APPLICATION BY L TUPOU FOR REVIEW OF REGISTRAR’S DECISION [2018] NZHC 637

APPLICATION BY L TUPOU FOR REVIEW OF REGISTRAR'S DECISION [2018] NZHC 637 [11 April 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-002123[2018] NZHC 637IN THE MATTER OF an application by L Tupou for Review ofRegistrar's/Deputy Registrar's Decision forWaiver/Refund of FeesApplicantHearing: [On the Papers]Appearances: L Tupou for the ApplicantJudgment: 11 April 2018JUDGMENT OF EDWARDS JThis judgment was delivered by Justice Edwardson 11 April 2018 at 10.00 am, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:To: L Tupou, AucklandIntroduction[1] Radio New Zealand (RNZ) applies to review a decision of the Deputy Registrardeclining to waive the $30 fee for access to the court file for Commissioner of Policev Borlase.[2] That court file concerns an application by the Commissioner of Police forrestraining and forfeiture orders over Mr Borlase's property following his convictionsfor corruption and bribery of public officials.1[3] RNZ submits that the $30 fee should be waived because the Borlaseproceeding involves matters in the public interest, and that the reporting of thosematters is fundamental to the principle of open justice.Legislative framework[4] Regulations prescribing the fees payable for certain applications are authorisedunder s 156 of the Senior Courts Act 2016 (SCA). The High Court Fees Regulations2013 prescribe the applicable fees for accessing the court file. If the request is madeby a party to the proceeding, or a fee for searching the court record has already beenpaid, then no fee is payable. A fee of $30 is payable in any other case.[5] The SCA governs the waiver of fees. Section 157 provides for regulations tobe made allowing for the waiver of fees in certain circumstances. That sectionprovides:157 Regulations providing for waiver, etc, of fees(1) In order to promote access to justice, the Governor-Generalmay, by Order in Council, make regulations authorising aRegistrar or Deputy Registrar of a senior court to waive,reduce, or postpone the payment of a fee required inconnection with a proceeding or an intended proceeding, or torefund in whole or in part a fee that has already been paid.(2) Regulations made under subsection (1) must provide that aRegistrar or Deputy Registrar may only exercise a powerunder the regulations if he or she is satisfied on the basis ofprescribed criteria that—1 See R v Borlase [2016] NZHC 2971.(a) the person responsible for payment of the fee isunable to pay or absorb the fee in whole or in part; or(b) unless 1 or more of those powers are exercised inrespect of a proceeding that concerns a matter ofgenuine public interest, the proceeding is unlikely tobe commenced or continued.(3) For the purposes of subsection (2), regulations may prescribecriteria—(a) for assessing a person's ability to pay a fee; and(b) for identifying proceedings that concern matters ofgenuine public interest.(4) No fee is payable for an application for the exercise of a powerspecified in subsection (1).[6] Regulation 18 of the High Court Fees Regulations 2013 sets out the basis uponwhich a Registrar may waive a fee as follows:18 Power to waive fees(1) A person otherwise responsible for the payment of a feerequired in connection with a proceeding or an intendedproceeding may apply to a Registrar for a waiver of the fee.(2) The Registrar may waive the fee payable by the person ifsatisfied,—(a) on the basis of one of the criteria specified inregulation 19, that the person is unable to pay the fee;or(b) that the proceeding,—(i) on the basis of one of the criteria specified inregulation 20, concerns a matter of genuinepublic interest; and(ii) is unlikely to be commenced or continuedunless the fee is waived.[7] Section 161 of the SCA deals specifically with the waiver of fees for access tocourt records. That section provides:161 Judge or Registrar may waive certain feesA Judge or Registrar of a senior court may, subject to any terms orconditions that the Judge or Registrar thinks fit, waive the payment ofa fee prescribed under section 156 for accessing documents (in wholeor in part) if the Judge or Registrar is satisfied that the person isunable, or should not be required, to pay the fee.[8] As is apparent from the face of these sections, the power to waive fees arisesunder s 157 and reg 18, and under s 161. But the criteria for waiver differ as betweenthese provisions. The basis upon which a Registrar may waive the fee payable isnarrower under s 157 and reg 18 than under s 161.2[9] The first question is which of these provisions apply in this case. Beforeturning to that question, I consider the approach to be taken to an application to reviewthe Deputy Registrar's decision – whether it was made under s 157 and reg 18, orunder s 161.Approach to review[10] Section 160 of the SCA provides for review of a decision of a Deputy Registrarmade under regulations enacted pursuant to s 157(1). Such a review is to be conductedby way of rehearing.3 Sections 157 and 160 preserve the position as it was underss 100A and 100B of the Judicature Act 1908.