DIRECTOR-GENERAL OF HEALTH v PETER HUMPHREYS [2022] NZCA 359

DIRECTOR-GENERAL OF HEALTH v PETER HUMPHREYS [2022] NZCA 359 [8 August 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA742/2021[2022] NZCA 359BETWEEN DIRECTOR-GENERAL OF HEALTHAppellantAND PETER HUMPHREYSRespondentCourt: Cooper PCounsel: S V McKechnie and T J Bremner for AppellantP Cranney for RespondentL T Meys as litigation guardian for SC 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 [11]. The application is otherwise declined.B There is no order as to costs.____________________________________________________________________REASONS[1] The Taikura Trust has made an application for access to documents held on theCourt's file in respect of this appeal, under the Senior Courts (Access to CourtDocuments) 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 is made by Meredith Connell on behalf of Taikura Trust(the Trust). The application states the reasons that for making the application in thefollowing terms:Our client, Taikura Trust, is a party to similar proceedings in the EmploymentRelations Authority which were stayed pending the outcome of a relatedclaim, Attorney-General v Fleming (CA371/2021). We understand that theappeals in CA371/2021 and CA742/2021 are to be heard together because oftheir common issues.Our client has a vested interest in the progress and outcome of proceedingCA742/2021 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] Mr Cranney for the respondent opposes the application to the extent that itseeks access to more than the equivalent of what was disclosed by the EmploymentCourt, namely the minutes, orders and judgments made in the proceedings before thisCourt. Mr Meys as litigation guardian takes a slightly more permissive approach,having no objection to pleadings and submissions being disclosed as well as minutes,orders and judgments made in this Court, provided the Trust provides the undertakingreferred to in the application. Mr Meys explains that the notes of evidence, affidavitsand briefs contain private information including information of a personal nature in1 Humphreys v Humphreys [2022] NZEmpC 111 at [20].respect of S, the child for whom he acts. Mr Bremner for the appellant abides by theCourt's decision, noting he has no objection to Mr Meys' proposal.[7] The relevant considerations for such an application are set out in r 12 of theSenior Courts (Access to Court Documents) Rules. The most relevant considerationsin the present case are the protection of confidentiality and privacy interests (includingthose with children and other vulnerable members of the community (r 12(d)), theprincipal of open justice (r 12(e)) and the freedom to seek, receive, and impartinformation (r 12(f)). The list of matters ends with a further provision, r 12(h) whichenables the judge to take into account any other matter the judge thinks appropriate.Relevant here is the fact that the Taikura Trust is not a party to the present proceedingsbut merely wishes to ensure that it is able to monitor what takes place for the purposesof its own litigation interest in a separate case.[8] Under r 13 of the Rules, the protection of confidentiality and privacy interestsmay require that access to documents be limited before the substantive hearing(r 13(a)). During the substantive hearing, open justice has greater weight than at otherstages (r 13(b)). After the substantive hearing open justice has greater weight inrelation to documents that have been relied on in the determination than otherdocuments; but the protection of confidentiality and privacy interests has greaterweight than will be the case during the substantive hearing (r 13(c)).[9] In this Court it is necessary to approach those considerations having regard tothe fact that a hearing in the Employment Court has already taken place and the hearingof the appeal in this Court will take place on the basis of the record already established.In such circumstances, I consider it is appropriate to treat the proceedings as still atthe substantive stage so that open justice has greater weight than at other stages of theproceedings.[10] In these circumstances I am nevertheless satisfied that the protection ofconfidentiality favours the stance adopted by Mr Meys. I consider there should beaccess to the minutes, orders and judgments made as the appeal proceeds to hearing,but there should not be access to notes of evidence, affidavits, and briefs which formpart of the record as it comes to this Court. I also consider that access to pleadingsand submissions should be granted, subject to the undertaking offered by counsel forthe Trust. This is a similar position as was reached by the Chief Judge of theEmployment Court.[11] If the application is granted in those terms, I see no need for there to be anorder for confidentiality. It is the formal record of the Court that has been madeavailable. 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[12] 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 [11]. Theapplication is otherwise declined.[13] There is no order as to costs.Solicitors:Simpson Grierson, Wellington for AppellantOakley Moran, Wellington for RespondentNeilsons Lawyers, Auckland for SMeredith Connell, Auckland for Applicant