It's absurd to deny MP court papers, says top judge

Murray McCully

A High Court decision blocking the National Party's access to court papers viewed by the media could create an "absurd situation", Court of Appeal judge Justice Ron Young suggested yesterday.

And fellow Appeal Court member Justice Grant Hammond suggested that the appeal by National MP Murray McCully would have to succeed.

Mr McCully yesterday appeared in the Appeal Court to contest the ruling issued by Justice John Wild.

It relates to affidavits and other papers contained in High Court files for a legal challenge to the Government's decision on the Whangamata Marina, to be heard next week.

The media were granted access to the files but Justice Wild turned down a request from the National Party research unit and then Mr McCully, its conservation spokesman, to view them as well.

The judge said National needed to prove it had a "genuine or proper interest" in the files and he could not rule out the potential they would be used for "political purposes".

"This would run roughshod over the principle that Parliament and its members should refrain from commenting on matters before the courts, which are sub judice."

Mr McCully, appearing for himself, argued the case set a dangerous precedent for MPs.

"There would not, I suggest, be a registrar in the country prepared to be very co-operative with a member of Parliament after a look at Justice Wild's ruling."

He argued that as conservation spokesman with a duty to hold the Government to account his interest in the files was genuine and it would be highly anomalous to grant the media greater access than MPs.

It could create a situation enabling the media to view the files and then have to turn to an Opposition spokesman - "the person who might be their first port of call in seeking balanced comment" - for comment on a story that would be then "restricted to offering such views as could be formed from the material that might selectively be provided ... by those media representatives".

He accepted parliamentarians should not prejudice a court inquiry.

Crown Law counsel Karen Clark, who stated that Conservation Minister Chris Carter did not have a view on the issue and she was acting for the Attorney-General, argued that Mr McCully did not provide evidence he had a genuine interest in the files.

His case was advanced "on the basis of wishing to trawl through material which had been entrusted to the High Court for examination and determination" and "on the face of it" this was not an appropriate or proper interest and was "officious" in the true sense of the word.

Questioned on whether that meant a breach would occur as a result of the application being accepted, Karen Clark argued this was irrelevant as it appeared the application itself breached "the principle of comity" - or the maintenance of proper distance between Parliament and the court.

Mr McCully would by the process of scrutinising the file make a judgment which "then is usurping the authority of the court".

But Justice Young said this would be so only if the MP "then goes out and expresses his conclusions".

He continued: "Aren't we going to be left with an absurd situation, then, that the media are able to publish all of this material? Mr McCully is able to read that and to comment on it but can't get access? I mean, that just seems absurd."