Bambury v Jensen

[2013] NZHC 3071

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-004230 [2013] NZHC 3071

UNDER  The Property Law Act 2007

IN THE MATTER OF       the equitable jurisdiction of the High

Court

BETWEEN  STEPHEN RONALD BAMBURY Plaintiff

ANDANDREW JENSEN Defendant

Hearing:                   15 November 2013 (on papers)

Appearances:           Mr A Taylor, Sydney Morning Herald for access to file

Ms S Armstong for plaintiff
Mr S C Langton for defendant

Judgment:                20 November 2013

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE [On access to Court file]

This judgment was delivered by me on

20.11.13 at 3 pm, pursuant to

Rule 11.5  of the High Court Rules.

Registrar/Deputy Registrar

Date……………

BAMBURY v JENSEN [2013] NZHC 3071 [20 November 2013]

[1]      There is before the Court an application pursuant to r 3.13 of the High Court Rules to permit the applicant, Mr Andrew Taylor of the Sydney Morning Herald to obtain access to the statement of claim and other documents lodged in this proceeding.  The grounds upon which the applicant who is a journalist seeks access are that the matter involves a New Zealand-based artist plaintiff and a defendant who has a gallery business in Sydney.   Mr Taylor opines that the matter would be of interest to readers in both Sydney and New Zealand given that both parties are well- known figures in the art world.  He says that the matter also involves issues of public interest relating to how commercial galleries operate, the dealings with artists and how this affects consumers of art.

[2]      As the heading to r 3.13 indicates the rule is concerned with application for permission to access documents, court files, or formal court records other than at the hearing stage.   The rule in its terms authorises the making of orders of the kind which Mr Taylor seeks.  The decision is however a discretionary one which requires the balancing of factors which will vary from case to case.

[3]      Neither of the parties disputed that the Court has authority to grant access to the proceedings which have been commenced.

[4]      The nub of the dispute between the parties is that the plaintiff who is an artist alleges that the defendant who operates a gallery breached the terms of an agreement between the two parties by retaining completed works of the plaintiff when he was note entitled to, failing to pay commissions owed and breaches of other obligations.

[5]      The defendant denies any breach, has pleaded affirmative defences and has counter-claimed for alleged unpaid commissions which he says the plaintiff owes him.

[6]      The position which the plaintiff takes on the application is that while it may be one which could be properly granted at this stage it is premature to do so.  The plaintiff says that the pleadings are not yet completed and that the plaintiff has yet to file an answer to affirmative defences and a defence to the counter-claim.   The

plaintiff’s counsel, Mr Langton, says that the plaintiff was likely to consent to the application but requests that the application be adjourned for 15 working days.  By that time the anticipated pleadings which I have mentioned ought to have been filed and it may be that the plaintiff will have filed an amended statement of claim.

[7]      Counsel submitted that the “open justice” principle is not engaged yet and only becomes engaged in respect of commentary on court hearings and decisions. He further submitted that the absence of the scrutiny of the proceedings pending completion of the proceedings will assist in the orderly and fair administration of justice between the parties1  and that the freedom to seek and impart information is

not been ousted by the adjournment but just delayed for good reason.2

[8]      The defendant does not oppose the making of an order and accepts that Mr Taylor ought to have all the current proceedings so that he can have a full picture of the matters in dispute.  However, counsel for the defendant, Ms S A Armstrong submits that the current court documents contain information which is commercially sensitive from the perspective of the defendant.   Examples of information of this kind include details regarding price, commission and discount arrangements, names of third parties who made purchases of art works from the  plaintiff and or the defendant.   Further it is said that such commercially sensitive information, as it is described, is not essential for Mr Taylor to have in order to understand the dispute. Conditions are therefore proposed to be attached to the grant of consent to protect to avoid any harm to the defendant.

[9]      I accept that the matters which the defendant has raised are legitimate ones. Rule 3.16 requires the Judge to consider a number of matters that are relevant to an application including:

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

[10]     To meet the concerns of both parties I make the following directions:

1 Rule 3.16(a).

2 Rule 3.16(b)

a)        There will be an order granting Mr Taylor access to the Court file.

That order is not to take effect before 10 December 2013;

b)The parties are to confer prior to 10 December in order to settle agreed redactions from all pleadings that are on the Court file and which will be available for access after 10 December 2013.  They will then file redacted copies of the pleadings marked “redacted for confidentiality” by 10 December 2013;

c)       The  applicant  is  to  be  provided  with  the  redacted  copies  of  the pleadings;

d)The unredacted copies of the pleadings on the Court file are to be marked “confidential” and are not to be disclosed to a non-party without further order of the Court;

[11]     I grant  leave to  either  party to  apply for any required  further directions although I would expect that through cooperation and common sense any difficulties

can be suitably resolved between the parties by agreement.

J.P. Doogue

Associate Judge