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• Statutes Where Express Provision Is Made For Private Appeals
• Statutes That Provide That All Related Proceedings Are Private
• Statutes Where No Provision Is Made For Private Appeals

APPENDIX C

STATUTES WHERE EXPRESS PROVISION IS MADE FOR PRIVATE APPEALS

Children, Young Persons, and Their Families Act 1989

B1 Section 166 of the Act places significant restrictions on those permitted to be at the hearing of any proceedings in a Family Court under the Act. Section 329 places similar restrictions on hearings in a Youth Court. Sections 346 and 357 provide that the restrictions in sections 166 and 329 carry through to appeals from a Family Court and Youth Court respectively.

Bail Act 2000

B2 The Act provides:

18 Bail hearing may be in private

A court may, having regard to the interests of the defendant or any other person and to the public interest, order that the whole or any part of an application for bail or an appeal against a bail decision be heard in private.

19 Court may prohibit publication of matters relating to hearing

A court may make an order prohibiting the publication of any report or description of the hearing or any part of the hearing including, without limitation, all or any of the following:

(a) the identity of the defendant applying for bail:

(b) the decision of the court on the application:

(c) the conditions of bail, if bail is granted.

Property (Relationships) Act 1976

B3 The relevant provisions state:

35 Proceedings may be in private

(1) Any application or appeal under this Act shall be heard in private if [either spouse or de facto partner] so desires it.

[(2) Subject to subsection (1) of this section, where any application is made under this Act to a District Court, the provisions of section 159 of the Family Proceedings Act 1980 shall apply.]

35A Restriction of publication of reports of proceedings

(1) No person shall publish any report of proceedings under this Act (other than criminal proceedings) except with the leave of the Court which heard the proceedings.

Disputes Tribunals Act 1988

B4 Section 39(1) provides that all Tribunal proceedings are to be held in private. Section 53(1) of the Act says:

53 Powers of District Court Judge on appeal

...

(3) An appeal under this section shall be heard by a District Court Judge in chambers and, subject to this Act and to any rules made under this Act, the procedure at any such hearing shall be such as the Judge may determine.

What constitutes a hearing “in chambers” and the publicity attendant to it, is not defined in either the District Courts Rules 1992 or the High Court Rules. There is no express requirement that a hearing in chambers be conducted in private; although customarily such hearings are conducted privately.²⁴⁵ Decisions made in chambers may be published.²⁴⁶

STATUTES THAT PROVIDE THAT ALL RELATED PROCEEDINGS ARE PRIVATE

Adoption Act 1955

B5 Section 22 of the Act says:

22 Applications not to be heard in open Court

No application under this Act shall be heard or determined in open Court, and no report of proceedings under this Act shall be published except by leave of the Court which heard the proceedings.

The Act also restricts the inspection of adoption records.

The question of what is meant by the term “application” for the purposes of section 22 was considered in Re E.²⁴⁷ That case concerned an application for writs of mandamus and certiorari directed at a magistrate in respect of adoption proceedings. It was conceded by counsel that section 22 expressly contemplated appeals, being proceedings contemplated by the Adoption Act. But, counsel doubted whether proceedings in the High Court for prerogative writs came within the prohibition. FB Adams J held that the applications were covered by section 22, holding that any proceedings in the High Court “necessarily incidental to adoption proceedings” should be held in private.²⁴⁸

Family Proceedings Act 1980

B6 Section 159(2) and (4) provide:

159 Conduct of proceedings

(2) No person shall be present during the hearing of any proceedings under this Act (other than criminal proceedings or proceedings under section 130 of this Act) except—

(a) Officers of the Court:

(b) Parties to the proceedings and their barristers and solicitors:

(c) Witnesses:

(d) Any other person whom the Judge permits to be present.

...

(4) Notwithstanding subsection (2) of this section,—

(a) Where proceedings under the [Property (Relationships) Act 1976] are heard together with proceedings under this Act, the whole of the proceedings shall be heard in private if a party to the proceedings so requests; and

(b) Where proceedings under the [Property (Relationships) Act 1976] are heard together with proceedings under this Act, and no party to the proceedings requests that they be heard in private, the provisions of subsection (2) of this section shall, unless the Court otherwise determines, apply as if the whole of the proceedings were proceedings under this Act.

...

The words “the hearing of any proceedings under this Act” seem to be the same in all material respects to those in the Adoption Act. So appeals appear to be covered by s 159(2).

Guardianship Act 1968

B7 The relevant parts of the Act state:

27 Proceedings not open to public

(1) No person shall be present during the hearing of any proceedings (other than criminal proceedings) under this Act except—

(a) Officers of the Court:

(b) Parties to the proceedings and their barristers and solicitors:

(c) Witnesses:

(d) Any other person whom the Judge permits to be present.

