McCully v Whangamata Marina Society Inc CA145/06 [2006] NZCA 209; [2007] 1 NZLR 185 (11 August 2006)

Last Updated: 17 January 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA145/06

BETWEEN MURRAY MCCULLY
Appellant

AND WHANGAMATA MARINA SOCIETY INC
First Respondent

AND THE ATTORNEY-GENERAL OF NEW ZEALAND
Second Respondent

Hearing: 7 August 2006

Court: Hammond, Rodney Hansen and Ronald Young JJ

Counsel: Appellant in Person
K L Clark for the Attorney-General

Judgment: 11 August 2006 at 2.15 pm

JUDGMENT OF THE COURT

1. The appeal is allowed.
2. Mr McCully will have leave to search, inspect and copy the pleadings and affidavits on HC WN CIV-2006-485-789.

100. There will be no order for costs, save that the appellant will have his disbursements, as certified by the Registrar of the High Court at Wellington, paid by the Attorney-General.

REASONS OF THE COURT
(Given by Hammond J)

Table of Contents

Para No
Introduction [1]
Background [2]
Applications are made to search the Court file [8]
The High Court judgment [15]
The stance of the respective parties on this appeal [17]
The relevant rules [22]
Is the application under r 66(9) a discretionary one? [27]
The High Court authorities [29]
Discussion [41]
Conclusion [54]

Introduction

[1] The central issue raised by this appeal is whether the High Court erred in deciding that the appellant, who is the Member of Parliament for East Coast Bays, and the National Party’s spokesperson on conservation, lacked a “genuine or proper interest” to search a Court file containing documents relating to civil litigation reviewing a decision of the Minister for Conservation.

Background

[2] The Whangamata Marina Society sought two permits under the Resource Management Act 1991 (RMA), one to construct a 205 berth marina after dredging the basin and a channel across the harbour, the second to cover a salt marsh for development as a car park.
[3] The project would have cost an estimated $10 million. The Society, it is said, had spent over 10 years undergoing the consent process, paying substantial sums in the process.
[4] The Environment Court recommended that the Minister of Conservation grant the Society consent to go ahead with the marina as a restricted coastal activity under the RMA. The Environment Court made its recommendation after hearing various claims from local iwi, including Hauraki Maori Trust Board and Te Kupenga O Ngati Hako. The iwi had objected to the development, broadly, on the grounds that the harbour would be polluted, access to shellfish restricted, and other kaimoana destroyed.
[5] Acting under s 119 of the RMA, the Minister declined the Society’s marina proposal. That section provides:

119 Decision on application for restricted coastal activity

(1) Within 20 working days of receiving—

(a) A recommendation on an application for a coastal permit for a restricted coastal activity; or

(b) Where an inquiry by the Environment Court into that recommendation has been made, the report of the Environment Court,—

the Minister of Conservation shall make a decision on the application and give reasons for that decision. ...

The section also provides that, after considering the recommendation of the Environment Court, the Minister can “grant or refuse to grant the coastal permit” and impose any resource consent conditions (s 119(2)). Subsections (3) and (6) set out the grounds upon which a Minister’s decision is constrained.

[6] In a media release, the Minister stated that he was “not satisfied that allowing use of the public’s coastal marine area for this development would be appropriate”. Again, in his media release, the Minister expressed concern at the potential destruction of the salt marsh, and the subsequent effects on the development of local iwi. The Minister concluded:

In this case, my view is that the proposed development would not achieve sustainable management, and thus the purpose of the Resource Management Act.

[7] The Society has now initiated judicial review proceedings challenging the Minister’s exercise of discretion, in the High Court. That matter is set down for a three day hearing between the 15^th and 17^th of August. The case is intituled Whangamata Marina Society Inc v Attorney-General (HC WN CIV-2006-485-789).

