Application by Nuku [2019] NZHC 879

Application by Nuku [2019] NZHC 879 [17 April 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHE[2019] NZHC 879IN THE MATTER OF an application by KARL NUKU for accessto documents in CIV-2008-485-1603 andCIV-2017-485-372On the papersJudgment: 17 April 2019JUDGMENT OF MALLON JIntroduction[1] On 5 October 2017 Mr Karl Nuku made a formal request under rr 8 and 11 ofthe Senior Courts (Access to Court Documents) Rules 2017. He sought copies ofcertain documents relating to the proceeding in Greer v Prison Manager at RimutakaPrison (CIV-2008-485-1603).1 On 16 January 2019 Mr Nuku renewed his applicationto access these documents and also sought documents from another proceeding, Greerv Chief Executive, Department of Corrections (CIV-2017-485-372).2[2] These documents are sought to assist Mr Nuku in a High Court proceeding hehas brought that concerns the conduct of law enforcement officers during criminalproceedings against him. Mr Nuku says the requested documents may assist withpotentially making an interim application relating to his limited access to computerfacilities in prison. Both Greer proceedings related to the issue of prisoner access tofacilities.1 This proceeding has been finally determined.2 This proceeding has not been finally determined.[3] The documents Mr Nuku seeks in relation to Greer v Prison Manager atRimutaka Prison (CIV-2008-485-1603) are:(a) a copy of the plaintiff's statement of claim and the respondents'statement of defence or reply;(b) a copy of the plaintiff's affidavits in support of the statement of claimand the respondents' response affidavits (as referenced at [2] of RonaldYoung J's judgment in that proceeding);3(c) a copy of the plaintiff's submissions and the respondents' submissions;(d) a copy of any further minutes, judgments, orders or directions relatingto the Department of Corrections' provision of access to facilities anddocuments to prisoners conducting their own litigation; and(e) a copy of the three cases Ronald Young J refers to at [64].4[4] The documents Mr Nuku seeks in relation to Greer v Chief Executive,Department of Corrections (CIV-2017-485-372) are:(a) Greer v Police [2013] NZHC 2682 and R v Greer [2014] NZHC 358;(b) Greer v Chief Executive, Department of Corrections HC WellingtonCIV 2017-485-372, 10 July 2017, Minute of Ellis J;(c) the affidavit of Ms V J Whelan, sworn 7 August 2017, as referred to at[12] of Greer v Chief Executive, Department of Corrections [2018]NZHC 1240; and(d) the further discovery that was ordered at [42(b)-(c)] of the judgment in(c) above.3 Greer v The Prison Manager at Rimutaka Prison HC Wellington CIV 2008-485-1603,18 December 2008, Judgment of Ronald Young J.4 R v Royal [1993] 10 CRNZ 4; R v Shaw [1992] 1 NZLR 652; and R v Taylor HC Wellington CRI2004-091-4321, 21 July 2001.[5] Following the receipt of this request, Collins J directed that the five publishedjudgments which were requested (at [3(e)] and [4(a)] above) be provided to Mr Nuku.He also sought views on Mr Nuku's request from Mr Greer and counsel for therespondents in each of the above proceedings. All three parties responded detailingobjections to providing Mr Nuku with specific portions of the documents requested.Mr Nuku was then given a three week period to respond to these objections and thathas now been received by the Court.The submissionsThe documents in Greer v The Prison Manager at Rimutaka Prison (CIV-2008-485-1603)[6] Crown Law, as counsel for the respondents:(a) has no objections to Mr Nuku being provided with a copy of theplaintiff's statement of claim, the respondent's statement of defence orreply, and copies of any further minutes, judgments, orders or directionsrelating to the Department of Corrections' provision of access tofacilities and documents to prisoners conducting their own litigation;(b) objects to disclosure of personal information about Mr Greer containedin the Crown submissions at paragraphs 1-25, 35-36, 38-48, 52-56, 59,61-84, 87-95, 97-98, 101-104 and 107; and(c) in relation to the six affidavits filed by the Crown in the proceedings it:(i) objects to the disclosure of the Lamb affidavit (which is anaffidavit of documents);(ii) does not object to the disclosure of the Lee affidavit;(iii) objects to the disclosure of the Woledge affidavit; Brosnahanaffidavit; paragraphs 2-7, 11-15, 19-28, 30, and 33-37 of theHowe affidavit; and paragraphs 3-8 of the Reese affidavit on thebasis that these contain personal information about Mr Greer.(d) There was a seventh affidavit filed by the respondents in thisproceeding (affidavit of Terence Groves, the fifth respondent, filed30 October 2008). Crown Law said nothing about this.[7] Mr Greer does not object to the disclosure of his statement of claim, affidavitin support of statement of claim and submissions. In relation to all other requesteddocuments, Mr Greer has expressed his dissatisfaction with the short three-daytimeframe he was given to review these documents and his experience with the justicesystem generally. He wants to review all other documents and provide his response in"due course". He indicates that "due course" may be around two weeks from whenhe was provided with the Registrar's letter about Mr Nuku's request. I note that it hasbeen almost seven weeks since he was provided with that letter and that no furthercorrespondence has been received from Mr Greer regarding Mr Nuku's request.