IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE	
CIV-2019-485-366
[2021] NZHC 141	

BETWEEN	MAU WHENUA INCORPORATED
First Plaintiff

WHAREAHURU GILBERT and MARTHA HINEONE GILBERT
Second Plaintiffs

KAREN MARAMA PARATA MABEL URU TANIRAU and
ROGAN RAWIRI HOHAPE TANIRAU
Third Plaintiffs	
AND	WAYNE THOMAS MULLIGAN JOHN FREDERICK COFFEY HOLDEN HOHAIA
TOA WOODBINE POMARE MAHINA HABER-PUKETAPU KIM SKELTON
PAORA JENKINS-MEPHAM and HUIA PUKETAPU
First Defendants

SHELLY BAY INVESTMENTS LIMITED
Third Defendant

SHELLY BAY TAIKURU LIMITED
Fourth Defendant	

On the papers:		
Counsel:	S Rush in person
C J Curran and M W McMenamin for Plaintiffs
D J Neutze and T J Cooley for First and Second Defendants No appearance for Third and Fourth Defendants	
Judgment:	12 February 2021	

MAU WHENUA INCORPORATED v WAYNE THOMAS MULLIGAN [2021] NZHC 141 [12 February 2021]

JUDGMENT OF CHURCHMAN J

[1]	On 17 December 2020, a notice of discontinuance was filed in these proceedings on behalf of all of the plaintiffs. Subject to any potential application by the defendants as to costs, the filing of the notice of discontinuance concluded these proceedings.

[2]	However, on 8 December 2020, Enterprise Miramar Peninsula Inc (EMP) had applied to the Court pursuant to the Senior Courts (Access to Court Documents) Rules 2017 (the Rules) for access to the statement of claim in these proceedings.

[3]	The defendants all opposed that application.

[4]	On 18 December 2020, the Court issued a decision rejecting the application under the Rules and setting out the reasons for that decision.1

Recent developments

[5]	By email sent to the Registrar on 29 January 2021, Sean Rush made an application under the Rules “to see copies of the statement of claim and defence (and any Amendments/Supplements thereto) as well as any Reply and additional supplements” in regard to the above proceedings.

[6]	The reasons advanced in support of the application were:

(a)	that it was a matter of public record that the Wellington City Council recently approved the key commercial terms to the sale and lease of land adjoining the area that is subject to the proceedings. It was a controversial decision which Mr Rush says he did not support. The judicial proceedings, possible merits and remedies sought, were excluded from the briefing to councillors. He would like to assess whether this gap in information might have had relevance to the considerations of Council in consequent decisions;

(b)	as an Eastern Ward councillor, Mr Rush asserted he had “duties akin to a kaitiaki”. He mentioned that he was the descendant of an early settlor family that survived its first winter due to the kindness of local Māori, and he said that he therefore had a debt to the descendants of

1	Mau Whenua Incorporated v Wayne Thomas Mulligan & Ors [2020] NZHC 3411.

Chief Te Puni and Te Atiawa, as well as a legal obligation as a councillor to ensure the wellbeing of local Māori and their tīpuna “are not impeded by Crown or other processes”. He asserted that it was arguable that as a councillor, he had a Treaty obligation to satisfy himself that the first and second defendants in these proceedings had not, as asserted by the plaintiffs, breached their Treaty obligation;

(c)	he referred to what was said to be “recent publicity around funding perhaps being a blocker to this case being heard” and said that concerned him. He said he was keen to assess the merits himself to understand whether other funding sources might be reasonably secure; and

(d)	he asserted it would be helpful for him to “get a more fulsome picture of the proceedings in order to consider and mutually agree solution for all residents of Wellington which might bring the wider City Council portfolio and resources to the table along with private sector participants.

[7]	Mr Rush also stated that he was admitted as a barrister and solicitor and was prepared to give an undertaking to the Court not to disclose the documents or their contents publicly.