[11] Section 160 does not specifically provide for a right of review of a decisionmade under s 161. The absence of an express statutory review provision appears tobe an anomaly and may have arisen because there was no equivalent to s 161 underthe Judicature Act.[12] Nevertheless, the power to review a decision of the Deputy Registrar wouldfall within a Judge's inherent power to direct and supervise Registrars in relation tothe business of the Court. A Judge's inherent power is to be exercised consistently2 Section 157 expressly refers to both Deputy Registrars and Registrars. Section 161 only refers tothe latter. However nothing of substance turns on that apparent difference as under s 34 of theSCA a Deputy Registrar has the same duties and powers as a Registrar, subject to a provision tothe contrary in any other enactment or the High Court Rules, which does not apply in this case.3 Section 160(4).with express statutory provisions and applicable rules.4 In this case the inherent powershould be exercised consistently with s 160(4), and with regard to r 2.11 of theHigh Court Rules which provides for the review of Registrar's decisions made underthose rules. Review under r 2.11 proceeds by way of a full rehearing.5[13] In light of those provisions, I have approached the application for review onthe basis that a Deputy Registrar's decision made pursuant to s 161 is amenable toreview, and that the review proceeds by way of full rehearing with the question ofwaiver considered afresh.Does the power to waive the fee arise under s 157 or s 161 of the SCA?[14] Section 157 is expressed in wide enough terms that an application to waive afee for accessing documents could be said to arise under regulations made pursuant tothat section. However, I consider the power to waive the fee for access to the courtfile arises under s 161 for the following reasons.[15] First, s 161 applies specifically to waiver of fees for accessing documents,rather than waiver of fees more generally as provided for in s 157. Parliament hasdeemed it appropriate to provide for a specific power of waiver for applications foraccess to documents on the court file.[16] Second, the criteria for waiver specified in s 157(2) and reg 18 are apt forparties who must pay a fee to file an application or commence a proceeding, but theydo not apply quite so neatly to applications by third party media organisations to accessthe court file.4 See Greer v Smith [2015] NZSC 196, (2015) 22 PRNZ 785 at [6]. See also r 1.6 of the High CourtRules, which enables a Judge to dispose of a case as nearly as may be practicable in accordancewith the provisions of the rules affecting any similar case, or in a manner thought best calculatedto promote the objective of the rules, where a case arises for which no procedure is prescribed.5 See Andrew Beck and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) atHR 2.11.01[17] Third, the legislative history of the section suggests that it was inserted to allowwaiver of the access fee for the media in certain circumstances. The report of theMinistry of Justice to the Justice and Electoral Committee on the JudicatureModernisation Bill (which became the SCA) included a recommendation that a newsection be inserted to provide specifically for waiver of the fees payable to access thecourt record in certain circumstances. The report records:6This would modify the current power which enables waiver if the person isunable to pay the fee – while the media is able to pay the fee, there arecircumstances where they should not be required to do so. The proposalmirrors section 385A of the Criminal Procedure Act, and would support theprinciple of open justice.[18] Fourth, as noted in the report, s 161 mirrors s 385A of the Criminal ProcedureAct 2011 which specifically provides for the waiver of fees payable for access todocuments in criminal proceedings. The effect of s 161 is to allow waiver of the feefor access to documents on court files, whether civil or criminal, on the same basis.[19] It follows from the above that the application falls to be considered unders 161, and not s 157 and reg 18. There is no suggestion that RNZ is unable to pay the$30 fee in this case. The sole question is whether RNZ should be required to pay thefee.Should RNZ be required to pay the fee?[20] There is no guidance to be gleaned from s 161 itself as to when a party shouldnot be required to pay a fee. Nor have I found any cases on s 385A of theCriminal Procedure Act which would provide assistance in answering this question.