TAYLOR v ATTORNEY-GENERAL [2018] NZHC 2662

TAYLOR v ATTORNEY-GENERAL [2018] NZHC 2662 [15 October 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-797[2018] NZHC 2662UNDER the New Zealand Bill of Rights Act 1990 andthe Declaratory Judgments Act 1908IN THE MATTER of unreasonable search and public lawcompensation in the manner of BaigentdamagesBETWEEN ARTHUR WILLIAM TAYLORFirst PlaintiffPHILLIP JOHN SMITHSecond PlaintiffAND THE ATTORNEY-GENERAL ON BEHALFOF THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSDefendantHearing: On the papersCounsel: First Plaintiff self-representedP J Gunn and K Laurenson for DefendantJudgment: 15 October 2018JUDGMENT OF PETERS J[Application for access to CCTV footage]This judgment was delivered by Justice Peters on 15 October 2018 at 5 pmpursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ...................................Solicitors: Crown Law Office, WellingtonCopy for: Mr A W Taylor[1] I issued my judgment in this proceeding on 28 September 2018 but it remainsfor me to determine an application by Mr Taylor dated 4 July 2018, received on 10 July2018, for an order that:... his Agent, Mr Richard Francois, Barrister, is entitled as an agent of the FirstPlaintiff to a copy of the CCTV footage that was produced as evidence by theDefendant in this proceeding and which is held on the Court file.[2] The application is made on the following grounds:(a) Mr Taylor is a party to the proceeding and is entitled to a copy of thefootage;(b) Mr Taylor, as a serving prisoner, cannot attend the Court in person toexercise his right;(c) Mr Taylor wishes to do so by his duly appointed agent; and(d) additional grounds that appear in Mr Taylor's submissions.[3] The application is made in reliance on High Court Rules 2016 ("HCR"), rr 1.2and 1.6; Senior Courts (Access to Court Documents) Rules 2017 ("SCR"), r 9(1),alternatively, r 11(2); and s 14 New Zealand Bill of Rights Act 1990 ("NZBORA").[4] The defendant opposes the application.1[5] The parties agreed that I should determine the matter on the papers.Background[6] The trial of this matter was held on 19, 20 and 21 March 2018. The issue attrial was the lawfulness or otherwise of a strip search of Mr Taylor and Mr Smith inOctober 2016, both then serving prisoners at Auckland Prison ("prison"). That searchoccurred following a violent and dangerous assault by several other prisoners onDepartment of Corrections staff.1 Notice of Opposition dated 24 July 2018.[7] In the course of the trial, an 11 minute, 10 second excerpt of CCTV footage ofthe assault was played whilst Mr Sherlock, the manager of the prison at the time of theassault, was giving evidence. That excerpt was produced to the Court as exhibit B on21 March 2018.[8] At the conclusion of the trial, Radio New Zealand ("RNZ") requested a copyof the footage that had been played. Despite the defendant's opposition, I ordered thatthe footage be released to RNZ. The Court was not further involved in subsequentdealings between the defendant and RNZ, as matters were left on the basis that thedefendant would make a copy available to RNZ.SubmissionsRule 9(1) SCR[9] Rule 9(1) SCR provides:9 General rights of parties to proceedingsCivil proceedings(1) The parties to a civil proceeding and the parties' lawyers may, underthe supervision of the Registrar or a person appointed by theRegistrar,—(a) search and inspect the court file or any document relating tothe proceeding, without paying a fee; and(b) copy any part of the court file or any document relating to theproceeding on paying the prescribed fee (if any).[10] As previously advised to the parties on 14 May 2018, r 9(1) SCR does notcontemplate that a party's agent may access the file. It is the party and his or herlawyer who may do so.[11] That said, I consider r 10 SCR permits of a written request to the Registrar fora copy of a document (which includes exhibit B), that is the rules accommodate arequest by a party, such as Mr Taylor, who is not able to exercise his right in person.Rule 10 SCR provides:10 Exercising general rights(1) A person may exercise the rights to access documents under rule 8 or9 by orally asking the Registrar of the relevant court registry that holdsthe file for access to 1 or more documents.(2) However, if rule 6 or 7 applies to the document, the Registrar mayrequire the person to ask for access in writing, setting out—(a) sufficient particulars of the document to enable the Registrarto identify it; and(b) the person's reasons for asking to access the document.(3) ...[12] Accordingly, it is open to Mr Taylor to make a written request to the Registrarfor a copy of the footage if he wishes. It will be for the Registrar to consider therequest on receipt. In previous applications or memoranda, Mr Taylor has advised hedoes not wish to have a copy sent to him. His reasons, whatever they may be, areimmaterial to the present issue. The important point is that the Court can provide theinformation to Mr Taylor.Rule 11 SCR[13] Alternatively, Mr Taylor relies on r 11 which provides: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) ...(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).[14] Rule 11 does not apply in the present case. As the defendant submitted, r 11contemplates a request by a third party for access to a document. Mr Francois has notmade a request for access.High Court Rules[15] Mr Taylor also referred me to the following provisions from the High CourtRules:1.2 ObjectiveThe objective of these rules is to secure the just, speedy, and inexpensivedetermination of any proceeding or interlocutory application.1.6 Cases not provided for(1) If any case arises for which no form of procedure is prescribed by anyAct or rules or regulations or by these rules, the court must dispose ofthe case as nearly as may be practicable in accordance with theprovisions of these rules affecting any similar case.(2) If there are no such rules, it must be disposed of in the manner that thecourt thinks is best calculated to promote the objective of these rules(see rule 1.2).[16] I am not persuaded that these rules have any application to the construction ofthe SCR. They apply within the context of the High Court Rules themselves.Section 14 NZBORA[17] Section 14 NZBORA provides:14 Freedom of expressionEveryone has the right to freedom of expression, including the freedom toseek, receive, and impart information and opinions of any kind in any form.[18] I am not persuaded that any of the matters above impinge on Mr Taylor's rightsunder s 14. What Mr Taylor seeks is that the Court make the document available to athird party who has not asked for it. As I have said, if Mr Taylor wishes to have a copyof exhibit B, he is able to obtain a copy by making a written request, to be sent to thecase officer in the first instance. This is consistent with s 14, not in contravention ofthe same.Result[19] I decline Mr Taylor's application of 4 July 2018.[20] Either party should notify if costs are sought and cannot be agreed.Peters J