J BOULT v CRUX PUBLISHING LTD [2022] NZCA 473

J BOULT v CRUX PUBLISHING LTD [2022] NZCA 473 [7 October 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA90/2022[2022] NZCA 473BETWEEN J BOULTAppellantAND CRUX PUBLISHING LIMITEDRespondentHearing: 22 September 2022Court: Gilbert, Brewer and Moore JJCounsel: G J Ryan and N J McKessar for AppellantR K P Stewart for RespondentA C Beck as counsel assistingJudgment: 7 October 2022 at 2 pmJUDGMENT OF THE COURTA The appeal is allowed.B The High Court judgment is set aside.C The application is remitted back to the High Court for determination by aJudge.D There is no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Mr Boult is the mayor of Queenstown Lakes District. He was a former directorof Stonewood Homes New Zealand Ltd and Holmfirth Group Ltd both of which wereplaced in receivership and in liquidation. In 2018, the liquidators brought proceedingsin the High Court at Christchurch against Mr Boult and a Mr Mettrick (another formerdirector) claiming they had breached their obligations under various provisions ofthe Companies Act 1993 in managing the affairs of these companies (the Proceedings).The Proceedings did not proceed to trial and were never adjudicated upon. They weresettled prior to trial on partially confidential terms. The liquidators reported onthe settlement in their statutory report dated 19 November 2021.[2] Crux Publishing Ltd (Crux), publishes an online news website coveringmatters of public interest in the Southern Lakes region. It applied pursuant tothe Senior Courts (Access to Court Documents) Rules 2017 (the Access Rules) foraccess to court documents relating to the Proceedings. Mr Boult opposedthe application. In a judgment delivered on 23 February 2022, the application wasgranted in part by Associate Judge Paulsen.1[3] Mr Boult appealed against the judgment. After the appeal was filed, French Jraised a jurisdictional question as to whether Associate Judges are empowered to dealwith these types of applications. Counsel subsequently agreed that applications underthe Access Rules must be determined by a Judge of the High Court, not anAssociate Judge. Rather than dispose of the appeal without the benefit of contraryargument, Brown J arranged for the appointment of Mr Beck as counsel assisting topresent opposing argument.[4] We are grateful to Mr Beck for his helpful submissions. After examiningthe content and purpose of the relevant legislative provisions, surveying the positionunder predecessor provisions, and considering other contextual matters, he ultimatelyconcludes, in agreement with other counsel, that Associate Judges do not havethe power to make determinations under the Access Rules. In these circumstances,our reasons for dismissing the appeal and remitting the matter to the High Court fordetermination by a Judge can be relatively brief.[5] Section 20 of the Senior Courts Act 2016 (the Act) provides that anAssociate Judge has the jurisdiction and powers of the High Court in respect of1 Cain v Mettrick [2022] NZHC 258 [High Court judgment].the matters listed and of a High Court Judge under specified enactments. The AccessRules are not listed as one of these matters or enactments. Section 21 providesancillary powers to Associate Judges enabling them to exercise the same jurisdictionalpower as a Judge of the High Court in matters that are properly beforethe Associate Judge.[6] Section 22 of the Act makes provision for rules promulgated under s 148 toconfer on Associate Judges the jurisdiction and powers of a High Court Judge inchambers. Rule 2.1 of the High Court Rules 2016 (HCR) sets out the "in chambers"powers exercisable by Associate Judges. Rule 7.34(1) of the HCR provides thatinterlocutory applications, unless uncontested or made orally during a hearing, mustbe heard in chambers unless a Judge otherwise directs. Associate Judges thereforehave jurisdiction to hear interlocutory applications in chambers unless a contrarydirection is made by a Judge.[7] We note that one of the exceptions in s 22 of the Act, reflected in r 2.1(3)(a) ofthe HCR, is that no rules may be made conferring power on Associate Judges to reviewthe exercise of jurisdiction by a Registrar or Deputy Registrar.2 We agree withMr Beck that this is significant in the present context because the rules providing foraccess to court documents have developed as a procedure involving Registrars andJudges.[8] It is reasonably well settled that an application by a non-party for access tocourt documents is an originating application, not an interlocutory application.3Section 4(1) of the Act defines an interlocutory application in civil proceedings as anapplication (in this instance) to the High Court for an order or a direction relating toa matter of procedure or for some relief ancillary to that claimed in a pleading.An interlocutory order is similarly defined in r 1.3(1) of the HCR as being an order ordirection made for the purposes of a proceeding (or an intended proceeding)concerning a matter of procedure or the grant of relief ancillary to that claimed inthe pleadings. The present application plainly does not fall into the category of an2 Senior Courts Act 2016, s 22(4)(f).3 Mafart v Television New Zealand Ltd [2006] NZSC 33, [2006] 3 NZLR 18 at [13] and [40];Greer v Smith [2015] NZSC 196, (2015) 22 PRNZ 785 at [9]; Siemer v Auckland High Court[2019] NZHC 3393, (2019) 25 PRNZ 561 at [4] (overturned on appeal, but not on this point).interlocutory application. The application does not concern a matter of procedure northe grant of relief ancillary to that claimed in the pleadings. Indeed, the Proceedingshad already concluded before Crux made its application for access to court documents.