Non-party inspection of court records and documents
2009 case note – High Court granted an application by a non-party to search, inspect and copy statements and transcripts of evidence given by witnesses.
The High Court granted an application by a non-party to search, inspect and copy statements and transcripts of evidence given by witnesses in the BNZ structured finance case.
Impact of decision
Non-parties will have greater access to search, inspect and copy Court documents.
On 24 September 2009, Maddocks, an Australian law firm, applied to the High Court under High Court Rule 3.13 to search, inspect and copy statements and transcripts of evidence of eight expert witnesses, forming part of the court file, in the BNZ "structured finance" case. Some of the witnesses had been called by BNZ and some by the Commissioner.
In support of its application, Maddocks gave the reason that it was undertaking research in respect of a potential case in Australia and while the issues in that case were not identical to those in the BNZ case some similar issues may arise.
The Commissioner did not oppose the application. BNZ indicated that it would abide by the decision of the Court but did not regard Maddocks' reason as particularly compelling.
His Honour, Justice Wild, noted that the High Court (Access to Court Documents) Amendment Rules 2009 came into force on 12 June 2009. The amendment to the High Court Rules concerning access to Court documents was precipitated by the Law Commission's June 2006 Report "Access to Court Records", which recommended open justice and freedom of information be cornerstones of future rules on access to Court records.
Under the new rules Maddocks, a third-party, did not have eligibility to obtain copies of the witness statements: rules 3.7 to 3.9. It was required to seek the Court's permission: rule 3.13. Under rule 3.16 the Court must consider the reasons for an application to access Court documents and take into account certain prescribed matters.
His Honour considered that under the new rules the threshold for a non-party to obtain access to Court documents is now considerably lower for two reasons.
Firstly, the two-step test enunciated in the Court of Appeal decision inMcCully v Whangamata Marina Society Inc  1 NZLR 185, has been replaced by a single balancing test. Under the two-step McCully test, an applicant had to first satisfy the Court that he or she had a genuine and proper interest in accessing the Court documents and once made out, the Court had to then have regard to whether other considerations may come into play.
Secondly, the substance of the test has shifted from the nature of the applicant's interest to the nature of the information requested, with the principles of open justice and freedom of information creating an effective presumption of disclosure.
His Honour reviewed the approaches taken in the United Kingdom and Australia and concluded that in both jurisdictions open justice is the paramount consideration in determining access to Court files. His Honour noted that an unintended consequence, although one accepted by the Courts, of making open justice a paramount consideration, instead of focusing on the interest of the applicant, is that it allows applicants acting in their own personal interest, rather than in the public interest, to ride on the coat-tails of "open justice".;
His Honour granted the application. He concluded that while the reason for Maddocks' application was not compelling, because it was entirely one of self-interest, the imperatives of open justice and freedom of information prevail.
High Court Rules