ASB Bank Limited v Commissioner of Inland Revenue

[2014] NZHC 2391

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-4038 [2014] NZHC 2391

IN THE MATTER OF

the Tax Administration Act 1994

BETWEEN

ASB BANK LIMITED Plaintiff

AND

COMMISSIONER OF INLAND REVENUE

Defendant

Hearing:	On the papers
Judgment:	1 October 2014

JUDGMENT OF WINKELMANN J

[on application to access court documents]

This judgment was delivered by me on 1 October 2014 at 2.15 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

[1]      Mr Gareth Vaughn of interest.co.nz has applied for access to the Court file in this proceeding “to follow up on any developments in the case [since he] accessed the statements of claim and defence last year”.

[2]      The application is to be considered under r 3.13 of the High Court Rules. There is  no  presumption  of  access.    In  deciding  whether  to  grant  access  I am required to considered the factors enumerated in r 3.16, which provides:

3.16     Matters to be taken into account

In determining an application under rule 3.13, or a request for permission under rule 3.9, or the determination of an objection under that rule, the Judge or Registrar 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)      the orderly and fair administration of justice:

(b)       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:

(c)       the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, court hearings and decisions:

(d)      the freedom to seek, receive, and impart information:

(e)       whether  a  document  to  which  the  application  or  request relates is subject to any restriction under rule 3.12:

(f)       any other matter that the Judge or Registrar thinks just.

[3]      Mr Vaughn seeks material that has been filed in this Court with respect to interlocutory procedures.   Neither party opposes the granting of access, and both abide the decision of the Court.  ASB only objects to access being granted to one particular document, namely an affidavit dated 31 January 2014 in support of an application for discovery.

[4]      As counsel for the ASB submits, the Courts have identified that the principle of open justice has less relevance during the interlocutory stage when it is not clear that the material filed in the Court file will ultimately be in play at the substantive

hearing.1    This consideration is particularly strong in respect of material which has not yet been referred to in open Court.  Interlocutory applications will generally be heard in chambers so that the public are excluded.  Although media may be present, they are only entitled to report upon the result of the proceedings, and not (without leave of the Court) upon argument or material referred to during the hearing.  It is for these reasons that access to documents filed in respect of interlocutory applications will frequently be declined.

[5]      Nevertheless I weigh in favour of granting access the absence of opposition by either party (subject to ASB’s proviso) and also the extent of the public interest in the material to which access is sought. As Mr Vaughn says, this proceeding concerns a substantial amount of potential tax and involves one of New Zealand’s large banks.

[6]      In relation to the proviso that ASB adds, I accept its submission that the granting of access to the particular affidavit may create an unbalanced view of the proceedings  at  this  point.    The  affidavit  annexes  detailed  material  arguing  the position from one party’s point of view.   There is no counterbalancing detailed response putting forward the other parties’ contentions in reply.

[7]      For these reasons, Mr Vaughn is granted access to the file except for the affidavit dated 31 January 2014 of Bevan Richard Miles filed in support of ASB’s

application for discovery.

1      See, for example, Titchener v Attorney-General (1990) 3 PRNZ 60 (HC).