Applications are made to search the Court file

[8] Four applications have been made for leave to search this Court file.
[9] On 1 June Wild J made orders granting to Radio New Zealand, and the Dominion Post, leave to search and copy documents from the file.
[10] On 27 June 2006 Wild J upheld and confirmed the Registrar’s decision declining leave to the National Party Research Unit to search and copy the file.
[11] Thereafter, Mr McCully applied personally to search the Court file.
[12] Under the relevant rule Mr McCully could make an informal application to the Registrar. In this case he did so, in these terms:

30 June 2006

Registrar

High Court

WELLINGTON

Dear Sir,

I apply to see the file in relation to the Whangamata Marina Society application for a judicial review. The reference for this case is CIV 2006-485-709. I hope this request can be expedited urgently.

The reason I would like to see this file is that I am concerned with the integrity of the decision-making authority in this case, and wish to review the contents of the file, some of which has been subject to recent media attention concerning the decision-making process.

Yours sincerely

Hon Murray McCully

MP East Coast Bays

National Party Spokesperson Conservation

[13] The Registrar refused that request. On a review, Wild J upheld and confirmed the Registrar’s decision.

The High Court judgment

[14] The application by Mr McCully was brought under r 66(9) of the High Court Rules which provides:

A Registrar may grant to any person leave to search, inspect, or copy any file, part of a file, or document the search and inspection of which is not permitted under subclause (3) or is prohibited by any of the provisions of subclauses (5), (6), and (8) and shall, subject to any directions of a Judge, grant such leave to any person having a genuine or proper interest.

[15] The essence of the High Court judgment is that Mr McCully had no “genuine or proper” interest in seeing the file. The Judge went further and said at [6]:

Indeed, I would be concerned that allowing him to do so may risk removing into the political arena an issue which the plaintiff has entrusted to the Court for decision.

[16] The Judge was able to put things shortly in this judgment by reference to his earlier ruling in relation to the National Party Research Unit, on 27 June 2006, where he said:

[9] I cannot rule out that the applicant’s request is so that it can use documents on the Court file, or their contents, for political purposes, whether inside or outside Parliament. This would run roughshod over the principle that Parliament and its members should refrain from commenting on matters before the Courts, which are sub judice.

[10] I need not cite the authorities which note the separate roles of Parliament and the Courts (the former to make the law, the latter to interpret and apply it), and which explain the well established and wise principle that Parliament and the Courts strive to respect each other’s role in the conduct of public affairs. Parliament, for its part, refrains from commenting on matters before the Courts under the sub judice rule. The Courts, in turn, are careful not to interfere with the workings of Parliament. There are excellent statements of this in the Supreme Court of Canada’s decisions in Canada (House of Commons) v Vaid [2005] 1 SCR 667 (particularly by Binnie J at para 20), New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly) 1993 CanLII 153 (SCC); [1993] 1 SCR 319 (particularly McLachlin J at 389) and Canada (Minister of Citizenship and Immigration) v Tobiass [1997] 3 SCR 391 (particularly paras 113-117). And in New Zealand, recently, there is the decision of a Full High Court in Solicitor-General v Smith [2004] 2 NZLR 540 at 557-561.

[11] In this area, as Solicitor-General v Smith painfully demonstrated to all involved, prevention is better than cure. To avoid a situation similar to that in Smith arising, I believe it appropriate to adopt a cautious application of r 66(9). Holding that members of Parliament, as well as the political parties into which they are organised, do not have a “genuine or proper interest” in access to Court files in cases which are undecided before the Courts, will best ensure that Parliament and the Courts perform their respective tasks. This, in turn, will ensure that justice is both done and is seen to be done.

(Emphasis in the judgment.)

