IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE	
CIV-2019-485-43
[2021] NZHC 1275	

UNDER THE	Judicial Review Procedure Act 2016 and the Animal Welfare Act 1999	
IN THE MATTER OF	the Code of Welfare: Pigs 2018 and the Animal Welfare (Care and Procedures) Regulations 2018	
BETWEEN	THE NEW ZEALAND ANIMAL LAW ASSOCIATION
First Applicant

SAVE THE ANIMALS FROM EXPLOITATION
Second Applicant	
AND	THE ATTORNEY-GENERAL
First Respondent

THE MINISTER OF AGRICULTURE
Second Respondent

THE NATIONAL ANIMAL WELFARE ADVISORY COMMITTEE
Third Respondent	

On the papers		
Counsel:	G M Coumbe QC, S M Bisley, B H Woodhouse and E L Bennett for the Applicants
N T Butler and N G Julian for first and second Respondents R L Roff for third Respondent	
Judgment:	1 June 2021	

JUDGMENT OF CULL J

THE NEW ZEALAND ANIMAL LAW ASSOCIATION v THE ATTORNEY-GENERAL [2021] NZHC 1275 [1 June 2021]

[1]	In 2020, the New Zealand Animal Law Association and Save Animals from Exploitation brought judicial review proceedings against the respondents, the Attorney-General, the Minister of Agriculture, and the National Animal Welfare Advisory Committee, challenging the lawfulness and validity of certain standards and regulations in the Code of Welfare: Pigs 2018 and the Animal Welfare (Care and Procedures) Regulations 2018. In my judgment dated 13 November 2020, I allowed the application in part, declaring that some specific regulations and minimum standards were unlawful and invalid.1

[2]	Ms Andrea Graves, a freelance writer, seeks access to copies of all evidence and submissions of the parties. Ms Graves intends to write about  this case for the NZ Listener, and has received support from the editor to do so. She seeks to enlighten readers about the practices, law, science and decision-making processes related to animal agriculture and welfare, using this case as an example of the difficulty and complexity of these issues. She states that, in order to provide as informed and balanced a view as possible, she needs as much information as possible. This is clearly an area of interest to Ms Graves, who has previously received a Doctor of Philosophy in animal behaviour and welfare.

[3]	The respondents do not oppose Ms Graves application. However, the first and second  respondents  request   that  redactions   are  made  to  exhibit  GAH-3  in   Mr Harrison’s affidavit dated 9 March 2020, to protect privacy interests. This exhibit is a warning letter sent from the Ministry for Primary Industries to the owner of a farm. The first and second respondent seek the personal information of the farm owner and officer that sent the warning be redacted.

[4]	It appears that the request for access to documents, as far as it relates to the Applicants’ documents, has been resolved informally. Thus, I am treating Ms Grave’s formal application as a request to access the evidence and submissions of the respondents only. The applicants do not object to the request by Ms Graves for access to the respondents’ documents.

1	New Zealand Animal Law Association v Attorney General [2020] NZHC 3009.

Access to Court documents – legal principles

[5]	The Senior Courts (Access to Court Documents) Rules 2017 (the Rules) provide that every person has a general right of access to the formal Court record in civil proceedings.2 However, the evidence and submissions sought by Ms Graves are not part of the formal Court record.3 Accordingly, it is at the discretion of the Court to grant or refuse a request, grant it subject to conditions, or refer the request to a Registrar for determination.4

[6]	In determining a request for access under r 11, the Judge “must consider the nature of, and the reasons for, the request” and take into account each of the following matters that are relevant:
(a)	the orderly and fair administration of justice;
(b)	the right of a defendant in a criminal proceeding to a fair trial;
(c)	the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice;
(d)	the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person;
(e)	the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions);
(f)	the freedom to seek, receive, and impart information;
(g)	whether a document to which the request relates is subject to any restriction under rule 7; and
(h)	any other matter that the Judge thinks appropriate.

