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Pike River ruling could change the course of justice

28 Apr 2023

| Author: Fiona Wu

Senior Courts Act 2016 – Senior Courts (Access to Court Documents) Rules 2017 – Evidence Act 2006 – application to access court documents – judicial review – ‘settlement’ privilege and without prejudice privilege – Ombudsman investigation under Official Information Act 1982 – transparency and accountability outweighs privilege interests – interest of justice – application granted

Re Harder (No 2) [2023] NZHC 620 per Mallon J

Christopher Harder, a former lawyer, applies for access to the High Court file in the judicial review of WorkSafe New Zealand’s decision to withdraw charges against Peter Whittall, then Chief Executive Officer of Pike River Coal Ltd (PRCL), arising from the Pike River coal mine tragedy in 2010, following a voluntary reparation payment made by PRCL.

The judicial review (Osborne v Ministry of Business, Innovation and Employment, reported as Osborne v WorkSafe New Zealand [2015] NZHC 2991) initially found no wrongdoing by WorkSafe, however, the Supreme Court overturned this on appeal, finding that the promise not to prosecute in relation for valuable consideration was unlawful (Osborne v Worksafe New Zealand [2017] NZSC 175).

The background to Harder’s application is a request made to WorkSafe under the Official Information Act 1982 for information about the legal advice provided by the then Solicitor-General to WorkSafe about the decision not to prosecute. WorkSafe declined the request and its decision was upheld by the Ombudsman. Since then, Harder has sought access to information that would support his submissions requesting the Ombudsman to reconsider his decision.

Summary 

Harder seeks “full access” to the High Court file. Re Harder (No.2) follows on from an earlier judgment (Re Harder [2022] NZHC 3615) in which Mallon J granted access to some documents but directed further inquiries.

WorkSafe claims “settlement privilege” or “without prejudice privilege” over these documents on the basis that they relate to counsel-to-counsel negotiations (essentially “plea discussions”), and their disclosure would undermine the administration of justice and discourage parties from making frank disclosures when exploring settlement or resolution of proceedings.

Harder accepts the documents are privileged but argues that they fall under an exception carved out by s 57 of the Evidence Act whereby a court may order disclosure where “it would be contrary to justice” to withhold the documents.

Decision

Harder already has access to some of the documents over which privilege is claimed.  The issue with partial disclosure is that it risks giving “a wrong or misleading impression about what has not been disclosed”.  The remaining documents raise no new issues that require a rebalancing of competing interests.  In those circumstances, “transparency through open justice outweighs the factors that point against disclosure of the documents”.

Applicable principles – disclosure of privileged documents under s 57 of the Evidence Act – legal privilege and rights of the defendant – countervailing factors of transparency and accountability – balancing competing public interests.

Held:  Application granted.

Osborne v Worksafe New Zealand

Re HARDER BC202264147 (2)

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