Suveinakama v Council for the Ongoing Government of Tokelau [2017] NZHC 3287 (21 December 2017)

Last Updated: 21 February 2018

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2017-485-797 [2017] NZHC 3287

BETWEEN	JOVILISI SUVEINAKAMA First Plaintiff
	HETO PUKA Second Plaintiff
AND	COUNCIL FOR THE ONGOING GOVERNMENT OF TOKELAU First Defendant
	ULU O TOKELAU Second Defendant
	ADMINISTRATOR OF TOKELAU Third Defendant

Hearing:	On the papers
Judgment:	21 December 2017

_{JUDGMENT OF CULL J}

[1] On 4 October 2017, Mackenzie Smith of Radio New Zealand Pacific applied to search this file. Radio New Zealand seeks access to a number of exhibits attached to affidavits filed by the plaintiffs in the proceeding as there is public interest in the case. The documents include:

(a) numerous official documents of the Tokelau government, some but not all of which are publicly available;

(b) correspondence between the plaintiffs and their lawyers, the Tokelau

_{Public Service Commissioner (the Commissioner), the third defendant}

SUVEINAKAMA v COUNSEL FOR THE ONGOING GOVERNMENT OF TOKELAU [2017] NZHC 3287 [21 December 2017]

		and others concerning the Commissioner’s investigation into alleged misconduct;
	(c)	statements made by the plaintiffs to the Commissioner’s investigation and questions in respect of those statements;
	(d)	the plaintiffs’ employment contracts;
	(e)	a consultancy report into the governance of Tokelau capital purchases
		and the terms of reference for that report; and
	(f)	media coverage of controversy over Tokelau capital purchases.
[2]	The	proceeding seeks declaratory and other relief against a current

investigation by the Commissioner into certain actions of the plaintiffs, who are senior Tokelau public servants. The investigation and the plaintiffs’ suspension from duty during the investigation are said to be unjustified, unlawful and contrary to procedural fairness. The first defendant is the Council for the Ongoing Government of Tokelau (the Council) and the second defendant is Ulu O Tokelau, the head of the Government of Tokelau and the Government’s representative on the General Fono and the Council.

[3] The plaintiffs do not oppose Radio New Zealand’s access to the court file, however, the defendants do. The defendants oppose the application on the basis that although there may be public interest in the proceeding, access should not be granted at such an early stage in the proceeding or in respect of the particular material sort. The defendants submit:

(a) the proceeding is at a preliminary stage, with evidence filed only by the plaintiffs, such that the content of the material proposed to be accessed is potentially unbalanced;

(b) the documents sought include substantial material relating to the plaintiffs’ official duties and are subject to contractual obligations of confidentiality; and

(c) the documents relate to an ongoing investigation by the Commissioner and so public disclosure of correspondence and statements on matters of contention within that investigation would risk the orderly and fair conclusion of that process.

Jurisdiction

[4] This proceeding is brought before the Court sitting as the High Court of Tokelau under s 3 of the Tokelau Amendment Act 1986. The Amendment Act is to be read alongside the Tokelau Act 1948.¹ Under those Acts, the law of Tokelau comprises:²

(a) rules made by the Tokelau General Fono;

(b) regulations made by the Governor-General in respect of Tokelau;

(c) English common law except to the extent that it is excluded by any enactment or inapplicable to the circumstances of Tokelau; and

(d) New Zealand statutes only if the New Zealand statutes expressly provide for this.

[5] The Crimes, Procedure and Evidence Rules 2003 (Tok), as amended, provide for matters of civil procedure. However, they do not specifically address the issue of access to court documents. Section 175 of those Rules does, however, provide:

175 Discretionary orders

Where a matter of procedure or evidence is not provided for in these rules the judge shall make such order as the judge thinks best in the circumstances of the case to promote justice.

_{[6] This must be the guiding principle in determining the present application.}

¹ Tokelau Amendment Act 1986, s 1(1).

² Tokelau Act 1948, ss 3A, 4, 4B and 6.

