ALT NEW ZEALAND LTD & ORS v ATTORNEY-GENERAL [2023] NZHC 2883

ALT NEW ZEALAND LTD & ORS v ATTORNEY-GENERAL [2023] NZHC 2883 [13 October 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2023-485-000146[2023] NZHC 2883UNDER the Judicial Review Procedure Act 2016 andthe Declaratory Judgments Act 1908IN THE MATTER of an application for judicial review, and fordeclarations under the DeclaratoryJudgments Act 1908, in respect of clause 15of Schedule 5 to the SmokefreeEnvironments and Regulated ProductsRegulations 2021BETWEEN ALT NEW ZEALAND LTDFirst ApplicantVEC LTDSecond ApplicantMYRIAD PHARMACEUTICALS LTDThird ApplicantAND ATTORNEY-GENERALRespondentHearing: (On the papers)Counsel: M Sumpter and H Smith for the RequesterD A Laurenson KC and L I van Dam for the ApplicantsH W Ebersohn and V A Howell for the RespondentJudgment: 13 October 2023JUDGMENT OF CHURCHMAN J[Application for access to Court documents]Introduction[1] The applicants in substantive proceedings have brought judicial reviewproceedings against the respondent, the Director-General of Health, challenging themaking of regulations relating to the maximum nicotine strength in vaping products.The Court has yet to determine those proceedings.[2] By application dated 25 September 2023, Philip Morris (New Zealand) Ltd(the requester), by its solicitors, has applied under the Senior Courts (Access to CourtDocuments) Rules 2017 ("the Rules") for access to the following parts of the formalCourt record in these proceedings:(a) an index of all documents on the Court file;(b) all judgments, orders, or Minutes; and(c) any notices of application and opposition, written submissions andevidence.[3] The respondent says the application is effectively to access all documents onthe Court file and opposes the application. The applicants abide the Court's decision.Application for access[4] The requester seeks permission to access these documents on the basis thataccess promotes open justice and the freedom to seek, receive and impart information.It says that as it is a participant in the industry, regulatory changes directly affect itsbusiness. It says it therefore has a legitimate interest in knowing the details of theseproceedings, particularly given the urgency around the substantive judicial review.[5] The requester says access to the Court file will assist it in making businessdecisions associated with the regulations. Its lawyers also say that access will assistthem in advising the requester about the prospect of regulatory changes.[6] The requester says the nature of the proceedings suggests there are noparticular privacy or confidentiality concerns, but advises that its application is madesubject to any necessary restrictions to protect confidential or private information.Parties' responses to application[7] The respondent opposes access to all documents on the Court file, on the basisof the privacy and confidentiality interests of non-parties, namely those who madesubmissions during the consultation process, and the privacy interests of officialsinvolved in the regulation-making process. In particular, in respect of the non-parties,the respondent says submitters were given the option of making a confidentialsubmission, and some did so on a confidential basis, and the affidavit of Ms Hindsoncontains IP addresses and email addresses of many submitters. In respect of theofficials involved, the respondent says some of the documents attached to theaffidavits contain the contact details of officials who do not deal directly with membersof the public.[8] The respondent says the reasons the requester gives for needing access to theCourt file would likely be met by access to an index of all documents on the Courtfile, and all judgments, orders or Minutes.[9] The applicants abide the Court's decision whether to grant the application.However, the applicants consider the requester's reasons for seeking access can be metunder the general right to access the formal Court record, particularly through accessto the substantive judgment, once it is issued. The applicants also say the applicationsfor interim orders and affidavits contain information about the applicants' commercialoperations that the requester would not otherwise have access to, including throughMinutes and judgments of the Court. Finally, the applicants say the principle of openjustice, on which the application purports to rely, has "little relevance to a request bya private party pursuing a commercial purpose".1Access to court documents[10] Under r 8(1) of the Rules, every person has the right to access the formal Courtrecord relating to civil proceedings. The formal Court record includes "a register oran index" and any judgments, orders and Minutes, but does not extend to alldocuments in the Court file.2 In particular, it does not include pleadings, submissionsor affidavits. The requester's application for access to these documents therefore fallsto be determined under r 11, which provides that a person may ask to access anydocument relating to a proceeding which they are not entitled to access, which requestmay be granted, without or subject to conditions, at the discretion of the Court.