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High Court of New Zealand Decisions |
Last Updated: 27 March 2023
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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
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CIV 2014-485-11211
[2023] NZHC 620 |
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IN THE MATTER OF
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an application to access court documents under the Senior Courts (Access to
Court Documents) Rules 2017 in relation to the Court’s
file in Osborne v
Ministry of Business, Innovation and Employment
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CHRISTOPHER HARDER
Applicant
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Hearing:
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2 February 2023 (further memoranda filed various dates ending 22 March
2023)
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Counsel:
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Applicant in person
A Hill for WorkSafe New Zealand
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Judgment:
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24 March 2023
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JUDGMENT OF MALLON J
[1] This judgment follows on from a judgment delivered on 22 December 2022 and is to be read with it.1 That judgment provides some context for the application for access to the High Court’s file in a judicial review of the dismissal of charges arising out of the Pike River coal mine tragedy. It also sets out the relevant rules for accessing court documents under the Senior Courts (Access to Court Documents) Rules 2017. It granted access to some documents but sought further information, directed inquiries about potentially interested parties in the application and directed an oral hearing for consideration of the balance of the application.
1 Re Harder [2022] NZHC 3615.
RE HARDER (NO 2) [2023] NZHC 620 [24 March 2023]
Interested parties
[2] In accordance with directions given in my 22 December 2022 judgment, the Registry contacted the lawyers who acted for Mr Whittall (the Chief Executive of Pike River Coal Ltd at the time of the tragedy) to advise them of the application to access court records. They advised that they had no instructions on the matter. Crown Law advised that the only other potentially interested party was the Wellington District Court (which had been a party to the judicial review). As is customary, the District Court had not taken an active part in that proceeding and was not expected to take an active part in the application for access to court records. Counsel for the District Court subsequently confirmed that it abided the Court’s decision on the application.
Applicant
[3] Mr Harder’s application was said to be made as a “McKenzie Friend” for Dean Dunbar and Bernie Monk. Mr Dunbar and Mr Monk lost family members in the tragedy. Following my 22 December 2022 judgment, Mr Dunbar and Mr Monk have confirmed that Mr Harder, “either in his own capacity or as [their] McKenzie Friend” is “fighting” for them and they are grateful for his involvement. At the subsequent hearing, Mr Monk confirmed his support of Mr Harder’s involvement by his presence with Mr Harder at that hearing.
[4] Mr Harder accepted that McKenzie Friend was an inapt description of his role. He wrote the documents filed by the Court and presented the arguments at the hearing I directed. He has a law degree but is unable to practise as a lawyer. He agreed that he should simply be regarded as a non-party applicant to the High Court file, who was self-representing, but with the Court having the reassurance that his application was supported by Mr Monk and Mr Dunbar. Counsel for WorkSafe took no issue with this. I proceed on this basis.
Reason for request
[5] The background to the application to this Court is a request (or requests) made to WorkSafe under the Official Information Act 1982. This request sought information about the legal advice given by the then Solicitor-General to WorkSafe about a
voluntary reparation payment offered in connection with the prosecution of charges against Mr Whittall. WorkSafe declined the request and its decision was upheld by the Ombudsman. Since then, Mr Harder has been seeking access to information that will support his submissions requesting the Ombudsman to reconsider the request for the Solicitor-General’s advice. WorkSafe has provided some documentation but has maintained privilege over others.
[6] The application to access the court records is, as I understand it, for the purpose of persuading the Ombudsman to reconsider whether the Solicitor-General’s advice should be provided. It is also to “promote accountability and transparency for decisions by agencies that have impacted adversely on [Mr Monk and Mr Dunbar and their] families.”2 Ultimately, the purpose is said to be to hold those responsible for the Pike River tragedy publicly accountable. Mr Harder also appears to be motivated by a desire to see the legal advisors involved held to account for their decisions (implicitly because he considers there to be something that requires accountability).
Scope of the request
[7] Mr Harder seeks “full access” to the file. He is particularly interested in the various iterations of the proposed voluntary offer and how these iterations were presented to the High Court in the judicial review proceeding. He is also seeking a transcript of the hearing before Brown J in that proceeding. He is also seeking any documents about the decision that was made to dismiss the charges brought against Mr Whittall in the District Court.
WorkSafe’s position
[8] WorkSafe does not oppose Mr Harder’s request except in relation to privileged documents over which privilege has not already been waived.