[7] Section 3(2) of the Tokelau Amendment Act provides that the jurisdiction of this Court to administer the law of Tokelau is, subject to any applicable Tokelau rules and regulations, to be exercised in the same manner in all respects as if Tokelau was for all purposes part of New Zealand. In Sam v The Council for the Ongoing Government of Tokelau, Associate Judge Gendall held that in relation to civil procedure under the High Court Rules, s 3(2) of the Amendment Act enabled the High Court’s jurisdiction to be exercised in the same manner as it ordinarily would (applying its own rules of civil procedure) to the extent they are not inconsistent with any rules prescribed by the General Fono, including the Crimes, Procedure and Evidence Rules.³

[8] Ordinarily, access by non-parties to court records in New Zealand proceedings is governed by the Senior Courts (Access to Court Documents) Rules 2017 (the Rules), which are made under the Senior Courts Act 2016. The Rules apply to the High Court and documents while they are in the custody and control of the Court.⁴ The “High Court” is defined in s 4 of the Senior Courts Act as being “the High Court of New Zealand”. Consequently, this statutory scheme does not expressly apply in the present proceedings when this Court is sitting as the High Court of Tokelau.⁵

[9] However, although the Crimes, Procedure and Evidence Rules of Tokelau does not provide for rules in relation to the access of court documents, I consider Gendall AJ’s approach in the exercise of the High Court’s jurisdiction is appropriate. Further the principle of promoting justice in s 175 of the Tokelau rules is not contrary to, and is in fact aligned with, the Senior Courts (Access to Court Documents) Rules (Senior Courts Rules). The documents sought in the present application are in the custody of this Court and it is appropriate to apply the Rules here (to the extent they are not inconsistent).

[10] Rule 12 of the Senior Courts Rules provides mandatory considerations in determining applications for access to court information, including:

(a) the orderly and fair administration of justice:

_...

³ Sam v The Council for the Ongoing Government of Tokelau [2012] NZHC 2775 at [6]–[9].

⁴ Senior Courts (Access to Court Documents) Rules 2017, r 3(1).

⁵ Tokelau Act 1947, s 6.

(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:

...

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

[11] Further, r 13 of the Senior Courts Rules specifies that in applying r 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...

Decision

[12] The starting point, for an application such as this is the principle of open justice. However, in this case there are three reasons to withhold the information sought.

[13] First and foremost, the proceeding is only in the preliminary stages and the evidence sought has not yet been read or tested in open court. This may not be the evidence relied on at the substantive hearing. Access to the partial evidential records on the court file at this juncture could give a misleading impression of the facts and positions involved in the proceeding. The importance of public scrutiny is less, when the full facts are not yet known, and when the Court has not yet heard or resolved the dispute.

[14] Secondly, a number of the documents sought are confidential or privileged. As the defendants submit, a number of the documents relate to matters internal to the Tokelau government and the plaintiffs are subject to a contractual obligation of confidentiality. As such, the plaintiffs may not disclose Tokelau government

information other than in the course of their duties. There is also commercially sensitive information related to commercial transactions the government has engaged in. Further, some of the documents relate to correspondence to and from the plaintiffs’ lawyers, which would be legally privileged. I consider the confidential and sensitive nature of this material is a good reason to withhold it, particularly at the early stages of the proceeding. The freedom to seek and receive information must be balanced against the public interest in protecting confidential information.

[15] Finally, a significant number of the documents relate to matters of contention which form part of the Commissioner’s ongoing investigation. The disclosure of this material may well distract from and potentially undermine the integrity of the Commissioner’s investigative process, which has significant implications for the plaintiffs and their employment. This would be directly contrary to the principle of promoting justice.

[16] Balancing all of the relevant concerns, I consider that the promotion of justice does not require access to the court file at this early stage. I note that a one day hearing has been directed by Thomas J, for 8 March 2018.⁶ This matter can be reassessed at the time.

Result

[17] The application is declined.

Cull J

Solicitors: Morrison Kent

Wallwork Lamb Lawyers

⁶ Suveinakama v Council for the Ongoing Government of Tokelau [2017] NZHC 3171 at [55].