PATTERSON V COMMISSIONER OF INLAND REVENUE COA CA870/2011

PATTERSON V COMMISSIONER OF INLAND REVENUE COA CA870/2011 [7 February 2013]IN THE COURT OF APPEAL OF NEW ZEALANDCA870/2011[2013] NZCA 4BETWEEN WAYNE THOMAS PATTERSONAppellantAND COMMISSIONER OF INLANDREVENUERespondentHearing: On the papersJudgment: 7 February 2013 at 3 pmJUDGMENT OF WILD J: APPLICATION BY THE DOMINION POST FOR ACCESS TO DOCUMENTS ON THE COURT FILEThe Dominion Post may have access to the notice of appeal and the judgment under appeal. The application for access to the remainder of the file is declined.____________________________________________________________________REASONS OF WILD JIntroduction[1] Upon an application by the Commissioner of Inland Revenue, Mr Wayne Patterson was adjudicated bankrupt in December 2011. He has since appealed to this Court against that decision. That appeal has not yet been heard. In the meantime the Dominion Post has applied for permission to access certaindocuments associated with Mr Patterson's appeal.Factual background[2] From July 2003 to October 2006 Mr Patterson used over a hundred false identities to receive fraudulently $3.4 million in benefit payments from the Ministryof Social Development. He pleaded guilty to 10 representative charges and wassentenced to eight years' imprisonment.1 The case received significant media attention.2[3] The Commissioner of Inland Revenue's application to adjudicateMr Patterson bankrupt came before Associate Judge Gendall on 30 November 2011. The order adjudicating Mr Patterson bankrupt was made on 1 December 2011.3Application by Dominion Post[4] The application by the Dominion Post was made on 22 August 2012. The newspaper requests access to the notice of appeal, decision under appeal, documents from the High Court, and any documents filed to advance the appeal and to oppose it.[5] The stated reason for the request is the public interest in the continuing efforts to divest Mr Patterson of the benefits of his frauds.Response from parties[6] Responses to the application were sought from both parties.[7] The Commissioner has adopted a "neutral stance" in respect of the release of documents. However, she draws the Court's attention to r 17(c) of the Court of Appeal (Access to Court Documents) Rules 2009 (the COA Access Rules), which emphasises the protection of confidentiality, privacy interests, and privilege. It isnoted that some documents, such as the appellant's submissions and attachedexhibits, contain the personal information of individuals; for example, Mr Patterson's IRD number and the names of IRD staff. If documents are to be1 Ministry of Social Development v Patterson HC Wellington CRI-2006-090-10420, 12 October 2007.2 See, for example, David Fisher "Accused benefit fraudster hid $1m in home and garden" New Zealand Herald (online ed, Auckland, 5 November 2006); "Fraud appeal fails" New Zealand Herald (online ed, Auckland, 7 September 2008); "Mega-welfare fraudster wants governmenthelp" Dominion Post (online ed, Wellington, 19 March 2008).3 Commission of Inland Revenue v Patterson HC Wanganui CIV-2011-483-191, 1 December 2011.released, the Commissioner requests that any such details be redacted to protect individual privacy.[8] Mr Patterson has indicated that he objects to the release of documents. He objects because the release of the documents may prejudice a fair hearing. He maintains that, if documents are released, a "trial by media" will result.Decision under appeal[9] The request for a copy of the decision under appeal falls under r 5 of the COA Access Rules. That rule gives a general right of access to the formal courtrecord kept in the Court's Registry except where such access is prohibited by a Judge. The "formal court record" is defined to include any document that is kept inthe registry of the Court that may be accessed under an enactment other than the COA Access Rules.[10] The Court of Appeal registry holds a copy of the decision under appeal. That decision is also accessible under another enactment – r 3.7 of the High Court Rules. For this reason, the decision under appeal is a formal court record and r 5 applies.[11] The decision under appeal is a public document. There is no reason to restrict access. Accordingly, the Dominion Post is permitted access to that document.Other documents[12] The request for other documents falls under r 12 of the COA Access Rules. That rule governs applications for permission to access documents, court files, or formal court records other than at the hearing stage. It provides that applications must be made informally to the Registrar in a letter that identifies the document, court file, or part of the formal court record that the applicant seeks to access, and gives reasons for the application.[13] Rule 14 provides that a Judge may deal with an application on the papers, at an oral hearing, or in any other manner the Judge or Registrar considers just.[14] Rule 15 provides that the Judge may refuse an application made under r 12 or may grant it in whole or in part without conditions or subject to any conditions that the Judge or Registrar thinks appropriate.[15] Rule 17 provides a list of matters to be taken into account when determining an application under r 12:17 Matters to be taken into accountIn determining an application under rule 12 the Judge must consider the nature of, and the reasons for, the application or request and take into account each of the following matters that is relevant to the application, request, or objection:(a) if the appeal relates to a defendant whose trial is yet to take place or who may be retried, the right of the defendant to a fair hearing:(b) the orderly and fair administration of justice:(c) the protection of confidentiality, privacy interests (including those of children and other vulnerable members of the community), and any privilege held by, or available to, any person:(d) the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, trials and decisions:(e) the freedom to seek, receive, and impart information:(f) whether a document to which the application or request relates is subject to any restriction under rule 11:(g) any other matter that the Judge or Registrar thinks just.[16] The COA Access Rules are similar to the rules contained in subpart 2 of the High Court Rules. In particular, the text of r 17 of the COA Access Rules is nearly identical to r 3.16 of the High Court rules.