ATTORNEY-GENERAL v CHRISTINE FLEMING [2022] NZCA 358

ATTORNEY-GENERAL v CHRISTINE FLEMING [2022] NZCA 358IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA371/2021[2022] NZCA 358BETWEEN ATTORNEY-GENERALAppellantAND CHRISTINE FLEMINGRespondentCourt: Cooper PCounsel: S V McKechnie and T J Bremner for the AppellantP J Dale QC for RespondentL T Meys as litigation guardian for JC F Anyon-Peters for ApplicantJudgment:(On the papers)8 August 2022 at 2:30 pmJUDGMENT OF COOPER PA The application for access to court documents on this Court's file isgranted so far as it relates to minutes, orders, judgments, pleadings andsubmissions. Counsel for the applicant is required to give an undertakingin the terms set out at [8]. The application is otherwise declined.B There is no order as to costs.____________________________________________________________________REASONS[1] The Taikura Trust has made an application for documents held on the Court'sfile in respect of this appeal, under the Senior Courts (Access to Court Documents)(Rules 2017).[2] The documents which are subject to the application are described as:The court record and court file including: court judgments and minutes,applications, pleadings, transcripts, evidence, and any further documentswhich are filed in relation to these proceedings.[3] The application states the reasons that the application is made in the followingterm:Our client, Taikura Trust, is a party to similar proceedings in the EmploymentRelations Authority which were stayed pending the outcome of thisproceeding. Although not a party to this proceeding, a senior executive ofTaikura Trust gave evidence in the Employment Court in this proceeding.Our client has a vested interest in the progress and outcome of the proceedingsCA371/2021 as it will significantly impact (and perhaps be determinative of)the Employment Relations Authority proceedings to which Taikura Trust is aparty.[4] The application contains a statement that the application is advanced on thebasis that there could be an undertaking that any confidential documents were heldonly by counsel and not disclosed to the Trust.[5] A similar application was advanced in the Employment Court, whose judgmenthas given rise to the substantive appeal. In that Court, Chief Judge Inglis ruled theTrust could have access to minutes, orders and judgments made in the proceedings,but otherwise declined the application.1[6] A similar application has also been made in an appeal to be heard at the sametime as this, CA742/2021 Director-General of Health v Peter Humphreys.[7] In a judgment delivered today, I have granted the application in that case on alimited basis, that is that there should be access to the minutes, orders, judgments,pleadings and submissions made as the appeal proceeds to hearing, but there shouldnot be access to notes of evidence, affidavits, and briefs which form part of the recordas it comes to this Court, because of confidentiality and privacy issues in respect ofpersonal information.21 Fleming v Attorney-General [2022] NZEmpC 110 at [18].2 Director-General of Health v Humphreys [2022] NZCA 359.[8] Similar issues as to confidentiality arise in respect of the person for whomMr Meys acts as litigation guardian in this case, J, and the same outcome isappropriate. Counsel for the Trust will need to give an undertaking that confidentialinformation included as part of the submissions and pleadings will be held only bycounsel and will not be disclosed to the Trust.Result[9] The application for access to Court documents on this Court's file is grantedso far as it relates to minutes, orders, judgments, pleadings and submissions. Counselfor the Applicant is required to give an undertaking in the terms set out at [8]. Theapplication is otherwise declined.[10] There is no order as to costs.Solicitors:Simpson Grierson, Wellington for AppellantOakley Moran, Wellington for RespondentNeilsons Lawyers, Auckland for JMeredith Connell, Auckland for Applicant