The stance of the respective parties on this appeal

[17] Mr McCully appeals the ruling against his application. His central ground of appeal is that, as a Member of Parliament and spokesperson for the National Party on conservation, he has a genuine and proper interest entitling him under r 66(9) to search and copy any part of the Court file.
[18] Mr McCully also contends that the Judge’s expressed concern at the risk that an issue which had been entrusted to the Court for decision would be removed into the political arena, is misplaced.
[19] Ms Clark suggested that the policy rationale behind the present rule, which limits access to documents on a Court file in respect of proceedings yet to be determined, is the suppression of “unjustifiable interference in a litigant’s recourse to courts and in the administration of justice”.
[20] She further argued that applications under the present r 66(9) should be approached from a presumption of non-disclosure (which is clear from r 66 as a whole), but which, it is said, in the case of r 66(9) can be rebutted. This, in the view of the Crown, puts an onus on the applicant “to demonstrate that there is a genuine and proper interest which is greater than that of any honestly motivated citizen or news reporter”.
[21] Ms Clark submitted that the High Court was right to uphold and confirm the Registrar’s decision to refuse Mr McCully’s application. She supported the High Court judgment on the footing that, in the context of r 66 of the High Court Rules, Mr McCully has no more “genuine or proper” interest than any other member of the public; the legislative test for access to the Court file is not met solely by virtue of the fact that an applicant under r 66 is a Member of Parliament or that the Member of Parliament has a party political responsibility for a particular portfolio; and that the constitutional concern adverted to by the High Court Judge is compelling in this instance. She expressed concern as to the implications for the “administration of justice” were this application to be allowed.

The relevant rules

[22] This appears to be the first occasion on which a case calling for a determination of this sort of issue under r 66(9) has reached this Court. It is therefore appropriate to put the narrower issue into its overall context.
[23] The starting point is that, in this jurisdiction, the inherent supervisory power of the High Court to control its processes and practice is governed by the High Court Rules, which provide for access to Court records.
[24] As Ms Clark noted, the formal record of essential steps in a proceeding, and the outcome, are generally available to be searched freely. Access to other material provided to the Court and maintained by the Registrar is subject to the approval of the Court. As the Supreme Court of New Zealand noted in Mafart and Prieur v Television New Zealand Ltd [2006] NZSC 33 at [22]:

No general right of public access to such material not constituting the formal record of the Court is given by any enactment or has been recognised by the authorities.

(See [20] also.)

[25] Rule 66 is not without its complexities. We agree with Ms Clark that the broad scheme creates:

• an entitlement in any person to access a limited class of documents (rr 66(1), (4) and (12));
• a qualified entitlement in any person to access a file relating to a proceeding that has been determined (r 66(3));
• a qualified entitlement in a party to a proceeding or the solicitor for that party to access the Court file (r 66(2));
• a prohibition (with exceptions) on access to files relating to particular proceedings (rr 66(5)-(8)); and
• an entitlement, subject to any directions of a Judge, to access files otherwise prohibited from access, providing a person has a genuine or proper interest in searching, inspecting or copying the file (r 66(9)).

(Emphasis added.)

[26] Under r 66(3), where a proceeding has been determined there is a rebuttable presumption in favour of disclosure (subject to the specific exemptions). On the other hand, under r 66(9) where (as in this case) the proceeding has not yet been determined, the Court must be satisfied that the applicant has a genuine or proper interest. In such an instance it is for the applicant for inspection to make out a genuine or proper interest.

Is the application under r 66(9) a discretionary one?

[27] Ms Clark argued that the determination of the Registrar of the High Court is a wholly “discretionary one”, and that therefore the usual stiff standard of review applies to such a case: namely that it must be shown that the judicial officer acted on a wrong principle, or took into account irrelevant considerations, or disregarded relevant considerations, or was plainly wrong.
[28] At least in relation to the decision under r 66(9) as to whether a person has a genuine or proper interest, we think that submission is not entirely correct. The question whether Mr McCully had what, for convenience, we will call a “sufficient” interest is not a discretionary one: either he has such an interest or he does not. But that is not to say that there are not discretionary aspects to r 66(9) (for instance a decision by a Judge as to whether to attach conditions, and if so, of what character, if such an interest is made out).

