ASB Bank Limited v Commissioner of Inland Revenue

[2015] NZHC 2177

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-004038 [2015] NZHC 2177

BETWEEN

ASB BANK LIMITED

Plaintiff

AND

COMMISSIONER OF INLAND REVENUE

Defendant

Hearing:	On the papers
Judgment:	10 September 2015

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 10 September 2015 at 11.30 am

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………...

ASB BANK LTD v COMMISSIONER OF INLAND REVENUE [2015] NZHC 2177 [10 September 2015]

[1]      Gareth  Vaughn  has  sought  permission  to  search  the  Court  file  of  this proceeding. The parties abide the decision of the Court.

[2]      Mr Vaughn  was  granted  permission  to  search  the  Court  file  (with  some limitations) on two previous occasions.   His present application (like the previous applications) falls to be determined under r 3.13 of the High Court Rules.   Under

3.16 there are a number of factors that need to be taken into account in determining such a request.  These were referred to in Winkelmann J’s previous decision granting Mr Vaughn permission to search the Court file and it is unnecessary to do so again here.1

[3]      When Mr Vaughn was last granted access in October 2014 the proceedings were still at an interlocutory stage.  They were discontinued before trial.  The Court file only contains three further documents filed by the parties, two joint memoranda of counsel and a notice of discontinuance.2

[4]      Whilst abiding the decision of the Court the ASB has raised for consideration the distinction drawn in past cases between access to pleadings and access to other material, with the principle of open justice having less force at the interlocutory stage than at the substantive hearing stage.   In Hawkes Bay Regional Council v Herbert Construction Co Limited Simon France J refused an application where the proceedings  had  been  discontinued  at  a  relatively  early  stage,  emphasising  the orderly administration of justice, which is one of the factors for consideration under

r 3.16. 3     He considered that early resolution of claims are to be encouraged and

when that occurs weight should be given to protecting defendants from harm that could ensue from the disclosure of untested allegations.

[5]      Simon France J’s approach was undoubtedly right.   However,   that   case   is distinguishable from the present case in it was “rather a routine commercial dispute” about building construction.  I accept that the present case carries a greater level of

public interest.  I consider that there is sufficient public interest to justify Mr Vaughn

1 ASB Bank Ltd v Commissioner of Inland Revenue [2014] NZHC 2391.

2      The ASB also filed opening submissions in anticipation of the hearing but these were returned to counsel upon the discontinuance of the proceedings.   The Commissioner was not required to respond to the submissions.

3      Hawkes Bay Regional Council v Herbert Construction Co Limited [2015] NZHC 1060.

being entitled to search the file in relation to the memoranda of counsel and the notice of discontinuance and direct that he be granted access to the file in relation to material filed after 1 October 2014; the existing limitations imposed in previous

orders remain in place.

P Courtney J