HARRISON v HARRISON (Judgment No. 3) [2020] NZHC 524

HARRISON v HARRISON (Judgment No. 3) [2020] NZHC 524 [16 March 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-2078CIV-2019-404-2566[2020] NZHC 524IN THE MATTER Of the Valerie Geard TrustBETWEEN PAULINE JANICE HARRISONPlaintiffAND ADRIENNE HARRISON and GRAEMEROSS HARRISON as trustees of the ValerieGeard TrustDefendantsOn the Papers: At WhangareiJudgment: 16 March 2021JUDGMENT (No. 3) OF POWELL J[Application for Transcript]This judgment was delivered by me on 16 March 2021 at 3.30 pm pursuant toR 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:[1] On 19 November 2020 I issued a judgment1 dealing with a number ofinterlocutory applications in relation to two proceedings brought by the plaintiff,Pauline Harrison:(a) CIV-2019-404-2078 ("the 2078 proceedings"); and(b) CIV-2019-404-2566 ("the 2566 proceedings").[2] As a result of my decision:2(a) The 2078 proceedings were struck out.(b) The claims against the ASB Bank Limited in the 2566 proceedings werestruck out.(c) An extended order was made pursuant to s 166(2) of the Senior CourtsAct 2016 preventing Ms Harrison from commencing or continuing civilproceedings on any matter the subject of proceeding in CIV-2019-404-2566 or otherwise relating to or involving the Valerie Geard Trust, theValerie Geard Waiheke Trust, or the applicants in either their capacityas trustees of those trusts or their personal capacity in a senior court,another court, or a Tribunal.(d) Ms Harrison was ordered to pay security for costs in the 2566proceeding in respect of each of the first, second, third and fourthdefendants in the sum of $20,000 for each defendant, a total of $80,000,with the security to be paid within 28 days of the expiry of the ordermade pursuant to s 166(2).[3] I subsequently issued a further judgment on costs, specifying various amountsto be paid by Ms Harrison.31 Harrison v Harrison [2020] NZHC 3066.2 At [32].3 Harrison v Harrison (Costs) [2020] NZHC 3505.[4] Ms Harrison has appealed the substantive judgment and costs award and hasmade a formal application "for court transcript of electronic recording from theinterlocutory hearing on 30 July 2020". The other parties to the litigation do notoppose or otherwise abide the decision of the Court on the application.[5] As Ms Harrison is aware, no transcript has been prepared for the hearing on30 July 2020 and, in fact, I declined to direct the production of one following thehearing on 30 July 2020. Instead, at Ms Harrison's request, a copy of the audio filesfor the hearing has already been provided as acknowledged in Ms Harrison'sapplication.[6] The relevant principles were recently summarised by Gordon J in Wiki v NZPolice:4Requests for access to court documents fall under the Senior Courts (Accessto Court Documents) Rules 2017 (the Rules).As Ms Wiki was a party to this appeal, she has a general right to search, inspectand copy any part of the court file or any document relating to the proceeding.5However, the transcript of Ms Wiki's appeal does not fall within the definitionof a document, in the context of an appeal, or within the definition of the courtfile.6 That is because there is at present no written transcript of the appealhearing in this Court. The only resource available is the electronic recordingof the hearing.Therefore, Ms Wiki does not have a right to access the transcript. Rule 3(3)provides that the Rules do not require a Registrar or any other person toprepare a document that is not in existence at the time a person asks to accessit.The Court of Appeal stated in Mackenzie v Attorney-General, "[b]ecause thereis time and expense involved in the preparation of a transcript of a hearing,transcripts are not prepared as a matter of course".7The Supreme Court's comments in Siemer v Heron provide guidance as towhether Ms Wiki should be granted access to the transcript:8[9] There are obvious resource implications if judges directcourt registries to provide parties with transcripts of hearings ofappeals and interlocutory matters general on demand by litigants. For4 Wiki v Police [2018] NZHC 2378 at [5]-[11].5 Senior Courts (Access to Court Documents) Rules 2017, r 9(4).6 Rule 4.7 Mackenzie v Attorney-General [2016] NZCA 24 at [22].8 Siemer v Heron [2011] NZSC 116. See also Mackenzie v Attorney-General, above n 7, at [22];Cook v Housing New Zealand Corp [2017] NZHC 3202 at [11].that reason, judges should always first satisfy themselves that there isgood reason in the interests of justice for giving such directions I also note Dobson J's comments in Misiuk v Superintendent of a PenalInstitution:9[19] The resources of the Ministry to undertake suchtranscription are limited Obviously, any widespread practice ofproducing transcripts of electronic recordings in response to requests would create substantial resourcing difficulties for the Ministry.(citations included)[7] Having reviewed Ms Harrison's notice of appeal filed in the Court of Appeal,I am satisfied that there is no "good reason in the interests of justice" for now directingthat a transcript of the 30 July 2020 hearing be prepared and provided to Ms Harrison.Nothing in the notice of appeal indicates that anything occurring in the course of thehearing is in any way at issue in Ms Harrison's appeal. On the contrary, the appeal isentirely directed at substantive matters. Given that position it is apparent that thosesubstantive matters can, as they were before me, be determined on the basis of thematerial placed before the Court without any need for a transcript. It is accordinglyimpossible to discern any useful purpose in directing that a transcript be prepared.[8] Ms Harrison's application is dismissed. There is no order as to costs._______________________________Powell J9 Misiuk v Superintendent of a Penal Institution HC Auckland CIV-2010-404-6625, 8 October 2010.