The High Court authorities

[29] It is appropriate to traverse the High Court authorities, given that this appeal is apparently the first under r 66(9) to reach this Court.
[30] In Currie v YMCA of Hamilton Inc (1989) 2 PRNZ 343 (HC) the Waikato Times newspaper applied to read and publish extracts from the report of a provisional liquidator of the YMCA, filed in winding up proceedings. Anderson J considered that the words “genuine and proper” (which are not defined in the rules) must have their ordinary meaning, of “authentic or bona fide”. The requisite interest has connotations of “appropriateness, relevant appropriateness in the circumstances” (at 346). The Judge considered that the Waikato Times had an interest in the welfare and future of the YMCA, its creditors, and other persons involved in the difficulties the YMCA faced. It was not merely a “casual, or prurient, or officious” inquiry (at 346). The YMCA was a community amenity, and was a charitable organisation. It had been heavily involved in addressing the interests of the city’s young people. The Waikato Times was also a creditor of the YMCA, and therefore had a financial interest. Leave to search was granted.
[31] In Re Fourth Estate Periodicals Ltd (1989) 3 PRNZ 189 (HC) Williamson J considered that a “genuine interest means a real, true and solidly based interest whereas proper interest involves an interest which is lawful, respectable, and worthy. The genuine or proper interest necessary under the rules should be greater than that of just any honest motivated citizen or news reporter” (at 194). There the applicant was found to be a specialist publication with a particular interest in special commercial litigation. The underlying proceedings had been determined, and no appeal had been lodged against the judgment given on the application of an interim injunction. Leave to search was granted.
[32] In Titchener v Attorney-General (1990) 3 PRNZ 60 (HC) the New Zealand Herald applied for leave to inspect affidavits in a proceeding which was concerned with the validity of some trusts established by the Auckland Harbour Board. Tompkins J did not doubt that the Herald could claim to have an interest, given the considerable public interest in the affairs. But he considered that was not sufficient reason to grant access to the affidavits. The proceedings had not been determined. His Honour was troubled that if the material was to be made available, it would tend to encourage “trial by news media”. Tompkins J considered that such a process could not advance the interests of justice (at 62). Moreover there was a technical problem, in that any party would have the right to withdraw any affidavit that had been filed if the party so chose. Leave to search was declined.
[33] In Grayburn v Laing (1991) 3 PRNZ 195 (HC) the auditors of a company applied to inspect the Court records in respect of proceedings brought by one of that company’s directors against the liquidator of the company. That matter had actually been determined, but the High Court Judge had earlier ordered that any application to search the file be made on notice and determined by the Court. The application was granted because the auditors were being sued by the trustee for debenture stockholders in the company in directly related proceedings, and the information was relevant to that matter.
[34] In Pratt Contractors Ltd v Palmerston North City Council (1992) 5 PRNZ 556 (HC) there was an underlying proceeding concerning an unsuccessful tender for the construction of a flyover. Ellis J gave leave to search the file to the Manawatu Evening Standard as the city’s only daily newspaper. The importance of the proceeding to the city and its citizens was thought to be obvious. There was an issue as to roading between the city and Massey University which was of considerable importance and interest. The newspaper had a genuine and proper interest, “genuine” meaning bona fide (at 558). Ellis J considered that in most cases “genuine and proper” described the same attributes (at 558). He also considered there to be less of a risk of trial by media and prejudgement of issues if pleadings rather than affidavits or exhibits (or presumably briefs of evidence), are searched and published (at 559-560).