(2) Any witness shall leave the courtroom if asked to do so by the Judge.

(3) Nothing in this section shall limit any other power of the Court to hear proceedings in private or to exclude any person from the Court.

27A Restriction of publication of reports of proceedings

(1) No person shall publish any report of proceedings under this Act (other than criminal proceedings) except with the leave of the Court which heard the proceedings.

...

(3) Nothing in this section shall limit—

(a) The provisions of any other enactment relating to the prohibition or regulation of the publication of reports or particulars relating to judicial proceedings; or

(b) The power of any Court to punish any contempt of Court.

(4) Nothing in this section shall apply to the publication of any report in any publication that—

(a) is of a bona fide professional or technical nature; and

(b) is intended for circulation among members of the legal or medical professions, officers of the Public Service, psychologists, advisers in the sphere of marriage counselling, or social welfare workers.

The relevant parts of the legislation seem identical to those in the Adoption Act 1955, and so appeals appear to be covered by section 27(1).

Domestic Violence Act 1995

B8 Section 83 of the Act provides:

83 Conduct of proceedings

(1) No person may be present during the hearing of any proceedings under this Act (other than criminal proceedings) except the following persons:

(a) Officers of the Court:

(b) The parties to the proceedings:

(c) Any lawyer representing any party to the proceedings:

(d) Any lawyer appointed pursuant to section 81 of this Act in respect of the proceedings:

(e) Where, pursuant to any provision of this Act, any person is bringing or defending the proceedings on behalf of another person,—

(i) The person so bringing or defending the proceedings:

(ii) The person on whose behalf the proceedings are so brought or defended:

(f) Witnesses:

(g) Any person who is nominated by the applicant for a protection order or by a protected person in accordance with subsection (2) of this section:

(h) Any other person whom the Judge permits to be present.

(2) For the purposes of any proceedings to which this section applies, any party to the proceedings (being an applicant for a protection order or a protected person) may nominate a reasonable number of persons (being members of his or her family, whanau, or family group, or any other person) to attend any hearing of those proceedings for the purpose of providing support to that person.

(3) Any witness must leave the courtroom if asked to do so by the Judge.

(4) No person present in the courtroom pursuant to subsection (1)(g) of this section is entitled to be heard at the hearing, and the Court may exclude any such person from the hearing at any time.

(5) Nothing in this section limits any other power of the Court to hear proceedings in private or to exclude any person from the Court.

The section is slightly different from the preceding provisions, but again contains the words “hearing of any proceedings under this Act” which seem materially indistinct from those in the Adoption Act.

Alcoholism and Drug Addiction Act 1966

B9 Section 35 of the Act states:

35 Legal proceedings

(1) Every application made to a Court or a Judge or a [District Court Judge] under this Act shall be heard and determined in private.

(2) Every person who is the subject of any such application shall be entitled to be heard and to give and call evidence and may be represented by a solicitor or counsel.

(3) No Court fees shall be payable in respect of any such application.

The determination of an application under section 9 of this Act may be adjourned in accordance with the provisions of [section 23 of the Mental Health Act 1969] which section shall apply with such modifications as are necessary, but this subsection shall not limit any other power of the Court, Judge, or [District Court Judge] to adjourn the determination of the application.

STATUTES WHERE NO PROVISION IS MADE FOR PRIVATE APPEALS

Taxation Review Authorities Act 1994

B10 Section 16(4) of the Taxation Review Authorities Act 1994 provides:

16 Hearing of objections by an Authority

...

(4) The hearing of an objection [or a challenge] before an Authority shall not be open to the public.

Section 16(4) refers only to proceedings before the Authority. While, in Commissioner of Inland Revenue v Dick,²⁴⁹ Glazebrook J held that appeals should proceed under Part X of the High Court Rules²⁵⁰ Her Honour did not address the question whether it was appropriate for the appeal to be heard in private.

The High Court also deals with taxation issues under the Case Stated procedure in Part XI High Court Rules; see also Part 8 Tax Administration Act 1994. These procedures have no equivalent rule corresponding to rule 718(7) of the High Court Rules.

There is conflicting authority on questions of confidentiality in this context. In Trustees of the Auckland Medical Aid Trust v Commissioner of Inland Revenue²⁵¹ Chilwell J opined that confidentiality should prevail for two reasons. First, a taxpayer should not be prejudiced because he or she chose to have a point of law determined in the High Court rather than the Taxation Review Authority; second, preservation of secrecy is a basic policy underlying New Zealand’s tax legislation.²⁵² But, in P v Commissioner of Inland Revenue²⁵³ Neazor J took a contrary approach. In Neazor J’s view the principle of open justice prevailed except to the extent that personal and business details could be suppressed if they were not central to an understanding of the case.²⁵⁴