[8]	A memorandum of counsel dated 3 February 2021 was filed on behalf of Mau Whenua Incorporated who had been the plaintiffs in these proceedings until their claim was discontinued. That memorandum said that Mau Whenua Incorporated supported Mr Rush’s application and asserted that there were public interest considerations such as “the Council’s connection to the underlying dispute and the councillor’s wish to discharge his public obligations one in an informed basis” favoured access to the Court documents.

[9]	On the same day, a memorandum was filed on behalf of the first and second defendants objecting to the application. The memorandum submitted that the Rules do not provide the public with a general right of access to the pleadings in a civil proceeding, and that rr 12 and 13 of the Rules governed this application.

[10]	The memorandum referred to the requirements of r 12, which stipulates that the Court is obliged to consider the nature and reasons given for the request or objection. It was noted that these matters included the orderly and fair administration of justice, and the right to bring and defend civil proceedings without the disclosure

of matters that are commercially sensitive other than as necessary to satisfy the principle of open justice.

[11]	The memorandum referred to r 13 which it was said to require that different weightings be applied at different stages of the proceeding, namely before the substantive hearing, during the substantive hearing, and after the substantive hearing. It was submitted that because the proceedings had been discontinued, there had not been, and would never be, a substantive hearing.

[12]	The memorandum drew attention to r 13(a) which provides that in such a situation the protection of confidentiality and privacy interests, and the orderly and fair administration of justice, may require that access to documents be limited.

[13]	As to the specific grounds relied on by Councillor Rush, the first and second defendants submitted:

(a)	Before a substantive hearing, the protection of confidentiality and privacy interests and the orderly administration of justice are to be given greater weight, and the principle of open justice has less weight.

(b)	In the present case, the proceedings have been discontinued by the plaintiffs before the allegations by the plaintiffs could be tested by the Court and, as a result, the dispute between the parties will not be aired in public. Therefore the importance of public scrutiny of the proceedings is no longer required and the parties are entitled to the protection of confidentiality and privacy.

(c)	Councillor Rush has not requested the documents on behalf of the Wellington City Council, but in his personal capacity as a councillor who opposed the decision of the Council to approve the sale and lease of land owned by the Council adjoining the area of land that was subject to the proceedings. The  documents  requested  by  Councillor Rush are not relevant to that decision-making process which has been completed by the Council.

(d)	Councillor Rush has no legitimate interest in the dispute between the plaintiffs and the defendants; he is not a member of Taranaki Whanui, he is not personally affected or interested in the terms of the trust deed that was subject to the proceedings or the actions of the defendants as Trustees, and the land that was subject to the proceedings was not owned or leased by the Wellington City Council.

(e)	Considering the plaintiffs’ decision to discontinue the proceedings, Councillor Rush has no legal or moral duty to ensure the wellbeing of the members of Taranaki Whanui. The plaintiffs and the members of

Taranaki Whanui are more than capable of asserting their own rights if they consider that there has been a breach of trust.

(f)	The statement of claim contains serious allegations against the defendants which could be damaging to the commercial reputation and interests of the defendants if the document is provided to Councillor Rush. Prior to the discontinuance by the plaintiffs, the defendants vigorously defended the allegations contained in the statement of claim. Those allegations will not be tested at a substantive hearing and therefore it is submitted that the defendants’ right to protection of confidentiality and privacy should be paramount.

(g)	Councillor Rush is not seeking access to the documents in reliance upon the principle of open justice (that is, the encouragement of fair and accurate reporting of, and comment on Court hearings and decisions). Rather, Councillor Rush is seeking access to the documents to consider whether other funding sources might be reasonably secured for the plaintiffs. It is submitted that this is not a legitimate purpose to access the documents, especially when the proceedings have been discontinued by the plaintiffs.