[35] In Young v Ross (1999) 13 PRNZ 401 (HC) Hammond J granted an applicant leave to search in relation to defamation proceedings. The applicant had pleaded in his statement of defence to a defamation claim that the words he had spoken were a fair and accurate report of the proceedings he wished to access, and therefore entitled to qualified privilege under the Defamation Act 1992. Hammond J held that the applicant could not advance his defence without proper reference to the Court file, and said the application “is not frivolous, or vexatious or merely prurient, or something of that kind” (at [7]).
[36] In Elworthy-Jones v Counties Trustee Co Ltd (2002) 16 PRNZ 392 (HC) Heath J granted, to a limited extent, leave to The Independent newspaper to inspect and copy documents on the Court file. Heath J was satisfied that The Independent had a genuine or proper interest as a newspaper with a genuine interest in the reporting of business issues of public interest throughout New Zealand. That particular proceeding was a mix of the business and the personal. It was not possible to characterise the extent to which the proceeding could properly be regarded as business related until the pleadings had closed. The precise issues to be determined were not entirely clear. Leave was not given to inspect the Court file generally. A limited order was made. That case is also a good illustration of the point made earlier in this judgment that standing for leave, if made out, is a matter for the Court of a non-discretionary character; what happens in terms of the actual order made is however, discretionary.
[37] In Attorney-General v Palmer [2004] NZAR 112 (HC) Venning J held that a reporter from the New Zealand Herald had a genuine or proper interest in searching the file, again on terms. The primary litigation in that case involved an application to have a party declared a vexatious litigant. This was a rare proceeding and it was a matter of public importance, where a person’s right of access to the Court was to be removed. The Attorney-General in that case recognised the public interest in the Court proceeding, and did not oppose the application.
[38] Ms Clark drew to our attention that the Federal Magistrates Court Rules 2001 (Cth) in Australia contain a provision in Rule 2.08(2) that leave may be granted to a person who demonstrates a proper interest in searching records or inspecting a document. That rule has twice been judicially considered.
[39] In Re an Application by the New South Wales Bar Association [2004] FMCA 52 the Bar Association was granted leave to access the Court file. The Court was satisfied that it had a proper interest. The Association was investigating the possibility that a practitioner may have performed work contrary to the provisions of the Legal Profession Act 1987 (NSW). The Court was satisfied that there was a public interest in advancing the investigation of possible breaches of the Legal Profession Act, and the Bar Association was an appropriate agency to pursue the investigation.
[40] In Loxios Technologies Pty Ltd v Curatherapy Distribution Pty Ltd (ex parte) [2002] FMCA 107 an applicant was granted access to search the file and copy affidavits, including exhibits and annexures to the affidavits. The applicant had been permitted by a Registrar to take a copy of the transcript. Having so proceeded, he had a document which dealt with everything that was transacted in open court except the affidavits which were read, but not read into the transcript. The applicant therefore had difficulty comprehending by reference only to a transcript what had actually been said. The applicant was given leave to view affidavits sworn in the proceeding, subject to certain conditions imposed by the Court.

