AUT University v Kirkpatrick HC Auckland CIV-2011-404-004334 [2011] NZHC 889; (2011) 20 PRNZ 338 (1 August 2011)

High Court of New Zealand

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AUT University v Kirkpatrick HC Auckland CIV-2011-404-004334 [2011] NZHC 889 (1 August 2011); (2011) 20 PRNZ 338

Last Updated: 22 October 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV-2011-404-004334}

BETWEEN AUT UNIVERSITY Applicant

AND JONATHAN RICHARD KIRKPATRICK Respondent

Hearing: On the papers

Judgment: 1 August 2011

_{JUDGMENT OF RODNEY HANSEN J}

This judgment was delivered by me on 1 August 2011 at 2.00 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ...............................

_{Solicitors: Minter Ellison Rudd Watts, P O Box 3798, Auckland}

AUT UNIVERSITY V JONATHAN RICHARD KIRKPATRICK HC AK CIV-2011-404-004334 1 August 2011

[1] The New Zealand Press Association (NZPA) applies for access to the Court file. The application falls to be considered under r 3.13 of the High Court Rules (as the proceeding is not at the substantive hearing stage.)

[2] Notice was given to the parties by the Registrar. They have filed a joint memorandum opposing the application.

[3] NZPA seeks access on the ground that:

... the case is of broad public interest as it involves the alleged theft of more than $500,000 from a public institution.

Little is known about the Court action that has been taken and the information contained in the file would inform NZPA readers as to the issues involved. ...

[4] The grounds of opposition, in summary, are:

(a) The privacy interests of a staff member of AUT University would be compromised if access were granted.

(b) The orderly and fair administration of justice militates against access because of possible prejudice to a police investigation into the subject matter of the proceedings and the fair trial rights of the respondent. There are also concerns that the fair and orderly disposal of the proceeding could itself be prejudiced by disclosure at this stage.

[5] By r 3.16 of the High Court Rules, the following matters must be considered if relevant:

(a) The orderly and fair administration of justice;

(b) The protection of confidentiality, privacy interests and any privilege held by or available to any person;

(c) The principle of open justice;

(d) The freedom to seek, receive, and impart information;

(e) Whether a document to which the application relates is subject to existing restrictions; and

(f) Any matter that the Judge or Registrar thinks just.

[6] I accept that there is broad public interest in the subject matter of the proceeding for the reason stated by the applicant. In the absence of countervailing considerations, the principle of open justice and freedom to seek, receive and impart information may have applied to permit disclosure. But there are compelling considerations which weigh decisively against access to any material on the file at this stage.

[7] The right to privacy of one of the staff members of AUT University is sufficient to deny access to one part of the file. The orderly and fair administration of justice operates to protect all information. There is a clear risk that disclosure could prejudice both the police investigation and the fair trial rights of Mr Kirkpatrick if a criminal prosecution were to ensue. Disclosure could also prejudice the legitimate interests of the parties in the disposal of the proceeding itself. It is at a very early stage. A statement of claim has yet to be filed. Mr Kirkpatrick has not had an opportunity to present a defence. I accept that any report of the proceedings, based on what is currently on the Court file, may give a misleading impression of Mr Kirkpatrick’s position. This was a consideration which favoured refusing access in The Commissioner of Inland Revenue v Methodist

Church Samoa NZ Massey Parish[1] as did the risk, which also exists in this case, that

media access may compromise the success of settlement negotiations which are currently underway.

_{[8] The application is declined.}

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[1] The Commissioner of Inland Revenue v Methodist Church Samoa NZ Massey Parish CIV-2010-

404-3669, 24 November 2010 at [11].