Analysis

[14]	The principle of open justice is an important one. In Erceg v Erceg, the Supreme Court explained that:2

The principle’s underlying rationale is that transparency of Court proceedings maintains public confidence in the administration of justice by guarding against arbitrariness or partiality, and suspicion of arbitrariness or partiality, on the part of the Court. … The principle means not only that judicial proceedings could be held in open Court, accessible by the public, but also that media representatives should be free to provide fair and accurate reports of what occurs in Court.

[15]	The primary focus of the principle of open justice is therefore the entitlement of the public to see how the Court disposes of applications before it.

[16]	Consistently with the focus of the principle of open justice, the Courts have drawn a distinction between the conduct of the hearing itself and the situation that exists prior to a substantive hearing.

[17]	The Court of Appeal put it this way in the case of Greymouth Petroleum Holdings Ltd v Empresa Nacional Del Petróleo:3

2	Erceg v Erceg [2016] NZSC 135 at [2] (footnotes omitted).
3	Greymouth Petroleum Holdings Ltd v Empresa Nacional Del Petróleo [2017] NZCA 490 at [25].

… during the substantive hearing open justice has greater weight, in particular in relation to documents admitted in evidence. When a Court is engaged in hearing a dispute its workings, including documents referred to or relied on, should be open to full scrutiny by all members of the public, unless there are particular and strong reasons to the contrary. The public should be able to follow and understand the hearing process. However, prior to and after the substantive hearing, the importance of public scrutiny is less, as the Court is not hearing and resolving the dispute. Prior to the hearing there is no guarantee the case will go to hearing at all. Therefore open justice has less weight. The parties are entitled to the protection of confidentiality and privacy within reasonable limits, given that they have not at that point aired the dispute in public. After the substantive hearing the need for public scrutiny diminishes in importance as time moves on.

[18]	The critical feature of this case is that there will never be a public hearing. The plaintiffs have chosen to discontinue the proceedings. The plaintiffs made serious allegations against the defendants. The defendants strongly denied those allegations. The defendants assert that issues of commercial confidentiality arise. As the allegations made by the plaintiffs have not been tested, the Court is in no position to make any informed decision as to whether there is any basis to the allegations.

[19]	Mr Rush is not a party to these proceedings, neither is the Wellington City Council.

[20]	I reject the submission made by counsel for Mau Whenua Incorporated that “the Council’s connection to the underlying dispute and the councillor’s wish to discharge his public obligations” favour access to the documents. In respect of these proceedings, Mr Rush and indeed the Council, are in the same position as the public at large. Had the matter proceeded to trial, the situation would have been different, but the reality is that Mau Whenua Incorporated made serious allegations in proceedings which have now been abandoned.

[21]	The fact that Mr Rush, as a councillor, did not support a Council decision relating to the lease of land which adjoined land that was the subject of these proceedings is also irrelevant.

[22]	Mr Rush’s claim to have personal obligations arising from the Treaty of Waitangi has no basis. Mr Rush’s reference to claims in the statement of claim as to breaches of obligations by the first and second defendants actually illustrates why it is

not appropriate for him to have access to the pleadings, particularly for the purpose of him forming some view as to the merits of the allegations. Because the allegations were disputed and have never been tested, it would be inappropriate for anyone to attempt to come to a view as to whether they were valid.

[23]	The ground relied on by Mr Rush about the funding of this litigation has no merit for two reasons. Firstly, as the proceedings have been discontinued, whether Mr Rush might be able to obtain “other funding sources” is irrelevant. Secondly, reviewing the pleadings on the file will not inform Mr Rush in any way as to whatever issues as to funding he might be referring to.

Result

[24]	For these reasons, the application is declined.

Churchman J

Solicitors:
Russell McVeagh, Wellington for First, Second and Third Plaintiffs Brookfields Lawyers, Auckland for First and Second Defendants Dentons Kensington Swan, Wellington for Third and Fourth Defendants Crown Law Office, Wellington for Registrar-General of Land

Counsel:
M Smith, Barrister, Wellington for Applicant cc:	Enterprise Miramar Peninsula Inc