KELLY v PORTFOLIO PROPERTY NZ LIMITED [2021] NZHC 2944

KELLY v PORTFOLIO PROPERTY NZ LIMITED [2021] NZHC 2944 [2 November 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2021-485-748[2021] NZHC 2944BETWEEN FIONNUALA MARY KELLY ASPERSONAL REPRESENTATIVE OF THEESTATE OF TYNAN FIACHRA KELLYAppellantAND PORTFOLIO PROPERTY NZ LIMITEDRespondentHearing: On the PapersJudgment: 2 November 2021JUDGMENT OF ISAC J[Access to Court documents]Introduction[1] Mary Argue, the applicant, is a student of journalism at Massey University.She seeks access to documents held on the High Court's file concerning an appealdetermined by Thomas J in Kelly v Portfolio Property NZ Ltd.1 The appeal to thisCourt was from a decision of the District Court,2 which itself dealt with an appeal fromthe Tenancy Tribunal.[2] As part of her study, Ms Argue is examining Tenancy Tribunal cases that havebeen appealed to the higher courts. She explains that her interests in the Wellingtonrental market led her to examine decisions of the Tenancy Tribunal, and her focus onthis proceeding was the result of historical media reporting of the case.1 Kelly v Portfolio Property NZ Ltd [2017] NZHC 915.2 Kelly v Portfolio Property NZ Ltd [2016] NZDC 10815.[3] In terms of the scope of the request, Ms Argue seeks:(a) "the Tenancy Tribunal Order as given by the adjudicator at theoriginal Tenancy Tribunal hearing"; and(b) a "transcript" of the Tenancy Tribunal hearing to which the orderrelates.[4] Finally, Ms Argue has also advised that her application for access to courtdocuments was sent both to the District Court and High Court on the basis that eachcourt would determine the application based on the documents held on its files.[5] I have concluded it is appropriate to grant the application. Having carefullyreviewed the Court file again, however, I have disappointing news for Ms Argue. First,there does not appear to be a copy of the Tenancy Tribunal Order (which I take to mean"decision"), on the existing hard-copy file. It should be possible to obtain a copy ofthat decision from the Tribunal itself, however.[6] Second, while there are some fragmentary parts of the relevant transcript, it isincomplete, although it is also seems the Court previously held a complete copy of thetranscript, possibly in electronic form.[7] On making further enquiry, I am advised that the Court does not retainelectronic records dating back to the time the appeal was heard and determined, so itwill not be possible to provide more than those parts of the transcript which areretained on the physical file.[8] While this will no doubt be frustrating for Ms Argue, it may be that she canobtain the complete transcript from either the District Court, or the Tribunal.Position of the parties to the proceeding[9] In an email of 16 September 2021, Ms Fionnuala Kelly, mother of Tynan Kelly(the named appellant), and his personal representative who conducted the appealposthumously on her son's behalf, indicated that she had no objection to Ms Argue'sapplication.[10] The respondent company, Portfolio Property NZ Ltd, is represented byMr Craig Relph. In an email of 16 September 2021, he objected to Ms Argue'sapplication on the following ground:(a) She is not a journalism student. She is in fact a reporter;3(b) It was said Ms Argue lived in the same location as Ms Kelly. Theimplication being that the application was brought with theencouragement of Ms Kelly; and(c) Mr Relph submitted Ms Kelly "continues to attack us, six and a halfyears after her son caused horrific damage to our property and extensivecleaning requirements."[11] In a minute of 17 September 2021 I sought Ms Argue's response to Mr Relph'sobjection, as well as clarification of the scope of her request for access. Ms Argueprovided a response on 21 September 2021, taking issue with Portfolio Property NZLtd's grounds of objection.Analysis[12] Access to Court documents is governed by the Senior Courts (Access to CourtDocuments) Rules 2017.[13] Broadly, the Rules provide for access to two kinds of documents. The first isaccess to the "formal court record", to which the public have a general right of access.The second are any other documents, where the Court must exercise a discretionbefore the documents can be released.3 Links were sent to three online articles to support this submission.[14] As noted, Ms Argue seeks access to two court documents:(a) The "Tenancy Tribunal Order"; and(b) The transcript of the Tenancy Tribunal hearing which ultimately gaverise to the appeal to this Court.[15] As both documents do not fall within the category of documents constitutingthe "formal court record", her application falls for consideration under rr 11–13.[16] A Judge may grant such a request with or without conditions, havingconsidered:4(a) the nature of the request;(b) the reasons given for the request; and(c) each of the matters set out in r 12 that are relevant to the request or anyobjection to the request.[17] The matters for consideration under r 12 are:(a) the orderly and fair administration of justice:(b) the right of a defendant in a criminal proceeding to a fair trial:(c) 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 satisfythe principle of open justice:(d) the protection of other confidentiality and privacy interests (includingthose of children and other vulnerable members of the community)and any privilege held by, or available to, any person:(e) the principle of open justice (including the encouragement of fair andaccurate reporting of, and comment on, court hearings and decisions):(f) the freedom to seek, receive, and impart information:4 Rule 12.(g) whether a document to which the request relates is subject to anyrestriction under rule 7:(h) any other matter that the Judge thinks appropriate.[18] The approach to balancing the r 12 considerations is set out in r 13, whichmakes a distinction as to whether the request is made before, during, or after anysubstantive hearing. The protection of confidentiality and privacy interests havegreater weight after a substantive hearing than would be the case during a substantivehearing.5Discussion[19] The starting point is the nature of, and reason for, the request. While Mr Relphexpressed concern over an alleged relationship between Ms Argue and Ms Kelly, andMs Argue's claim to be a journalism student rather than a journalist, I accept herrequest is one made in furtherance of her course of study. Nor would it matter, in myview, if she made the request as a journalist. It follows that I am satisfied the requestfor access is made for a proper and legitimate purpose.[20] The material sought also relates to judicial processes ordinarily conducted inpublic. And the subject matter does not concern sensitive proceedings of the typeregulated by r 7.[21] Having turned my mind to the matters for consideration under r 12, I amsatisfied that it is appropriate to order release of the Court documents that are stillavailable on the Court file and which fall within the scope of the request. Theproceedings have concluded and have already been the subject of publicly availablejudgments and media reporting. There are no countervailing privacy or confidentialityinterests which have been identified. The documents sought are limited in nature, andform a record of a judicial process. In those circumstances, the freedom to seek,receive and impart information, and the principle of open justice, are paramount.5 Rule 13.Conclusion[22] As noted above, while the application is granted, the Court records now are,unfortunately, incomplete. Such records as were able to be identified as falling withinthe scope of the request will be released as soon as possible following the issue of thisjudgment.Isac J