X v Attorney-General

[2024] NZHC 1723

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF PERSONS, SHIPS, AND NAVAL BASES, INCLUDING RANKS AND QUALIFICATIONS, AS OUTLINED AT PARAGRAPH [2] OF THIS JUDGMENT.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2015-485-467

[2024] NZHC 1723

BETWEEN

X

Plaintiff

AND

THE ATTORNEY-GENERAL OF NEW ZEALAND

First Defendant

AND

THE MINISTRY OF DEFENCE (UNITED KINGDOM)

Second Defendant

On the Papers
Judgment:	27 June 2024

JUDGMENT OF ISAC J

[Access to Court documents]

Introduction

[1]    Frontline Law Ltd, a firm of solicitors, seeks access to court documents on behalf of a client. The proceeding in which the documents are held is X v Attorney-General.1 The purpose of the request is to “assess the similarities” between the firm’s client’s case, and the case of X. The applicant seeks access to the entire Court file, including:

1      X v Attorney General [2017] 3 NZLR 115; [2017] NZHC 768.

X v ATTORNEY-GENERAL & ANOR [2024] NZHC 1723 [27 June 2024]

(a)all pleadings filed;

(b)all interlocutory applications;

(c)all rulings;

(d)all affidavits; and

(e)all evidence before the Court.

[2]    The proceedings in X were ultimately settled before trial, and Doogue J made wide-ranging suppression orders at the request of the parties. Those orders suppressed the following information:2

(a)the names and ranks of the other female NZDF Officers that served on the same ships as the plaintiff;

(b)the names, ranks and roles of any current or past members of the Royal Navy named in the pleadings or mentioned in court;

(c)the names of the ships on which the plaintiff served abroad in the United Kingdom;

(d)the names and locations of the naval bases at which the plaintiff was based and/or accommodated; and

(e)the qualifications the plaintiff obtained or sought to obtain prior to and while serving in the Royal New Zealand Navy that relate to her United Kingdom experience, subject to the exception that the plaintiff may refer to the qualification she has obtained for the purposes of an application for employment or career advice;

[3]The reasons for making these orders were:3

2      X v Attorney-General [2019] NZHC 2136 at [7].

3 At [6].

(a)the allegations in the statement of claim had not been the subject of evidence, argument or submission and the Court had not (and would not) make findings on those allegations;

(b)identification of Royal Navy bases, ships, locations and times may identify the individuals within the Royal Navy who had been named as alleged perpetrators of alleged acts in this proceeding or might cast undue suspicion on other persons who had not been named;

(c)suppression of the names of the other female NZDF Officers that served on the same ships as the Plaintiff was necessary to protect their privacy and because identification of those Officers would identify the Royal Navy ships that were sought to be suppressed by the Second Defendant (and therefore identify the alleged perpetrators or cast undue suspicion on other persons);

(d)none of the particulars sought to be suppressed were central to understanding the nature of the proceeding and, given the matter was at an end, were not something that a court would make findings on. The permanence in this case was also to protect important state interests.

[4]    Against that backdrop, the application is opposed both by the first defendant, the Attorney-General, and the plaintiff.4

Applicable principles

[5]    The Senior Courts (Access to Court Documents) Rules 2017 set out a framework for making access applications and for decisions granting or declining them. The Court of Appeal summarised the framework in Crimson Consulting Ltd v Berry in the following terms:5

[11]              Under the Rules every person has a right to access the formal record relating to a civil proceeding and to certain specified documents in criminal

4      Counsel for the second plaintiff in the proceeding were contacted in relation to this application but advised they were unable to obtain instructions and were therefore unable to reply on behalf of the second plaintiff.

5      Crimson Consulting Ltd v Berry [2018] NZCA 460; [2019] NZAR 30. Footnotes omitted.

proceedings. The formal court record in civil proceedings is defined in r 4 and includes judgments, orders and minutes, but does not include pleadings or affidavits. It does not include the documents that NZME and the NBR wish to access.

[12]              Access to documents that do not fall under the general right to access can be sought by any person by a written request to the Registry. There are certain matters which must be specified, including the reasons for asking for access to the document. The Registrar must give a copy of the request to the parties to the relevant proceeding and parties who wish to object must give written notice of that objection to the Registrar, setting out the grounds of objection. It is an informal procedure. The application is then put before a judge. The judge may grant or refuse a request or may grant a request subject to conditions. Alternatively, the judge may refer the request to a Registrar for determination by that Registrar.

[13]              …[U]nder r 12 the judge “must consider the nature of, and the reasons for, the request” and take into account each of the matters set out that is relevant to the request or any objection to the request. Those matters are:

(a)the orderly and fair administration of justice:

(b)the right of a defendant in a criminal proceeding to a fair trial:

(c)the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice:

(d)the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person:

(e)the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions):

(f)the freedom to seek, receive, and impart information:

(g)whether a document to which the request relates is subject to any restriction under rule 7:

(h)any other matter that the Judge thinks appropriate.

[6]    Under the Rules, there are three different approaches to the balancing process under r 12 depending on the stage the proceeding is at. Those stages, and the respective approaches, are set out in rule 13:

13 Approach to balancing matters considered

In applying rule 12, the Judge must have regard to the following:

(a)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:

(b)during the substantive hearing, open justice has—

(i)greater weight than at other stages of the proceeding; and

(ii)greater weight in relation to documents relied on in the hearing than other documents:

(c)after the substantive hearing,—

(i)open justice has greater weight in relation to documents that have been relied on in a determination than other documents; but

(ii)the protection of confidentiality and privacy interests has greater weight than would be the case during the substantive hearing.