[8] Mr Nuku considers Crown Law's objection to the personal information aboutMr Greer is properly made and requests that the Court review the paragraphs identifiedby Crown Law and make redactions as needed before providing him with thedocuments. In relation to the affidavit evidence, Mr Nuku concedes the Lamb affidavitneed not be disclosed. He agrees Crown Law's objections to the disclosure of parts ofthe Howe and Reese affidavits are properly made, and asks that the Court review them,redact as appropriate and provide him with the documents.The documents in Greer v Chief Executive, Department of Corrections (CIV-2017-485-372)[9] Luke Cunningham Clere, counsel for the Chief Executive:(a) does not object to the disclosure of Greer v Police [2013] NZHC 2682,R v Greer [2014] NZHC 358 or Chief Executive, Department ofCorrections HC Wellington CIV 2017-485-372, 10 July 2017, Minuteof Ellis J;(b) objects to the disclosure of matters specific or personal to Mr Greercontained in paragraphs 18-25 and annexure C of Ms Whelan'saffidavit;(c) objects to the disclosure of personal information of Ms Whelan ascontained in paragraphs 3-6 of her affidavit; and(d) does not object to the disclosure of documents discovered pursuant toCooke J's order at [42(b)-(c)] of his judgment. Details of these arecontained in the affidavit of documents sworn by Ms Moana RoseGraham on 27 June 2018. The documents in category (b) were alldiscovered by way of the affidavit of Ms Whelan (which has alreadybeen addressed).[10] Mr Greer takes a similar approach to Mr Nuku's request to access documentsin this proceeding as discussed above in relation to the (CIV-2008-485-1603)proceeding.[11] Mr Nuku says the personal information about Ms Whelan (at paragraphs 3-6of her affidavit) is "discoverable" and ought to be disclosed as they will pertain to herposition as Acting Prison Director. Further, similar to his comments above, Mr Nukuagrees with the non-disclosure of personal information about Mr Greer and requeststhe Court review the identified sections and make redactions as needed prior toproviding him with the documents.Access under rule 8[12] Mr Nuku has applied under rr 8 and 11 of the Senior Courts (Access to CourtDocuments) Rules 2017. Rule 8 states:8 General rights of publicCivil proceedings(1) Every person has the right to access the formal court record relatingto a civil proceeding.[13] The two proceedings in relation to which Mr Nuku's application is made arecivil proceedings. Therefore, s 8(1) applies and Mr Nuku has the right to access theformal court record relating to those civil proceedings.[14] The "formal court record" is provided a specific meaning by the Rules:4 Interpretationformal court record means any of the following kept in a registry of thecourt:(a) a register or an index:(b) a published list that gives notice of a hearing:(c) a document that—(i) may be accessed under an enactment other than these rules;or(ii) constitutes notice of its contents to the public:(d) a judgment, an order, or a minute of the court, including any record ofthe reasons given by a Judge:(e) the permanent court record under Part 7 of the Criminal ProcedureRules 2012:(f) the rolls of barristers and solicitors kept under section 56 of theLawyers and Conveyancers Act 2006 or any former correspondingenactment[15] Mr Nuku therefore has the right to access the following under rule 8:(a) In relation to Greer v Prison Manager at Rimutaka Prison (CIV-2008-485-1603): a copy of any further minutes, judgments, orders ordirections relating to the Department of Corrections' provision ofaccess to facilities and documents to prisoners conducting their ownlitigation; and a copy of the three cases Ronald Young J refers to at[64].5(b) In relation to Greer v Chief Executive, Department of Corrections (CIV-2017-485-372): Greer v Police [2013] NZHC 2682; R v Greer [2014]NZHC 358; and Greer v CE of Corrections HC Wellington CIV 2017-485-372, 10 July 2017, Minute of Ellis J;5 R v Royal [1993] 10 CRNZ 4; R v Shaw [1992] 1 NZLR 652; and R v Taylor HC Wellington CRI2004-091-4321, 21 July 2001.Access under rule 11[16] Rule 11 states: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.(2) A person may ask to access any document by providing the Registrarof the relevant court registry with a letter, an email, or any otherwritten form of request that—(a) identifies the person and gives the person's address; and(b) sets out sufficient particulars of the document to enable theRegistrar to identify it; and(c) gives reasons for asking to access the document, which mustset out the purpose for which the access is sought; and(d) sets out any conditions of the right of access that the personproposes as conditions that he or she would be prepared tomeet were a Judge to impose those conditions (for example,conditions that prevent or restrict the person from disclosingthe document or contents of the document, or conditions thatenable the person to view but not copy the document).(3) The Registrar must promptly give a copy of the request to the partiesto the relevant proceeding or appeal, or to their lawyers.(4) A Judge may dispense with the requirement in subclause (3) if itwould be impractical to require notice to be served.(5) A party who receives a copy of a request and who wants to object toit must give written notice of the objection to the Registrar, setting outthe grounds on which the party objects,—(a) before 3 pm on the third working day after the day on whichthe copy is received; or(b) if the copy is received on a day on which a hearing relating tothe document is proceeding, before 3 pm on the first workingday after the day on which the copy is received.(6) For the purposes of subclause (5), a person is deemed to receive acopy of a request on the day on which it is sent electronically orhanded to the person.