanaka, counsel have explained that Wanaka’s support arises largely because the proceeding involves a matter of significant public interest, namely the actions of public authorities affecting a significant population. Counsel submit that it is important that there be accurate reporting.

[2]    In the proceeding, being an application for judicial review, Wanaka seeks declarations and orders relating to commercial arrangements for the development, expansion and operation of Wanaka Airport as a dual airport with Queenstown.

[3]Counsel for Wanaka note the following particular matters:

(a)There is substantial, ongoing public interest in the proceeding.

(b)The decisions under review are decisions of the Queenstown Lakes District Council and its trading subsidiary (Queenstown Airport Corporation).

(c)The decisions relate to the establishment of a jet-capable airport at Wanaka with the potential to be larger than Queenstown Airport and (it is alleged) the alienation of public land in breach of the Local Government Act 2002.

(d)The establishment of such an airport will have a significant and direct impact on the populations of the Wanaka, Clutha and Queenstown basins, also affecting broader populations in surrounding areas.

(e)The respondents continue to implement public processes which depend upon, and reconfirm, the decisions under challenge and the content of the proceedings as relevant to those processes.

(f)The issues are complex and it is important that there be accurate reporting of those issues.

1      The word “Wanaka” appears in this judgment thus deliberately rather than “Wānaka” as used by the Applicant in its documents. The Register of Incorporated Societies records that the Society’s name remains registered without a macron.

(g)There has already been reporting of this proceeding and there is ongoing interest in it.

(h)Counsel submit that access to pleadings in the court file will permit correct reporting of the issues and the positions being taken by the parties and will reduce the risk of misreporting and speculation.

(i)As the proceeding is a judicial review of public bodies exercising public powers, no issues of protecting individual or private information arise.

(j)The respondents’ responses to the allegations are available as they have filed Statements of Defence.

Procedure

[4]    This application for access is brought under r 11 Senior Courts (Access to Court Documents) Rules 2017.

[5]    Mr Price has for the most part complied with the requirements of r 11(2) in that:

(a)he has identified himself and his address (r 11(2)(a));

(b)he has identified the document he seeks access to (r 11(2)(b)); and

(c)he does not propose any conditions of access (r 11(2)(d)).

[6]    Mr Price has not stated his reason for seeking access to the Statement of Claim but I excuse that omission. It is to be inferred from his employment situation that he seeks the document for the purposes of informing his coverage of the proceeding.

[7]    In accordance with r 11(3), Mr Price’s request was referred to the parties. They gave the responses summarised above.

[8]    Rule 12 requires the Judge considering an application for access under r 11 to consider the nature of and the reasons given for the request and to have regard to the matters identified in r 12(a) – (h). In doing so, the Judge is required by r 13 to adopt particular approaches to the balancing of the matters referred to in r 12. Of application in this case is r 13(a) which requires that, before the substantive hearing, there may be a need to limit access to documents in the interests of the protection of confidentiality and privacy interests and the orderly and fair administration of justice.

Decision

[9]    While it is incumbent upon the Court to consider all relevant matters identified under r 12, three particular considerations most influence the outcome of Mr Price’s application:

The role of the news media

(a)The importance of the role performed by the news media in reporting proceedings is recognised and acted upon by this Court.2 This is particularly so where the proceeding concerns matters of public interest. By their nature judicial review proceedings, such as those in which regional or district councils are respondents, will frequently engage a heightened legitimate public interest.3

The parties’ disavowal of privacy concerns

(b)None of the parties raise a concern as to confidentiality of privacy interests. Wanaka as applicant (to the contrary) submits strongly in favour of full access to all pleadings.

Fully-developed pleadings

(c)Since Mr Price applied for access to the Statement of Claim, both respondents have filed their Statements of Defence. The courts

2      See, for recent instances, Lifestyles Investment Group v Coral Investments Securities Ltd [2019] NZHC 2154 at [17] and Scenic Circle Hotel Group Ltd v West Coast Regional Council [2019] NZHC 2326 at [7].

3      Scenic Circle Hotel Group Ltd v West Coast Regional Council, above n 2, at [7].

recognise that where matters are still at the pleadings stage there is an element of unfairness on parties in the publication of one side of the story.4 The Court of Appeal has in Crimson Consulting Ltd v Berry explained that position thus:5

The allegations in the statement of claim have not yet been tested by the giving of evidence. There being no hearing in court, the need for transparency and public scrutiny is less, because pre-trial the court is generally not determining substantive issues.

Consideration of r 12 matters

[10]   No party to the proceeding submits that the orderly and fair administration of justice will be adversely affected by Mr Price accessing the Statement of Claim (or other pleadings). In fact, the reverse is likely to be the case – the parties are more likely to be able to conduct their litigation against the background of fully informed but fair reporting.6

[11]Rule 12(b) is inapplicable as this is not a criminal proceeding.7

[12]   This is not a case which involves the private lives of individuals. Equally the parties do not suggest that any material found in the pleadings is commercially sensitive. Nothing of that nature in this case cuts across the principle of open justice.8

[13]   The need for protection of other confidentiality and privacy interests does not arise.9

[14]   The principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions) is a central consideration

4      Crimson Consulting Ltd v Berry [2018] NZCA 460 at [39].

5      Crimson Consulting Ltd v Berry, above n 4, at [39]. This approach was followed in Scenic Circle Hotel Group Ltd v West Coast Regional Council, above n 2, at [9] where Mander J refused a request for access to the documents filed by the plaintiff in judicial review proceedings on the basis that the second defendant had yet to file its defence.

6      Rule 12(a).

7      This rule concerns the right of a defendant in a criminal proceeding to a fair trial.

8      Rule 12(c).

9      Rule 12(d).

in this case.10 The particular matters raised by counsel for Wanaka identify for more particularised reasons why the principle of open justice is a dominant consideration here.

[15]There are no other matters which weigh against Mr Price’s request.11

[16]   I am satisfied that this is a case where neither the protection of confidentiality and privacy interests nor the orderly and fair administration of justice require that access to the Statement of Claim be limited, notwithstanding that the substantive hearing has yet to be reached (if it is).

[17]   Had Mr Price been making his application after the Statements of Defence were filed, it follows that his request for access would have included those two documents (together with Wanaka’s Replies). It is desirable that any reporting of the proceeding be informed by a knowledge of all the pleadings, not just that of the applicant.

[18]   Under r 11(7)(a)(ii) the Judge in granting a request for access may do so subject to conditions which the Judge thinks appropriate. It is appropriate in this case that Mr Price’s access, when granted, be to all pleadings, not simply the Statement of Claim.

Outcome

[19]   I grant Mark Price permission to access the Statement of Claim dated 25 October 2019, on condition that he at the same time access the pleadings subsequently filed, namely:

(a)the first respondent’s Statement of Defence;

(b)the second respondent’s Statement of Defence; and

10     Rule 12(e).

11     Rule 12(h).

(c)the applicant’s Replies to the Statements of Defence.

Osborne J

Solicitors:

Fyfe Karamaena, Wanaka Meredith Connell, Wellington Russell McVeagh, Wellington

Copy to M Price, Otago Daily Times

This judgment was delivered by me on 11 February 2020 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: