LOUGHLIN v THE DIRECTOR OF THE SERIOUS FRAUD OFFICE [2017] NZHC 2820

LOUGHLIN v THE DIRECTOR OF THE SERIOUS FRAUD OFFICE [2017] NZHC 2820 [16 November2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2016-404-002975[2017] NZHC 2820BETWEEN JOHN JAMES LOUGHLINPlaintiffAND THE DIRECTOR OF THE SERIOUSFRAUD OFFICEDefendantHearing: (On the papers)Counsel: G M Illingworth QC and A K Hyde for PlaintiffP J Morgan QC for DefendantRuling: 16 November 2017RULING OF VENNING JRe: Access to documentsThis judgment was delivered by me on 16 November 2017 at 4.45 pm, pursuant to Rule 11.5 of theHigh Court Rules.Registrar/Deputy RegistrarDateSolicitors: Morrison Mallett Lawyers, WellingtonCopy to: Serious Fraud Office, P O'Neil, General Counsel, AucklandG Illingworth QC, AucklandP J Morgan QC, HamiltonNBR[1] On 4 September 2017 the Court delivered a decision on Mr Loughlin'sapplication to judicially review the Director's decision to exclude his counsel of choicefrom attendance at interview. The judgment finally determined the application forjudicial review. The judgment contained some redactions, primarily to protect theidentity of persons who were not parties to the proceedings.[2] The SFO has recently publicly stated that it has concluded its investigation intothe matter and no proceedings will follow.[3] The NBR reported on the initial decision. Ms Young of the NBR now seeksaccess to the unredacted judgment "as part of [NBR] research into the SFO'sinvestigation into Zespri".[4] The application is made under the Senior Courts (Access to Court Documents)Rules 2017. In accordance with r 11(3) the request was referred to the parties. Bothparties oppose the request. Mr Illingworth QC makes the point that the parties namedin the unredacted judgment (and anonymised in the redacted judgment) were allinterviewed under a confidential and compulsory process of law. He submits it wouldbe wrong and unfair for their names and other information to be made public aftersubmitting to a process of that kind.[5] In determining the request the Court is directed to consider the nature of andthe reasons given for the request and, in the circumstances of this case, the followingrelevant considerations:(a) the orderly and fair administration of justice;(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; andany 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; [6] Rule 13 confirms that in applying r 12 the Court must have regard to the factthat after the substantive hearing:(i) open justice has greater weight in relation to documents that have beenrelied on in a determination than other documents; but(ii) the protection of confidentiality and privacy interests has greaterweight than would be the case during the substantive hearing.[7] I accept that Ms Young and NBR have a proper interest in the SFO'sinvestigation into Zespri. That is not, however, determinative.[8] The redactions were made to protect the confidentiality and privacy of partieswho were not before the Court as parties on Mr Loughlin's application. The referenceto them was in most parts incidental to the reasoning in the judgment on Mr Loughlin'sapplication for judicial review.[9] Having regard to the relevant considerations I am satisfied that the orderly andfair administration of justice, including the facilitation of future SFO investigationsand the exercise of the compulsory powers under the SFO Act will not be promotedby the publication of the names of the parties whose names were redacted in thejudgment.[10] Mr Loughlin had the right to bring the proceedings to the Court but the otherindividuals would not have been named were it not for the proceedings. Insofar as theprinciple of open justice operates to ensure the fair and accurate reporting of andcomment on Court hearings and decisions it is met by the availability of the redactedversion of the judgment. The judgment and the reasons for it are readily understoodwithout the need to refer to the names of those other parties.[11] While the NBR has the right to seek, receive and impart information, it has theoriginal substantive judgment and has reported on it. It is not necessary to publish theidentity of the parties who were named incidentally and in the course of the judgment.[12] To the extent that the publication of the names might be of interest to the NBRand the public, that interest is effectively trumped by the consideration of r 13(c)(ii),namely that the protection of confidentiality and privacy interests has greater weightgiven that the substantive judicial review proceeding has now been concluded.[13] For the above reasons the application for access is declined.__________________________Venning J