Non-parties can examine court records in tax cases

Non-parties to tax cases will have the ability to search court records after a High Court ruling on the issue.

The decision is another outcome of the long running Inland Revenue case against the Bank of New Zealand, which was settled late last year.

As a kind of sidebar to the case, Australian law firm Maddocks applied to the High Court for the right to "search, inspect and copy statements and transcripts of evidence of eight expert witnesses, forming part of the court file, in the BNZ 'structured finance' case".

The ruling is significant because it is the first under new rules adopted by the courts last year.

Previously, Justice Wild noted in his decision, the emphasis was on the reason the applicant had for wanting to obtain the court records.

Applicants had to "first satisfy the court that he or she had a genuine and proper interest in accessing the court documents and once made out, the court had to then have regard to whether other considerations may come into play."

The new rules replace that with a move to the emphasis on the nature of the information being requested, with a presumption in favour of disclosure.

Justice Wild also noted in his judgement that the change towards a disclosure being a paramount consideration for the courts is that it allows applicants acting in their own personal interest, rather than in the public interest, to ride on the coat-tails of "open justice".

In other jurisdictions where there is a presumption in favour of disclosure there is also the ability for the judge to consider whether the applicant is seeking the information for personal advantage or in the public interest.

Law firm Minter Ellison, in a tax bulletin, says the decision "can only be described as a bit of an indignity for the taxpayers," and that "in essence, the Australian law firm was accessing material and benefiting from the substantial expenditure the taxpayers and the Commissioner incurred".

Neither Inland Revenue nor the Bank of New Zealand opposed the application.

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