Murray v Ministry of Justice [2014] NZHC 2959 (25 November 2014)

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UNDER	The Judicature Amendment Act 1972
IN THE MATTER	of the New Zealand Bill of Rights Act 1990
AND IN THE MATTER	of an application for Judicial Review
BETWEEN	DAVINA VALERIE MURRAY Plaintiff
AND	THE MINISTRY OF JUSTICE First Respondent THE LEGAL COMPLAINTS REVIEW OFFICER Second Respondent THE NEW ZEALAND LAW SOCIETY Third Respondent

Hearing:	On the papers
Counsel:	Plaintiff K Muller & M McKillop for the First and Second Respondents P Collins & M Treleaven for the Third Respondent
_Judgment:	_{25 November 2014}

This judgment was delivered by me on Tuesday 25 November 2014 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules.

[1] Radio New Zealand (RNZ) has applied to inspect the court file in this matter. The reason given for the request is “To write stories for Radio New Zealand”.

[2] The plaintiff, Ms Murray, opposes the application. She does not give reasons of her opposition.

[3] The first respondent (Ministry of Justice), second respondent (Legal Complaints Review Officer) and third respondent (New Zealand Law Society) have advised that they abide the decision of the Court.

[5] On 25 September 2012, the Standards Committee 4 found that Ms Murray’s conduct (the subject of a complaint) constituted unsatisfactory conduct. It also found her guilty of unsatisfactory conduct in respect of a second complaint.

[6] On 6 November 2012, Ms Murray filed an application for review of the Standards Committee’s decisions with the Legal Complaints Review Officer (Review Officer).

[7] On 1 August 2013 Ms Murray was found guilty of an offence under s 141(1)(c) of the Corrections Act.

[8] On 28 August 2013 the New Zealand Law Society (NZLS) refused to issue a practising certificate to Ms Murray.

[9] On 20 June 2014 the Review Officer dismissed Ms Murray’s applications for review of the Standards Committee’s decisions.

[10] On 29 May 2014 Ms Murray filed an application for judicial review of the decisions made by/actions of the Ministry of Justice, the Review Officer and NZLS. Ms Murray discontinued the proceedings on 8 October 2014.

(a) NZLS exceeded its powers by suspending her practising certificate before her review of the Standard Committee’s decisions had been determined. She said this premature suspension prejudiced her application for a discharge without conviction (on the charge of supplying contraband to a prisoner);

(b) the Ministry and the Review Officer breached natural justice by failing to act fairly and without undue delay. The pleading was that the hearing of the review was set down for 29 May 2014, 18 months after she filed the relevant application. She said that if the review had been determined in a timely manner, NZLS might not have suspended her practising certificate.

(c) a declaration that the Ministry breached its duty to ensure its departments administer justice fairly and without undue delay;

(e) a stay of proceedings of the matters before the Review Officer and an order that a different standards committee hear the original complaints.

[13] NZLS’ statement of defence was filed on 4 July 2014. It pleaded that NZLS did not suspend her practising certificate but rather declined to renew it (it was due to expire). NZLS said that Ms Murray was given notice of the fact that it might not re-issue her a practising certificate on the basis of the Standards Committee’s findings against her as well as numerous other matters.

[14] The file also contains an “Application for interim relief” filed by Ms Murray alongside her statement of claim on 29 May 2014. In it she sought an adjournment of the Review Officer’s hearing set down for that day. Faire J recorded in a minute that because the document did not comply with High Court Rules and in no way resembled either a notice of application or a without notice application, the Court could not act upon it.

[15] Along with various items of correspondence and other procedural memoranda, the file contains a joint memorandum of the respondents (dated 4

August 2014) and a consent memorandum (dated 8 September 2014) relating to Ms Murray’s requests for adjournments pending the determination of her legal aid application be determined. There are three directions (Cooper and Ellis JJ) granting these adjournments.

[16] The file also contains the notice of discontinuance filed by Ms Murray on 8

[17] Finally, the file contains a “Record of the Second Respondent’s Decisions of

September 2012, the two Review Officer decisions dated 20 June 2014 and associated minutes.

[19] Rule 3.5 provides that the “formal court record” includes any “judgment, order, or minute of the court, including any record of the reasons given by the Judge”.

[20] Rule 3.7, provides that, subject to r 3.12 and any specific orders of a Judge, there is a general right of access to the formal court record. In the present case it is relevant that r 3.12(1) provides that the Court’s power to grant permission to access documents on a Court file is subject to any enactment, court order, or direction limiting or prohibiting access or publication.

