42Go Limited v 5 Wakeman Drive Limited

[2025] NZHC 1056

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-716

[2025] NZHC 1056

BETWEEN

42GO LIMITED

Plaintiff

AND

5 WAKEMAN DRIVE LIMITED

First Respondent

J D STEVENSON INVESTMENTS LIMITED

Second Defendant

JOSHUA DAVID STEVENSON

Third Defendant

Hearing:	On the Papers
Counsel:	P Shanahan-Pinker and P Napier for Plaintiff J Moss for Defendants
Judgment:	5 May 2025

JUDGMENT OF MANDER J

This judgment was delivered by me on 5 May 2025 at 4.20 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date:     .

42GO LTD v 5 WAKEMAN DRIVE LTD [2025] NZHC 1056 [5 May 2025]

Introduction

[1]        Pursuant to the Senior Courts (Access to Court Documents) Rules 2017 (the Rules), a journalist, Liz McDonald of the Press seeks access to Court documents in these proceedings. Ms McDonald requests access to:

(a)the endorsed notice of proceeding;

(b)statement of claim;

(c)affidavit in support;

(d)without notice application for directions; and

(e)        minute of Associate Judge Paulsen (unparticularised with no date). (the application).

[2]        Ms McDonald is writing about the business activities of Joshua Stevenson, who is the director of both defendant companies. She says her writing is focused in particular on a large number of unpaid debts, complaints from clients, and alleged breaches of the Companies Act 1993.

[3]        The defendants object to the application. The primary reason advanced in support of this opposition is that at the time of Ms McDonald’s request for access, they have not yet filed their defence. Mr Moss for the defendants submitted that any release of the file for media and reporting purposes at this early stage would be one sided, unfair, imbalanced and contrary to open justice and fair reporting, further noting that the defendants intend on filing evidence supporting a complete defence to the claim. Mr Moss additionally submitted that the application fails to disclose any good reason in the circumstances to release the file at this early stage of the proceeding.

[4]        Since Mr Moss’ initial objection, the defendants have now filed their defence (on 28 March 2025), in a document titled “Notice of appearance under protest to jurisdiction for the first to third defendants”. To summarise, the defendants protest the

Court’s jurisdiction to hear and determine this proceeding until certain contractual requirements concerning alternative dispute resolution have first been met. For context, the Joint Venture Agreement to which the parties were subject contained clauses prescribing the procedure that must be followed in the event of a “major dispute”. It is submitted that such procedure, which requires the parties to use their best endeavours to resolve the matters in dispute by first, resorting to good faith negotiations and secondly, mediation, was not followed. It is only if the issues that have transpired between the parties come within the meaning of “major dispute” that those contractual steps are triggered.

Discussion

[5]        Ms McDonald is not party to these proceedings. However, she has the right to access the “formal court record” under r 8(1) of the Rules. She is permitted access to search, inspect, or copy under the supervision of an officer of the court1 any minute of Associate Judge Paulsen, as that comes within the definition of “formal court record”.2

[6]        The other documents sought by Ms McDonald generally fall outside of that definition, and accordingly fall for determination under rr  11–13  of  the Rules.3 Rule 11 provides:

11Any person may ask to access documents

…

(2)A person may ask to access any document by providing the Registrar of the relevant court registry with a letter, an email, or any other written form of request that—

(a)identifies the person and gives the person’s address; and

(b)sets out sufficient particulars of the document to enable the Registrar to identify it; and

(c)gives reasons for asking to access the document, which must set out the purpose for which the access is sought; and

1      Senior Courts (Access to Court Documents) Rules 2017, r 4, definition of “access”.

2      Senior Courts (Access to Court Documents) Rules, r 4, definition of “formal court record”, para (d).

3      Rule 11(1).

(d)sets out any conditions of the right of access that the person proposes as conditions that he or she would be prepared to meet …

…

(7)A Judge may—

(a)grant a request for access under this rule in whole or in part—

(i)without conditions; or

(ii)subject to any conditions that the Judge thinks appropriate; or

(b)refuse the request; or

(c)refer the request to a Registrar for determination by that Registrar.

[7]        In making a determination under r 11, the Judge must consider the nature of, and reasons given for, the request.4 The Judge must also take into account the following matters where relevant:

12Matters to be considered

…

(a)the orderly and fair administration of justice:

(b)the right of a defendant in a criminal proceeding to a fair trial:

(c)the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice:

(d)the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person:

(e)the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions):

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

(g)whether a document to which the request relates is subject to any restriction under rule 7:

4      Senior Courts (Access to Court Documents) Rules, r 12.

(h)any other matter that the Judge thinks appropriate.

[8]        Because this proceeding is currently at the pre-trial stage, r 13(a) applies. Accordingly, “the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited”. However, as previously noted, the defendants have now filed their defence. I consider the force of Mr Moss’s argument that any reporting of the proceedings would be one sided has been reduced. Indeed, I consider that fair and balanced reporting can be achieved by Ms McDonald making it properly clear that the proceedings are opposed, noting the defendant’s contention that the contractual processes must first be followed. As remarked by Duffy J in The Company (in liq) v The Director, in an application not too dissimilar from the present:5

The laws of defamation and contempt, particularly while court proceedings are live, are usually sufficient to ensure fair balanced reporting and to discourage reporting that might intrude into the merits of the claims or defences of the parties concerned or otherwise damage the reputation of the parties.

[9]        Ms McDonald would be assisted in ensuring fair and balanced proceedings by also having access to the document setting out the defendants’ position. I accept that document does not substantially engage in the merits of the plaintiff’s claim, but it does articulate the defendants’ position in respect of the current proceeding.

[10]      Mr Moss’s further ground of opposition is his submission that Ms McDonald’s application fails to disclose any good reason in the circumstances to release the file at this early stage. However, the news media plays an important role in reporting proceedings, particularly where they concern matters of public interest.6 This case has attracted the interest of Ms McDonald and the Press because of its subject matter. There appears to be at least some public interest in the case—two New Zealand-based companies to a joint venture are involved in litigation, and 42GO has allegedly not been repaid a loan of $540,000 it made to the first defendants. Mr Moss’ concerns, noted at [3], are also required to be balanced against the principle of open justice.

5      The Company (in liq) v The Director [2019] NZHC 825 at [25].

6      Scenic Circle Hotel Group Ltd v West Coast Regional Council [2019] NZHC 2326 at [7].

[11]      I consider that Ms McDonald should be able to access the documents required to report on this matter. It is not apparent that privacy and confidentiality concerns are to the fore in this case, and significant weight is to be afforded to open justice.

Decision

[12]      On balance, I find that Ms McDonald may access the documents listed at [1(a)] of this judgment on the condition that the documents are not to be disseminated beyond her or the Press. It would also be appropriate for Ms McDonald to be provided access to the document titled “Notice of appearance under protest to jurisdiction for the first to third defendants” in order to ensure any review of the proceeding or publication about it fairly reflects the defendants’ opposition and current position, notwithstanding that document was not originally sought by Ms McDonald, it having come into existence since her application.

[13]      To  that  end,  before  disposing  of  the  application,  I  would   encourage  Ms McDonald to file an additional application seeking access to this document.     Mr Moss is entitled to be heard further in response to that request, if he so wishes.

Solicitors:

K3 Legal Limited, Auckland

Shaun Cottrell Law, Christchurch