[7]    As the Court observed, there is no presumption in favour of disclosure, and there is no hierarchy in terms of the r 12 factors. The balancing exercise envisaged requires consideration in the context of both the particular proceeding and the application. In Berry, the proceedings had been settled prior to judgment and media sought access to the Court file. At first instance the High Court granted access, but to redacted versions of the pleadings. It declined the request so far as it related to evidence and memoranda. The appeal was dismissed. In considering the relevant r 12 factors, the Court noted that principles of open justice and freedom of expression reflected in rr 12(e) and (f) had to be balanced against the orderly and fair administration of justice and the right of litigants to privacy in rr 12(a) and (c):6

[35]      We have already quoted r 12(c), which specifically sets out the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice, as a factor to be taken into account. This can be seen as giving particular emphasis to protecting the privacy of civil disputes between individuals.

[36]      Rule 12(a) refers to the orderly and fair administration of justice. The orderly and fair administration of justice in this context gives focus to the undesirability of interfering with access to justice through the courts by discouraging the filing of proceedings because of the fear of damaging or

6      Crimson Consulting Ltd v Berry, above n 3, at [35]–[37]. Footnotes omitted.

embarrassing publicity. These were civil proceedings arising from a dispute which, while involving a company, was about a private contract. The orderly and fair administration of justice (in this context, fair access to the courts in civil disputes) and the right to privacy were engaged. However they were not engaged to the extent set out in Rice v Heaney QC where there was a dispute between former professional partners, and the Court held it was essentially a private dispute involving private and sensitive information.

[37]      Thus the principle of open justice (r 12(e)) and the right to receive information (r 12(f)) must be balanced against the orderly and fair administration of justice (r 12(a)) and right to privacy (r 12(c)).

Consideration

[8]    The purpose of the access request is to enable the applicant to “assess the similarities” between their case and that of X. The application does not identify the purpose of the proposed assessment, or why it is necessary.

[9] The scope application could not be broader, in that it seeks access to the “Court file”, including the documents noted above at [1]. No reference is made to the suppression orders attaching to the file or the information already available to the applicant about the nature of the proceedings and issues in X through the judgments of the High Court, Court of Appeal and Supreme Court.7

[10]   As the proceeding has been discontinued it falls to be considered under r 13(c), where open justice has greater weight in relation to documents that have been relied on in a determination than other documents, but protection of confidentiality and privacy interests have greater weight than would be the case during the substantive hearing.

[11]The relevant r 12 factors to be considered are:

(a)the orderly and fair administration of justice (r 12(a));

(b)the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or

7      X v Attorney General [2017] above n 1; Young v Attorney-General [2018] 3 NZLR 827; [2018] NZCA 307; Young v Attorney-General [2019] NZSC 23.

matters that are commercially sensitive, than is necessary to satisfy the principle of open justice (r 12(c));

(c)the protection of confidentiality and privacy interests (rr 12(c) and (d));

(d)the principle of open justice (r 12(e)); and

(e)the freedom to seek, receive and impart information (r 12 (f)).

[12]   It is evident from the previous judgments in this proceeding that its subject matter is very sensitive. As the claim has been settled, the merits of the underlying allegations have not been determined, or made public. In addition, the evidence to which the applicant seeks access includes sensitive personal information relating to the plaintiff and references to individuals other than those named in the pleadings, as well as confidential minutes and correspondence between the plaintiff and members of the Royal Navy.

[13]   In this case, protection of privacy, the right to bring and defend proceedings without disclosure of any more information than is necessary, and the orderly and fair administration of justice are the primary considerations. As the Court of Appeal noted in Berry, the orderly and fair administration of justice in this context gives focus to the undesirability of interfering with access to justice through the courts by discouraging the filing of proceedings because of the fear of damaging or embarrassing publicity, and the risk that confidentiality sought by parties as part of a settlement might otherwise be undermined. I am also reinforced in this conclusion given r 13(c) makes it clear that protection of confidentiality and privacy interests have greater weight at this stage of the proceeding.

[14]Further relevant considerations under r 12(h) in my view are:

(a)Providing access to documents without breaching the suppression orders will be difficult. Even if redactions could be accommodated, it may limit any benefit of access;

(b)The administrative burden on the Court supervising the redaction process and compliance with the suppression orders is also onerous and disproportionate to the benefit to be derived from access;8

(c)Before access to evidence and pleadings could be granted, it would be likely that notification to any individual named in the evidence and pleadings would be required under r 14(b). Given the suppression orders, this again places a significant burden on the Court and the parties, and will result in anxiety and cost for individuals and parties who reasonably understand the proceedings have been resolved on a confidential basis.

[15]   Finally, I have regard to the purpose of the request. It is to assist an intending plaintiff assess the similarities of her case to that brought by X. There is no indication why this assessment is required, or why it cannot be carried out based on the information concerning X’s alleged claims as recorded in previous judgments. More fundamentally, I consider there is limited public interest in access to court documents to enable solicitors to advise a client on the similarities their case may have to one that has not been heard or determined. Accordingly, I place little weight on the principle of open justice and freedom of expression given the purpose of the access request in this case.

[16]Overall, the relevant r 12 factors clearly favour declining the application.

Conclusion and result

[17]   To the extent the application is brought under r 11, for the foregoing reasons it is declined.

[18]   However, I note the request is also made under r 8(1). That rule provides access as of right to the formal court record. Subject to strict compliance with the requirements of the suppression orders made in this proceeding, to the extent the

8      Pilgrim v Attorney-General [2023] NZEmp 84 at [10].

application is brought under r 8 there is a right of access which does not depend on a determination of the Court.

Isac J

Solicitors:

Frontline Law, Wellington for Applicant

Crown Law Office, Wellington for First Defendant Brown & Bates, Napier for Plaintiff