[9] As appears from the explanatory note, the Access Rules were intended tosimplify the provisions for access and provide more specific guidance about howJudges are to balance different considerations when determining access requests.The Access Rules apply to all the Senior Courts to enable consistent treatment.[10] Rule 8(1) of the Access Rules provides that every person has the right to accessthe formal record relating to a civil proceeding. Rule 9 provides general rights ofaccess to the parties to the proceedings. Applications not falling into these categoriesare dealt with under r 11.4 The application is made by providing a written request foraccess complying with the requirements of r 11(2). Such applications are determinedby a Judge unless the Judge refers the request to a Registrar for determination:11 Any person may ask to access documents(1) This rule applies if a person is not entitled to access a documentrelating to a proceeding or an appeal under rule 8 or 9.(7) A Judge may—(a) grant a request for access under this rule in whole or in part—(i) without conditions; or(ii) subject to any conditions that the Judge thinksappropriate; or(b) refuse the request; or(c) refer the request to a Registrar for determination by thatRegistrar.[11] Section 4(1) of the Act defines "Judge" and "Associate Judge" separately.Unless the context otherwise requires, "Judge" is defined to mean "a Judge ofthe High Court". While "Judge" is defined in the HCR to include an Associate Judge4 Senior Courts (Access to Court Documents) Rules 2017, r 11(1).exercising the jurisdiction conferred on an Associate Judge by the Act or by the Rules,"Judge" is defined in the Access Rules to mean "a Judge of the court".5 Unlike theHCR, there is no reference to Associate Judges in the Access Rules. We do notconsider that the Access Rules come within the meaning of "an enactment" underwhich Associate Judges have jurisdiction in terms of s 20(1)(j) of the Act. We agreewith Mr Beck that the term "enactment" in this context means another statutoryprovision, not the rules of court. As he says, the use of rules to create jurisdiction isgoverned by s 22.[12] Given that determinations of access to court documents can be made byRegistrars in certain circumstances, there appears to be no good reason why suchdecisions should not be made by Associate Judges. However, as Mr Beck points out,that was not the position under the predecessor provisions and there is no indicationin any of the minutes of the Rules Committee that any change to this aspect wasconsidered or intended.[13] Section 26I of the Judicature Act 1908 was the predecessor of s 20 of the Actand similarly contained no provision conferring jurisdiction on Associate Judges inrelation to applications for access to court documents. Section 26IA of the JudicatureAct was the predecessor of s 21 of the Act dealing with the ancillary powers ofAssociate Judges. Section 26J was the predecessor to s 22 of the Act and conferred"in Chambers" powers on Associate Judges. Consistent with the present positionunder s 22 of the Act, s 26J(3)(f) of the Judicature Act precluded Associate Judgesfrom having any jurisdiction or power to review the exercise of any jurisdiction orpower conferred on any Registrar or Deputy Registrar. Rule 66 of the High CourtRules 1985 provided that applications for access to court documents were to be madeto the Registrar with a right of review by a Judge.6 It follows that a "Judge" inthis context did not include an Associate Judge.[14] On 1 February 2009, the Judicature (High Court Rules) Amendment Act 2008came into force, replacing the High Court Rules 1985. The High Court Rules 2008initially provided for access decisions to be made by a Registrar subject to review by5 High Court Rules 2016, r 1.3; and Senior Courts (Access to Court Documents) Rules, r 4.6 High Court Rules 1985, r 66(9), (10) and (11).a Judge.7 These Rules were amended as from 12 June 2009. Following theamendment, access decisions were to be determined by a Judge unless a Judge directedthe Registrar to do so.8 A "Judge" was defined in these rules to include anAssociate Judge but only when exercising jurisdiction conferred on anAssociate Judge.9 Again, this traced the jurisdiction back to ss 26I and 26J ofthe Judicature Act which, as we have seen, did not provide jurisdiction toAssociate Judges to determine access applications.[15] In conclusion, we agree with Mr Beck that the Act does not confer expresspower on Associate Judges to determine applications for access to court documents.The Access Rules do not provide otherwise. Associate Judges have not historicallyhad jurisdiction to determine these types of applications and there is nothing to indicatethat any change was intended when the Access Rules were promulgated. It followsthat we agree with the position reached by all counsel that the appeal must be allowedand the matter remitted back to the High Court so that the application can bedetermined by a Judge.Result[16] The appeal is allowed.[17] The High Court judgment is set aside.[18] The application is remitted back to the High Court for determination by aJudge.[19] There is no order for costs.SolicitorsWhite Fox & Jones, Christchurch for Appellant7 High Court Rules 2008, r 3.11.8 Rule 3.13(3).9 Rule 1.3.