(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.(8) Without limiting the powers in subclause (7), the Judge may refuse arequest for access under this rule solely for the reason that the requestdoes not comply with subclause (2)(a), (b), (c), or (d).[17] Mr Nuku's request and submissions are compliant with the procedural andformal requirements set out in r 11. I note also, for Mr Greer's information, that therequirement for parties to the relevant proceedings or appeal to object to the requestand provide grounds for that objection within three working days is a requirementimposed by r 11(5) of the Rules and not one set by the Registrar.[18] Rules 12 and 13 are relevant to the court's exercise of discretion to grant accessto court documents under r 11. They state as follows:Determining requests for access12 Matters to be consideredIn determining a request for access under rule 11, the Judge must consider thenature of, and the reasons given for, the request and take into account each ofthe following matters that is relevant to the request or any objection to therequest:(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:(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.13 Approach to balancing matters consideredIn applying rule 12, the Judge must have regard to the following:(a) before the substantive hearing, the protection of confidentiality andprivacy interests and the orderly and fair administration of justice mayrequire that access to documents be limited:(b) during the substantive hearing, open justice has—(i) greater weight than at other stages of the proceeding; and(ii) greater weight in relation to documents relied on in thehearing than other documents:(c) after the substantive hearing,—(i) open justice has greater weight in relation to documents thathave been relied on in a determination than other documents;but(ii) the protection of confidentiality and privacy interests hasgreater weight than would be the case during the substantivehearing.My assessmentAccess to documents in Greer v Prison Manager at Rimutaka Prison (CIV-2008-485-1603) under rule 11[19] Mr Nuku is granted access to unredacted copies of: Mr Greer's statement ofclaim, affidavit in support and submissions; the respondent's statements of defence;and the Lee affidavit. The respondent has consented to the disclosure of them toMr Nuku to the extent they are held by the Court. Mr Greer made similar statementsregarding his statement of claim, affidavit and submissions. The principle of openjustice and the freedom to seek, receive and impart information weighs in favour ofdisclosure. Confidentiality, privacy and commercial sensitivity issues have not beenraised.[20] Mr Nuku is granted redacted access to the following documents:(a) Affidavit of Ms Reese: redacted at paragraphs 3-8.(b) Affidavit of Mr Howe: redacted at paragraphs 2-7, 11-15, 19-28, 30 and33-37.(c) Respondent submissions: redacted at paragraphs 1-25, 35-36, 38-48,52-56, 59, 61-84, 87-95, 97-98, 101-104 and 107.[21] Having reviewed the redactions sought I accept they fall within the categoriesidentified by the Crown, namely information personal or specific to Mr Greer. Iconsider the principles of open justice are met with the documents that are to beprovided by Mr Nuku and in light of the purpose for which the documents are sought.[22] I do not grant Mr Nuku access to the affidavit of Mr Woledge; the respondents'affidavit of documents; the affidavit of Mr Brosnahan; and the affidavit of Mr Groves.[23] I agree with the respondents' counsel's opposition to the disclosure of thesedocuments and acknowledge Mr Nuku's responsible acceptance of that. Thedocuments contain personal information about Mr Greer, other correspondence, andconfidential and private information.6 Those principles outweigh that of open justicehere. This is especially so given the general information about prisoner access tofacilities to which Mr Nuku is being granted access and his stated purpose forrequesting access.Access to documents in Greer v Chief Executive, Department of Corrections (CIV-2017-485-372) under rule 11[24] I grant Mr Nuku access to the affidavit of Mr Whelan with passages therespondent objected to redacted. Having reviewed the redactions sought by therespondent I accept they contain information personal or specific to Mr Greer. Theprinciples of open justice is met without the disclosure of this information (which isspecific to Mr Greer's proceedings) in light of the nature of Mr Nuku's request and thegeneral information to which he has already been provided access.[25] I reject Mr Nuku's submission that the redacted section about Ms Whelan'sprofessional background ought to be left unredacted on the basis it is "discoverable".6 Though not identified by the respondent, Mr Groves' affidavit is covered by the same objection.The respondent does not owe Mr Nuku discovery and his request is made under theaccess to court documents regime and not the discovery regime.[26] Finally, I note in relation to Mr Nuku's request for access to documentsdiscovered pursuant to Cooke J's order at [42(c)] that these are not documents held bythe Court. They have been provided to Mr Greer for the purposes of his litigation butthe Court does not retain a copy unless it has been led as evidence in the proceeding.The Court cannot grant Mr Nuku access to documents it does not possess.Result[27] I make orders for access as per [15], [19], [20], [22] and [25] accordingly. Ifurther order that the documents provided to Mr Nuku are to be used by him solely forthe purpose of his proceeding and are not to be disclosed to any third party for anyother purpose.Mallon J