1f5b1fac-17ab-4aeb-9751-0e5d8d49e34e.pdf

IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2013-404-4038[2014] NZHC 2391IN THE MATTER OF the Tax Administration Act 1994BETWEEN ASB BANK LIMITEDPlaintiffAND COMMISSIONER OF INLANDREVENUEDefendantHearing: On the papersJudgment: 1 October 2014JUDGMENT OF WINKELMANN J[on application to access court documents]This judgment was delivered by me on 1 October 2014 at 2.15 pm pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy Registrar[1] Mr Gareth Vaughn of interest.co.nz has applied for access to the Court file inthis proceeding "to follow up on any developments in the case [since he] accessedthe statements of claim and defence last year".[2] The application is to be considered under r 3.13 of the High Court Rules. There is no presumption of access. In deciding whether to grant access I am required to considered the factors enumerated in r 3.16, which provides:3.16 Matters to be taken into accountIn 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:(a) the orderly and fair administration of justice:(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:(d) the freedom to seek, receive, and impart information:(e) whether a document to which the application or request relates is subject to any restriction under rule 3.12:(f) any other matter that the Judge or Registrar thinks just.[3] Mr Vaughn seeks material that has been filed in this Court with respect to interlocutory procedures. Neither party opposes the granting of access, and both abide the decision of the Court. ASB only objects to access being granted to one particular document, namely an affidavit dated 31 January 2014 in support of an application for discovery.[4] As counsel for the ASB submits, the Courts have identified that the principle of open justice has less relevance during the interlocutory stage when it is not clear that the material filed in the Court file will ultimately be in play at the substantivehearing.1 This consideration is particularly strong in respect of material which has not yet been referred to in open Court. Interlocutory applications will generally be heard in chambers so that the public are excluded. Although media may be present, they are only entitled to report upon the result of the proceedings, and not (without leave of the Court) upon argument or material referred to during the hearing. It is for these reasons that access to documents filed in respect of interlocutory applications will frequently be declined.[5] Nevertheless I weigh in favour of granting access the absence of oppositionby either party (subject to ASB's proviso) and also the extent of the public interest inthe material to which access is sought. As Mr Vaughn says, this proceeding concernsa substantial amount of potential tax and involves one of New Zealand's large banks.[6] In relation to the proviso that ASB adds, I accept its submission that the granting of access to the particular affidavit may create an unbalanced view of the proceedings at this point. The affidavit annexes detailed material arguing the position from one party's point of view. There is no counterbalancing detailed response putting forward the other parties' contentions in reply.[7] For these reasons, Mr Vaughn is granted access to the file except for the affidavit dated 31 January 2014 of Bevan Richard Miles filed in support of ASB'sapplication for discovery.1 See, for example, Titchener v Attorney-General (1990) 3 PRNZ 60 (HC).