Discussion

[41] We agree with the Crown submission that, at least as the law presently stands, the starting point in a consideration of the character before us is that a Court file is not a publicly available register, in the usual sense of that term. It is a file maintained by the Court for the proper conduct of the proceedings. Whatever is in the file becomes available for inspection or copying only to the extent that access to what Ms Clark termed “specified documents or classes of documents” is granted, either generally under the rules or by the leave of the Court in a particular case.
[42] The Law Commission in its recent report Access to Court Records (NZLC R93 2006) would prefer to generally increase access to Court records, but within principled limits. It has suggested there should be a presumption of accessibility to Court information, with exceptions. Some exceptions would amount to conclusive reasons for withholding the information; and there would be “potential” exceptions where there may be good reasons for withholding the information. Of course, we have to deal with this case as the law presently stands.
[43] We think applications under this rule are best approached in two stages. The first step is that the applicant must satisfy the judicial officer that he or she has a genuine or a proper interest. Sometimes that will be able to be shown where there is a recognised legal basis for an interest, as in some of the authorities we have referred to. Sometimes there may be a public interest in accessing the file (such as reporting on a matter of public interest, or advancing an investigation into statutory or other breaches). A third category is where, for some reason or other (again demonstrated by some of the cases to which we referred), a person embroiled in what might be termed “collateral court proceedings” needs to be able to access file X to properly deal with matters raised in case Y. We do not wish to be understood as meaning that these categories are conclusive, merely that they are established in the existing body of case-law.
[44] Once a proper interest has been made out, other considerations may come into play. It is true that where an applicant shows that he or she has a “genuine or proper interest” under rule 66(9) the Registrar is “obliged ... to allow the search, inspection, and copying of any file” (Currie at 344, see also Pratt at 558). However, any search, inspection or copying remains “subject to any directions of a Judge by way of overriding control” (Currie at 344). A chief object of courts of justice is to ensure that justice is done. (See Scott v Scott [1913] AC 417 (HL)). The administration of justice might, for some reason, be interfered with by access to a Court file during pending litigation and it is for reasons such as this that the Judge may need to maintain control by way of directions.
[45] Against these general observations, we think that in this instance, the High Court Judge was plainly wrong.
[46] Mr McCully has both a genuine and proper interest in this Court file. His interest is not frivolous or vexatious or merely prurient. He has a real interest, and it is solidly based in the sense that Mr McCully wishes to inform himself (by access to the Court record) as to the nature and basis of the decision made by the Minister, and the basis on which it is said to rest, in the High Court papers. We consider that his “standing” is clear. It is distinctly arguable that he has a greater interest than other citizens, as a Member of this country’s Parliament, to keep himself fully and properly informed, and he has significant public responsibility as the opposition spokesperson on conservation.
[47] The further issues raised by the appeal are first, whether, notwithstanding Mr McCully’s genuine and proper interest, the High Court should entertain a concern as to what might happen if Mr McCully endeavoured to use the information in his capacity as a Member of Parliament. In juxtaposition, a related concern is whether this might, somehow, be seen as the Court impermissibly crossing the line into a Parliamentary matter. Secondly, was the proper administration of justice likely to be impacted upon in this particular case?
[48] As to the first question, we entirely accept that the relationship between the House of Representatives and the judiciary is of the highest constitutional significance (see McGee, Parliamentary Practice in New Zealand (3ed 2005) at 190). As Mr McGee QC has said, that relationship should be marked by mutual respect and restraint, and in New Zealand both Parliament and the courts do closely respect that line.
[49] However, we do not share the Judge’s concern as to how that line could be breached in this case. Parliament is entirely in control of its own processes. Mr McCully might or might not, according to the operative rules of Parliament, be able to utilise whatever information he gleans from the Court file, in the House of Representatives. But Parliament is master of its own house. It does not follow that simply by allowing a Member of Parliament lawful access to the information on the Court file, there is an intrusion upon the privileges of Parliament, or even that it creates a real risk of that happening. The Court should proceed on a basis that the rules of the House will be respected.
[50] Furthermore, the fact that Mr McCully is a Member of Parliament does not detract from the general proposition that all persons are “subject to the usual legal and professional standards applicable to persons publishing anything” including proceedings for contempt (Currie at 345).
[51] As to the second matter (the administration of justice), prior to the hearing before us, under our powers in r 46 of the Court of Appeal (Civil) Rules 2005 we called for the High Court file in question to ascertain the character (but not the detail) of what was on the Court file. There are the pleadings for a judicial review; and the usual voluminous affidavits, including one from the Minister.
[52] The Judge did not express any concern that any disclosures which might be made in this instance might prejudice the upcoming hearing. Although raised by Ms Clark on the appeal, no concern of that nature has been identified. We were told by Mr McCully that the respondent Whangamata Marina Society Inc was advised of his application, and expressed no concern. Ms Clark told us that the Minister of Conservation takes a neutral stance in this proceeding. As to any “grandstanding” by somebody in Mr McCully’s position which might somehow impact upon or undermine the judicial review proceedings - which has some affinity to Tompkin J’s concerns about “trial by media” in Titchener v Attorney-General (above [32]) - the Court has ample powers to control such events where a case is sub judice. Further, both as a lawyer and a Member of Parliament, Mr McCully is a person who is well aware of these constraints.
[53] Finally, even if leave was to be refused with respect to the affidavits, it is extremely difficult to see why Mr McCully should not have been able to see the pleadings.

Conclusion

[54] We think the Judge was wrong. Mr McCully had both a genuine and proper reason to make the application; and there was no appropriate reason to deny him access to the relevant Court records, and to search and copy them. The appeal is accordingly allowed.
[55] There will be no order for costs on the appeal, because Mr McCully appeared in person. But in accordance with the standard practice, Mr McCully will have his usual disbursements in this Court, paid by the Attorney-General.

Solicitors:
Crown Law Office, Wellington