[21] The process for applications for access to other formal court documents (other than at hearing stage) is governed by r 3.13. Rule 3.14 provides that when determining an application under r 3.13 the Judge may refuse or grant the application in whole or in part or with any conditions that the Judge sees fit. The factors that need to be taken into account under r 3.13 are set out in r 3.16 as follows:

In determining an application under rule 3.13, or a request for permission under rule 3.9, or the determination of an objection under that rule, the Judge or Registrar must consider the nature of, and the reasons for, the application or request and take into account each of the following matters that is relevant to the application, request, or objection:

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

(c) the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, court hearings and decisions:

(e) whether a document to which the application or request relates is subject to any restriction under rule 3.12:

[22] It will be apparent from my summary of the contents of the file above that the formal court record here is limited to Faire J’s minute and the timetabling directions minuted on 8 August 2014 and 9 September 2014. I can see no reason why the default position (in favour of access) should not apply to those documents.

[23] In terms of the pleadings and other formal documents it has been noted that the r 3.16 factors do not represent a hierarchy: “the relevance and weight ascribed to each [factor] will depend on the context of [the] request and in particular the nature of and the reasons for an application or request”.¹A balancing exercise is required.²

The rule no longer requires that an applicant establish a legitimate interest. However, the courts are likely to be less sympathetic to persons who cannot show a “recognisable and legitimate public or private purpose” for seeking access.³

[24] The principles of open justice will often weigh strongly in favour of disclosure. But Asher J has said that “it is significant that the principle of open justice is given a limited definition in the rule”.⁴So because, in the present case, there has been no substantive hearing or court decision, the public interest reflected in the principle is arguably not engaged.

[25] In terms of the freedom to seek and impart information, the nature and reason for the access request is important.⁵The principle “does not exist in a vacuum” but rather “requires a consideration of the reason for the request”.⁶Here, the reason given by RNZ is brief – “to write stories”.

[26] Notwithstanding the absence of detail about the proposed “stories”, the

starting point is that the media has an important role in disseminating and making comment on court proceedings and judicial decisions. But again, the fact that this

⁴At [31]. That principle is defined in r 3.16(c) as “encouraging fair and accurate reporting of, and

⁵The freedom to seek and impart information overlaps with the principle of open justice;

particular proceeding has been discontinued before any hearing diminishes that importance somewhat.

[27] In terms of factors that militate against the grant of access, Ms Murray has not filed submissions, nor has she specified the basis for her opposition to RNZ’s application. I therefore proceed on the basis that she opposes on the basis of her privacy interests.

[28] Most of the information in the statements of claim and defence relating to Ms Murray is already in the public domain; her conviction and suspension have already attracted much media attention. Presumably, however, she would not wish the media to access or report on that part of the statement of defence in which NZLS quotes a letter it sent to Ms Murray setting out the various grounds on which they may refuse to issue her a practising certificate. While some of those things are likely already to be in the public domain, others may not be.

[29] There are also allegations in Ms Murray’s statement of claim that are potentially prejudicial to third parties. The truth of those allegations will never be tested and there can be no legitimate public interest in knowing about them.

[30] Lastly, there is the matter of the decisions made by the Standards Committee and the Review Officer (being the decisions which were the subject of the judicial review proceedings).

(a) the Standards Committee decision states that the committee postponed any direction as to publication of its decision under s 142(2) of the Lawyers and Conveyancers Act 2006 (which permits a Committee to direct such publication as it considers necessary or desirable in the public interest). It is not clear whether any publication has subsequently been directed;

(b) similarly, under s 206(4) of the 2006 Act, a Review Officer may direct such publication of his or her decisions as he or she considers necessary or desirable in the public interest. The two decisions in Ms Murray’s case contain no directions relating to their publication.⁷The default position would appear to be that, in the absence of such a decision, publication is not permitted.

[32] It is unclear to me why neither Ms Murray nor the respondents drew these provisions to the Court’s attention. But in the absence of any information that suggests that publication directions have been made, it would be inappropriate (and possibly unlawful) for this Court to permit access to these decisions.

(c) access to the pleadings and other related documents is denied on the grounds that, given that the proceedings have been discontinued, the principles of open justice and freedom of information are outweighed by the privacy interests of Ms Murray and third parties referred to in

⁷The Review Officer’s website contains publication guidelines, setting out factors that will be taken into account when determining whether publication is in the public interest. The guidelines state that decisions with identifying particulars removed will routinely be published on the Review Officer’s website. See Legal Co mp lai nt s Revie w O fficer “P ub licatio n Guid elines”

High Court of New Zealand Decisions

Murray v Ministry of Justice [2014] NZHC 2959 (25 November 2014)