[21] Ms Tupou, on behalf of RNZ, submits that the proceeding involves a matter ofpublic interest, and that reporting on the proceeding is consistent with the principle ofopen justice. She submits that the fee "hinders the ability of a public broadcaster toaccess public information" and prevents it from "performing its role as the eyes andears of the public". She submits that waiver is appropriate in this case.6 Ministry of Justice Judicature Modernisation Bill: Report of the Ministry of Justice to the Justiceand Electoral Committee (April 2014) at [257].[22] There can be no quibble with the important role that the media plays in theNew Zealand justice system. The reporting of cases before the court gives voice tothe principle that justice is to be administered openly and publicly. But that does notmean that the fee payable to access the court file should be waived whenever the mediamakes the application. Parliament would have expressly exempted the media frompaying the access fee if that was what was intended. Something more is requiredbefore a Judge or Registrar may be satisfied that an applicant should not be requiredto pay the fee.[23] Waiver may well be warranted in cases where access to court documents toreport on a case is of such high public interest that a media organisation should not berequired to pay the $30 access fee. But I am not satisfied that this is one of those cases.I accept that there is a high public interest in the criminal proceeding which led toMr Borlase being convicted for corruption and bribery of public officials. But accesswas not sought for documents in relation to that criminal proceeding. Rather, theapplication was for access to documents filed in the follow-up civil proceeding inwhich the Commissioner of Police seeks to restrain and forfeit Mr Borlase's property.Such a proceeding does not attract the same level of public interest as the criminalproceeding which led to Mr Borlase's conviction and sentence in my view.[24] The fact that Whata J declined to grant the application for full access to thecourt file substantiates that position. Many of the factors relevant to determining theapplication for access to the court file will also be relevant to the decision to waive the$30 fee.7 Cases in which the principle of open justice and the freedom to seek, receiveand impart information8 compel the grant of access are more likely to warrant waiverof the $30 fee than those cases where other principles assume greater importance. (Forthat reason, it makes sense that any waiver application be determined at the same time,or by the same Judge, who determines the access application).7 For the matters to be considered in determining a request for access, see r 12 of the Senior Courts(Access to Court Documents) Rules 2017.8 Rule 12(e) and (f) respectively.[25] In this case, Whata J found that other factors outweighed the public interest inthe proceeding, at least insofar as access to the full court file was concerned. TheJudge said:9[11] In the present case, given the underlying criminal activity, the publicinterest in the proceedings is strong. However, the restraining orderproceedings are interim in nature.10 The substantive proceedings relating tothe property are foreshadowed forfeiture proceedings. Furthermore, as therespondents have not challenged the application for restraining orders, thereis no active dispute before the Court. In these circumstances, I consider thatprivacy considerations, together with the orderly management of theproceedings, outweigh the immediate need for access to the full Court file. I,however, will grant access to both a copy of the application for restrainingorders (but not the supporting affidavits) and the court order.[26] I do not consider that waiver of the fee can be justified in those circumstances.[27] Finally, I do not accept that the payment of the $30 fee hinders or prevents themedia from reporting on the Borlase proceeding in this case as Ms Tupou submits.The $30 fee is a very small contribution to the administrative cost of processing theapplication for access to the court file. It is not prohibitive and does not act as aneffective barrier for media organisations wanting to undertake research.[28] Overall, I am not persuaded that this is a case where the $30 fee should bewaived. There is no reason why RNZ should not be required to pay the $30 fee formaking an application to access the court file. The application for review isaccordingly declined.Result[29] The application for review is declined.___________________Edwards J9 Commissioner of Police v Borlase [2017] NZHC 2753.10 Criminal Proceeds (Recovery) Act 2009, s 37(1).