[11] Rule 12 of the Rules sets out the matters that must be considered whendetermining a request for access under r 11, including:(a) the orderly and fair administration of justice;(b) the right to bring and defend civil proceedings without the disclosureof any more information about the private lives of individuals, ormatters that are commercially sensitive, than is necessary to satisfy theprinciple of open justice;(c) the protection of other confidentiality and privacy interests and anyprivileged held by, or available to, any person;(d) the principle of open justice;1 Schenker AG v Commerce Commission [2013] NZCA 114, (2013) 22 PRNZ 286 at [38].2 Senior Courts (Access to Court Documents) Rules 2017, r 4 definition of "court file" and "formalcourt record".(e) the freedom to seek, receive and impart information;(f) whether a document to which the request relates is subject to anyrestriction order; and(g) any other matter the Judge thinks appropriate.[12] The principle of open justice is fundamental to our system of justice.3However, there is no presumption in favour of disclosure.4 A balancing exercise hasto be carried out, weighing the privacy interests concerned against the public interestin open justice.5 The Court must balance all relevant factors, using its discretion andevaluation to determine the appropriate weight given to each factor.6[13] The principle of open justice is always relevant, but this must be balancedagainst the other considerations set out in r 12. Furthermore, r 13 provides that afterthe substantive hearing, open justice has greater weight in relation to documents thathave been relied on in the determination of the proceedings, but the protection ofprivacy and confidential interests are to be given greater weight than would be the caseduring the hearing.Discussion[14] The request complies with the content requirements contained in the Rules.7The requester is sufficiently identified, as are the documents sought, and the requesterhas provided specific reasons as to why access is sought. In relation to any conditionsor restrictions that the judge or parties seek to impose on access, the requester has3 Crimson Consulting Ltd v Berry [2018] NZCA 460, [2019] NZAR 30 at [33].4 At [32]; and see New Zealand Animal Law Association v Attorney-General [2021] NZHC 1275 at[7].5 X v Standards Committee (No 1) of the New Zealand Law Society [2011] NZCA 676; and Y vAttorney-General [2016] NZCA 474, [2016] NZAR 1512.6 Schenker AG v Commerce Commission, above n 1, relied on in Crimson Consulting Ltd v Berry,above n 3, at [32].7 Senior Courts (Access to Court Documents) Rules, r 11(2).requested the opportunity to file a memorandum addressing this if the issue arises.This is sufficient in the circumstances to comply with r 11.[15] I now turn to the balancing of factors, weighing the different matters, inparticular the privacy interests concerned against the public interest in open justice.[16] The application is purported to be brought on the basis that access to thedocuments promotes open justice and the freedom to seek, receive and impartinformation. As the Court of Appeal has held, documents relied on or referred to at ahearing should be open to full scrutiny by all members of the public unless there areparticular and strong reasons to the contrary.8 During the hearing, it is "mostpertinent" that the public has the ability to follow and understand the hearing process.9However, prior to and after the substantive hearing the importance of public scrutinyis less, and following the substantive hearing, "[p]arties are entitled to expect that theneed for open justice has been met by full access during the substantive hearingstage".10[17] A key tenet of the principle of open justice is to encourage fair and accuratereporting and comment on Court hearings and decisions. However, that is not presentto any real degree in respect of the present application. Rather, the requester seeks theinformation on the basis that it is a participant in the industry and as such will bedirectly affected by any regulatory changes.[18] However, that is not a matter on which the documents requested may assist.Regulatory changes are obviously within the purview of the executive and legislativebranches, not the judiciary. It is unclear how the submissions and evidence filed inthis judicial review can inform the requester as to upcoming regulatory changes it maywish to be aware of. Indeed, any (necessarily limited) information in that regard thatthe Court can provide will come in the form of the eventual judgment in the judicialreview proceedings. Even that will not provide information to the requester as to8 See Greymouth Petroleum Holdings Ltd v Empresa Nacional Del Petróleo [2017] NZCA 490,[2017] NZAR 1617 at [22] and [25].9 At [25]; and see New Zealand Animal Law Association v Attorney-General, above n 4, at [11].10 At [25].upcoming regulatory changes, but rather the lawfulness of the process leading up tothe regulatory changes already made.