[7]	These factors are neither exhaustive nor does any take primacy over the others. There is also no presumption in favour of disclosure.5 The Court must balance all

2	Senior Courts (Access to Court Documents) Rules 2017, r 8(1).
3	As defined by rule 4.
4	Rule 11(7).
5	Crimson Consulting Ltd v Berry [2018] NZCA 460, [2019] NZAR 30 at [32].

relevant factors, using its discretion and evaluation to determine the appropriate weight given to each factor.6

[8]	This is further informed by rule 13, which provides that the principle of open justice is to be accorded higher priority during the substantive hearing than at other stages in the proceeding.7 After the substantive hearing, privacy and confidential interests are to be given greater weight than during the hearing, with the principle of open justice most cogent in relation to documents that were relied on in the determination of the proceedings.8

The request

[9]	First, I consider that Ms Grave’s request complies with the content requirements contained in the Rules.9 She has sufficiently identified herself and provided specific reasons as to why such documents are sought. I note she has not proposed any conditions for her access.

The balancing test

[10]	I refer to my earlier decision regarding the application of New Zealand Pork for access to the applicants’ submissions and affidavits.10 The relevant factors to be considered remain the same, namely the principle of open justice and the freedom to seek information,11 privacy interests,12 and the orderly and fair administration of justice.13

[11]	The difference between the earlier application and that of Ms Graves is that the current application has been made following the substantive hearing process.14 This is relevant to the principle of open justice. As elucidated in Greymouth Petroleum

6	Schenker AG v Commerce Commission [2013] NZCA 114, (2013) 22 PRNZ 286, relied on in
Crimson Consulting Ltd v Berry, above n 5, at [32].
7	Rule 13(b)(i).
8	Rule 13(c).
9	In conformity with rule 11(2).
10	New Zealand Animal Law Association v Attorney-General [2020] NZHC 2376.
11	Rules 12(c), (e) and (f) and 13(c).
12	Rules 12(c), (d) and (h).
13	Rule 12(a).
14	The substantive hearing process is defined as the period from the start of a hearing determining the ultimate outcome of a proceeding until the court finishes delivering its judgment: see rule 4.

Holdings Ltd v Empresa Nacionale Del Petroleo, it is most pertinent that the public has the ability to follow and fully scrutinise court proceedings as they are happening. After the substantive hearing, the need for public scrutiny diminishes in importance.15 While recognising this, I also note a key tenet of the principle of open justice, as specified in the Rules, is to encourage fair and accurate reporting and comment on court hearings and decisions. That is the stated aim of Ms Graves’, to write an accurate and balanced article covering the cases specifically, and the law regarding animal welfare more broadly. Accordingly, I consider the interests of open justice and the freedom to seek information favour Ms Grave’s application.

[12]	However, consideration must also be given to privacy interests. As noted, the respondents are concerned about the personal information of a farmer and an individual enforcement officer contained  in  exhibit  GAH-3  to  the  affidavit  of  Mr Harrison. Under r 13, these privacy and confidentiality concerns must be given greater weight at this point in time than during the substantive hearing.

[13]	In my earlier decision, I considered that allowing access to the filed affidavits and submissions will provide far more detailed information than one would be able to gather from watching the Court hearing.16 This is not only in respect of legal submissions but also information about who has provided certain evidence on certain topics. I also observed in my earlier decision that it is important to the orderly and fair administration of justice that documents are not disclosed to third parties for ulterior motives, or be a deterrent to those who can assist in its administration by giving evidence.17

[14]	It is relevant that information sought from the respondents is not opposed by the respondents. The applicants, who opposed access to its affidavits and submissions previously, have resolved access to its material privately in this instance. This lack of opposition is a material difference between the current application and the September 2020 application, where the applicant had access to the formal Court record and the pleadings.

15	Greymouth Petroleum Holdings Ltd v Empresa Nacionale Del Petroleo [2017] NZCA 490, [2017] NZAR 1617.
16	New Zealand Animal Law Association, above n 10, at [22].
17	At [23].

Result

[15]	I therefore grant the application for access in relation to the respondents’ evidence and submissions.

[16]	I order that any personal details relating to the farm owner and the individual officer contained in exhibit GAH-3 to Mr Harrison’s affidavit are redacted and must not be published in any form.

Cull J

Solicitors:
John Miller Law, Wellington for the Applicants
Crown Law, Wellington for First and Second Respondents
Wakefield Lawyers Ltd, Wellington for the Third Respondents