[17] Despite earlier authority to the contrary,4 it is now reasonably well settled law4 BNZ Investments Ltd v Commissioner of Inland Revenue HC Wellington CIV-2004-485-1059, 2 December 2009.(at High Court level) that the considerations set out in r 3.16 are to be given equal weight.5 The Judge's task is to balance each of the considerations. There is no reason why a similar approach should not be adopted in applying r 17 of the COA Access Rules.[18] A number of the High Court decisions regarding access to court documents deal with situations where a third party, often in another jurisdiction, seeks access to a court file in order to conduct research for future litigation.6 Those decisions are of limited assistance in the present case. More relevant are those decisions dealing with media requests for access. In Chapman v P, Mallon J considered an application by Fairfax New Zealand Ltd to access to a Court file relating to the distribution of an estate. The application was declined on the basis that there was no particular public interest in the detail of private matters on the file. Similarly, in ASB Bank Ltd v Versalko7 Stevens J held that in order to protect privacy interests a redacted form of the Court file was to be made available to the Herald on Sunday and the Sunday Star Times.[19] I consider the intent of r 17 is that all the factors listed are to be considered by this Court on an application under r 12, and each is to be given such weight as this Court thinks fit in the circumstances of the particular application. That interpretation is in line with the decisions I have referred to in [18].Consideration[20] Given the scale of Mr Patterson's offending, and the fact that his frauds werecommitted against a government ministry, I am satisfied that there is a legitimate public interest in this appeal.[21] The notice of appeal was filed on 23 December 2011. This document does not contain any personal information. After giving consideration to the r 175 Chapman v P (2009) 20 PRNZ 330 (HC); Commerce Commission v Air New Zealand [2012] NZHC 271; Orlov v New Zealand Law Society [2012] NZHC 452; Sanofi-Aventis Deutschland GMBH v AFT Pharmaceuticals Ltd [2012] NZHC 1051.6 BNZ Investments Ltd v Commissioner of Inland Revenue; Sanofi-Aventis Deutschland GMBH v AFT Pharmaceuticals Ltd; Orlov v New Zealand Law Society.7 ASB Bank Ltd v Versalko HC Auckland CIV-2009-404-5449, 4 May 2010.principles, in particular 17(d) and 17(e), I conclude that there is no reason why this document cannot be released to the Dominion Post.[22] The next category of document requested is "documents from the High Court". At this stage, the only High Court document on this Court's file is the decision under appeal, already discussed in [9]–[11] above. Therefore no further High Court documents can be released.[23] The final category of documents requested is "any documents filed to advance the appeal and to oppose it". There are several documents currently on the file that fall under this category. The first is a set of submissions filed by Mr Patterson in this Court on 24 May 2012. Attached to those submissions are 13"exhibits". These include letters from IRD to Mr Patterson, entries from Mr Patterson's diary recording dates of contact with the IRD, communications with legal aid, correspondence with the Wanganui District Court, and Official Information Act and Privacy Act requests. The second is another set of submissions, filed on 12 September 2012. This set is almost entirely identical to the first, and contains the same attachments. The other documents on the file are an application for an extension of time, an application for fixture, and an application for waiver of fees.[24] Mr Patterson has objected to the release of these documents on the basis thattheir release may result in a "trial by media". This concern is misplaced. Mr Patterson's appeal will be heard by judges of this Court and not by a jurycomprised of members of the public. There is no risk of "trial by media". In addition, as noted above, I am satisfied that there is a legitimate public interest in this appeal.[25] However, I have also given consideration to the importance of confidentiality, as required by r 17(c). The materials annexed to Mr Patterson's submissions contain a significant amount of private information relating both to Mr Patterson and to individuals he has corresponded with at IRD and other organisations. While this material could potentially be redacted, this would be a time-consuming process, especially if Mr Patterson and the Commissioner sought to approve the documentsprior to their release.8 Furthermore, having reviewed the submissions, I am satisfied that they do not include a great deal of relevant information that is not already contained in the notice of appeal. I am conscious that the proceedings are at a very early stage, and that the Dominion Post can make a fresh application for access to the file after the appeal is heard before this Court.9 Having weighed all of these factors, I am satisfied that it is not appropriate to release the other documents on the file at this stage.Result[26] The Dominion Post may access the notice of appeal and the judgment under appeal. The application to access the remainder of the file is declined.A note on access to documents during the substantive hearing stage[27] I note that the COA Access Rules differentiate between access prior to thehearing and access during the "substantive hearing stage" (the period beginning atthe first day of hearing and ending on the 20th working day after the judgment is released).10 During the substantive hearing stage any person is entitled to access the case on appeal, any affidavits, documents, or depositions admitted into evidence for the purposes of the appeal, and a transcript of any evidence given orally at the appeal unless access to those documents has been specifically prohibited by a judge.11Accordingly the Dominion Post may be able to access more information about Mr Patterson's appeal once it is heard before this Court.8 I note that in Commerce Commission v Air New Zealand Ltd Asher J considered the inconvenience of redaction to be a factor weighing against giving access to the file.9 See [26] below.10 Rule 7.11 Ibid.