[19] The same reasoning applies to the other stated reasons for the request to accessthe documents. The requester, as a participant in the industry, will already be awareof the regulatory changes made. Access to the pleadings, submissions and evidencewill not further assist the requester in terms of making business decisions associatedwith the regulations, as the requester suggests, as this judicial review proceeding willnot in any case determine what the regulations will be going forward, but merely thelawfulness of the decision-making process leading to the regulatory changes.[20] As for the reason given that the requester should have access so its lawyers willbe able to better advise the requester about the prospect of regulatory changes, anysuch advice — necessarily speculative — will best be made when the Court hasdelivered its judgment, not before. Access to the submissions and evidence will likelybe of only limited utility in this regard.[21] I note the decision in New Zealand Animal Law Association v Attorney-General, in which Cull J granted third party access only to the statement of claim.11The judge otherwise declined the application, noting that the application did not reflectthe purposes underlying the Rules. In particular, the request was made on behalf of aprivate organisation pursuing its own purposes rather than a journalist or mediaorganisation, and therefore had less to do with public access and participation in theproceedings, upon which the principle of open justice is founded. The judge alsofound that there were privacy concerns, and the request was for far more detailedinformation than someone would be able to gather from watching the Court hearing,not only in respect of legal submissions but also in respect of information about whohad provided certain evidence on certain topics.[22] I consider the present application to be on all fours in these regards. Inparticular, I note that there are, as the respondent has pointed out, privacy reasons herein favour of not providing access to the documents requested, notably the contact11 New Zealand Animal Law Association v Attorney-General [2020] NZHC 2376, (2020) 25 PRNZ488.details of non-parties and non-public-facing officials, and the submissions ofsubmitters, some of which were provided on condition of confidentiality.[23] Weighing these matters up, I consider the application for access should bedismissed. In particular, I consider the principle of open justice is not a significantfactor justifying access in this case, the requester being a private organisation pursuingits own purposes, and is outweighed by the privacy interests in this case, namely theprivacy interests of non-parties and non-public-facing officials, which favour notgranting access.[24] If, following release of the decision the requester feels it is entitled to moreinformation than is contained in the decision, it will be at liberty to renew theapplication.Disclosed privileged material[25] A related but distinct matter has also been raised by counsel for the Crown. Bymemorandum dated 4 October 2023, I have been advised that by mistake therespondent disclosed legally privileged material (the disclosed privileged material) intwo attachments to affidavits filed in these proceedings. The respondent seeks leaveto redact the disclosed privileged material to protect its legal privilege and re-file theaffidavits with the relevant paragraphs redacted.[26] The disclosed privileged material relates to legal advice provided in respect ofNew Zealand's international trade obligations. It was not put forward or positivelyadvanced as supporting any proposition. The respondent says it has no relevance toany ground of review but was the product of mere inadvertence.[27] An inadvertent or mistaken disclosure of privileged material does not waiveprivilege.12 The applicants do not oppose the orders sought. In the circumstances, Imake orders granting leave for the respondent to file and serve a further electroniccopy of each of the affidavits with the relevant paragraphs redacted, and to collect the12 Evidence Act 2006, s 65(4).two original affidavits from the Court for the purposes of redacting the relevantparagraphs prior to re-filing.Conclusion[28] The application for access to the documents is dismissed.Churchman JSolicitors:Chapman Tripp, Auckland for the RequesterPowle and Hodson, Auckland for the ApplicantsCrown Law Office, Wellington for the Respondent