Decision
[9] The privileged documents relate to counsel-to-counsel negotiations in relation to the voluntary reparation payment. Those communications were marked “confidential and without prejudice (save to the extent relevant to sentencing)”. They referred to the amount of the proposed voluntary payment, its proposed purpose and the proposed terms on which it would be made available. There were also other related communications marked “without prejudice”. These documents were provided to the High Court on the judicial review application on the basis that:
(a) waiver or privilege in them was limited to providing them for the judicial review application to assist the court in determining the matters at issue;
(b) confidentiality in them was maintained and they were provided only to the applicants and counsel for use in the judicial review; and
(c) privilege was not waived in the legal advice and memoranda referred to in the correspondence.
[10] Subsequently, reference was made to parts of some of these communications in the judgments on the judicial review. Where that occurred, WorkSafe no longer maintains privilege and confidentiality over those parts. Mr Harder also received access to some of the communications from WorkSafe pursuant to his Official Information Act request. WorkSafe therefore confined its objection to access to those without prejudice and confidential communications to which Mr Harder does not already have access in those legitimate ways.
[11] The documents over which privilege is maintained are found at tab 18 and tab 35 of the Agreed Bundle of Documents (Vol two) for the judicial review. WorkSafe has provided me with redacted versions of those documents to assist me in identifying the information over which privileged is maintained. WorkSafe submits that release of these documents would be contrary to the orderly and fair
administration of justice.3 This is because of the risk that parties to proceedings may be discouraged from making similar disclosures in court proceedings in the future. It is also because it undermines the privilege in plea bargaining discussions by undermining or having a chilling effect on full and frank exploration of options in resolving criminal proceedings. WorkSafe submits that these considerations outweigh the principle of open justice and the freedom to seek and receive information that support granting access to the documents.4 Further, the protection of confidentiality and privacy interests have greater weight after proceedings have concluded than would be the case during the substantive hearing.5
[12] Mr Harder vigorously opposes the redactions. He seeks a further hearing focussing on those redactions and in order to give “further evidence”. Access to court records are ordinarily determined on the papers. I directed the hearing earlier this year because the information before me at that point was confusing and incomplete. Mr Harder has now had the opportunity to make oral submissions at that hearing. There is no proper basis nor need for a further hearing and the request for a further hearing is declined.
[13] WorkSafe claims “settlement privilege” or “without prejudice” privilege over the relevant documents. In the civil context, this is a privilege invoked over statements made by a party negotiating the settlement of a dispute with another party. Its purpose is to encourage settlement and avoid unnecessary trial.6 Previously, there was doubt as to whether it applied to “plea discussions” in criminal proceedings. That doubt was removed with amendments made to s 57 of the Evidence Act 2007 following the Law Commission recommendations.7
[14] Section 57 of the Evidence Act (as relevant) provides:8
...
3 Senior Courts (Access to Court Documents) Rules 2017, r 12(a).
4 Rule 12(e) and (f).
5 Rule 13(c)(ii).
6 Te Aka Matua o te Ture | Law Commission The First Review of the Evidence Act 2006
(NZLC R127, 2013) at [10.64].
7 At [10.92]; and Evidence Amendment Bill 2015 (27–3), cl 22.
8 Emphasis added.
(2A) A person who is a party to a criminal proceeding has a privilege in respect of any communication or document made or prepared in connection with plea discussions in the proceeding.
(2B) However, the court may order the disclosure of the whole or any part of a communication or document privileged under subsection (2A) if the court considers that—
(a) the disclosure is necessary for a subsequent prosecution for perjury; or
(b) the disclosure is necessary to clarify the terms of an agreement reached, if the terms are later disputed or are ambiguous; or
(c) after due consideration of the importance of the privilege and of the rights of a defendant in a criminal proceeding, it would be contrary to justice not to disclose the communication or document or part of it.
...
[15] On a broad view, the communications over which privilege is claimed are “plea discussions” in that they concerned a possible resolution of the charges. The law is not clear whether the privilege ends with the resolution of charges or whether “once privileged, always privileged” is the correct approach.9 I adopt the latter approach as that preserves the privilege in situations where it may be appropriate to do so beyond the case in which the discussions occurred and s 57 provides grounds on which disclosure can be authorised in an appropriate case. In this case, the relevant ground is whether it would be contrary to justice not to disclose the communications or part of it.
[16] I note that Mr Harder suggests that the Court should disallow the claimed privilege under s 67(1) of the Evidence Act on the basis of there being a “prima facie case that the communication was made or received, or the information was compiled or prepared” for a dishonest purpose or to enable anyone to commit, what the person claiming privilege knew or reasonably ought to have known, was an offence. I do not
accept that this ground is made out. Similarly, Mr Harder claims that WorkSafe has committed “a further offence” by claiming privilege over the relevant documents. I do not accept this either.
[17] WorkSafe acknowledges the Court may find that s 57(2B) applies and leaves the question of whether the “contrary to justice” exception is made out for the privileged documents in the Court’s hands. As to this, Mr Harder says it is in the interests of justice that he be given full access to all documents on the Court file so that he can be “fully informed” and in the best position to make submissions to the Ombudsman.
[18] In determining when it would be contrary to justice not to disclose the documents, it is appropriate to balance the public interest in upholding the privilege with the competing public interest in revealing it. As one commentator puts it, upholding privilege in the criminal context has significant value for the administration of the justice. 10 This may lie in relieving victims or complainants from the burden of the trial process; releasing court and judicial time, prosecution costs, and legal aid resources; and providing a structured environment in which the defendant may accept any appropriate responsibility for offending that may be reflected in any sentence.11
[19] In this case, allowing Mr Harder to access court records that include documents over which privilege is claimed, will amount to authorising the disclosure under s 57 of the Evidence Act. While some of Mr Harder’s claims appear to be extravagant, the fact is that he already has access to some of the documents over which privilege is claimed both through legitimate sources and unclear ones. The problem with a partial disclosure is that it can potentially give a wrong or misleading impression about what has not been disclosed. Having reviewed the documents, there is no particular reason to maintain the privilege over the remaining documents in light of those that Mr Harder (and through him, Mr Dunbar and Mr Monk) already has. They raise no new or independent issues that require a different balancing of the competing public interests.
11 At 269.
That is confirmed by counsel for WorkSafe who confirmed that the opposition was based on principle rather than anything in particular about the remaining documents.
[20] In all the circumstances, therefore, I consider that transparency through open justice outweighs the factors that point against disclosure of the documents over which privilege is claimed. I take this view even though Mr Harder is a third party with no direct interest in the Pike River tragedy or the judicial review of the decision not to proceed with charges against Mr Whittall. I do so because Mr Dunbar and Mr Monk support Mr Harder’s access. Transparency is in the interests of justice as, without it, there is scope for false speculation and misunderstanding. Such speculation and misunderstanding can undermine confidence in the administration of justice.
Court recording and transcript
[21] Mr Harder seeks access to the court transcript of the judicial review hearing before Brown J. He has been advised that the transcript does not exist. He asks that it be transcribed, noting that he was required to pay a hearing fee for the hearing that I directed on the application for access to the court file. WorkSafe does not oppose Mr Harder’s access to the recording.
[22] The judicial review hearing lasted two days. It will involve some cost to the court to have it transcribed. As a first step, and as is the usual approach when access is sought to a transcript of a hearing that has not been transcribed, I direct that Mr Harder, in the company of Mr Dunbar and/or Mr Monk if they wish to attend, may listen to the court recording of the hearing. They are to contact the registry to arrange a time to do so. If, after listening to the court recording, Mr Harder wishes to have any part of the recording transcribed, he is to identify which particular part. That part is then to be transcribed and made available to him.
Other documents
[23] Mr Harder has already been granted access to the judgments and minutes on the file.12
12 Re Harder, above n 1, at [19].
[24] He also seeks access to the written submissions of the parties for the judicial review, the affidavits and the index of documents. WorkSafe does not oppose their release except in so far as they may refer to the documents over which privilege is claimed. However, as I have already determined that Mr Harder may have access to those documents, he may also have access to the written submissions, the affidavits and the index of documents.
[25] Mr Harder seeks access to an MBIE document dated 5 December 2013 that has the subject heading “Decision in MBIE v Whittall”. This document is tab 21 in the Agreed Bundle of Documents (Vol two). WorkSafe did not directly address this in its submissions and I therefore infer it does not oppose access to it. Counsel for WorkSafe is to confirm this within five days of the date of this judgment. Assuming it does not oppose access, Mr Harder is granted access to it.
Result
[26] The application for access to the court file is granted as set out in this judgment.
Note
[27] WorkSafe notes that Ombudsman investigations are conducted in private and provisional opinions are private. This judgment does not quote from any such provisional opinion. There may be quotes from provisional opinions in the various memoranda filed by Mr Harder. Should any application in the future be made to access those memoranda, privacy interests will need to be considered.
Mallon J
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