Berry v Crimson Consulting Ltd - [2017] NZHC 3026

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-2933 [2017] NZHC 3026

BETWEEN
SAMANTHA MARIE BERRY

Plaintiff

AND

CRIMSON CONSULTING LIMITED Defendant

Hearing: On the papers

Appearances:

B OʼCallahan and D Yan for Plaintiff
T J P Bowler for Defendant

Judgment:

7 December 2017

JUDGMENT OF PALMER J

This judgment is delivered by me on 7 December 2017 at 2.30 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors

BERRY v CRIMSON CONSULTING LTD [2017] NZHC 3026 [7 December 2017]

K3 Legal Limited, Auckland
Neilsons Lawyers Limited, Auckland

Summary

[1] The New Zealand Herald and the National Business Review (NBR) apply to access the court file of this proceeding which settled before reaching the close of pleadings date. I consider the defendant’s arguments about commercial sensitivity of information on the file could be managed by redactions in the material accessed. But the early stage at which the case settled means access to untested allegations, which are disputed, could give a misleading impression of the issues and facts involved in the proceeding. To satisfy the principle of open justice I order that only redacted versions of the statements of claim and defence be made available to the Herald and the NBR.

The proceeding and application

[2] The Statement of Claim initiating the proceeding was filed on 14 November

2016. The Statement of Defence was filed on 16 December 2016.

[3] In a minute of 26 June 2017, Associate Judge Bell declined a request by the NBR to inspect the court file but left it open for a fresh application to be made after the close of pleadings date, on 11 December 2017. The Judge stated, as a general rule, during and before the substantive hearing stage there is a trend for preferring the orderly and fair administration of justice over the principle of open justice and the freedom to seek, receive and impart information. He stated “[d]uring the interlocutory stages the ordinary and fair administration of justice is enhanced by allowing the parties to conduct their litigation without scrutiny by third parties.”1 He noted the parties still had the opportunity to explore settlement before the close of pleadings date. He cited the existence of qualified privilege for a report of pleadings only after the close of pleadings date under clause 5 of Part 1 of Schedule 1 of the Defamation
Act 1992.

1 Berry v Crimson Consulting Ltd HC Auckland CIV-2016-494-2933, 26 June 2017 (minute of
Associate Judge R M Bell).

[4] On 17 October 2017, in Minute No 2, I denied an application by Crimson Consulting for orders that the Court record be permanently sealed and that no third party is granted access to the file or record. I stated all I had from the defendant was a general assertion of commercial sensitivity without indication of what the sensitivity was or which documents it concerned. I ordered that, if there are any requests to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NZHC 3026
Decision Date: 7 December 2017

CaseChat Overview and Summary

In the case of Berry v Crimson Consulting Ltd, the New Zealand Herald and the National Business Review sought access to the court file of a proceeding that was settled before the close of pleadings. The plaintiff, Samantha Marie Berry, commenced proceedings against Crimson Consulting Limited, and the case was settled prior to the close of pleadings on 11 December 2017. The legal issues before the court were whether the media could access the court file, and if so, what parts of the file could be redacted to protect the commercial sensitivity of the information. The court considered the principle of open justice and the protection of commercial information in its reasoning. The court found that the early stage of the proceedings and the untested allegations could give a misleading impression if the entire court file was released. However, the court also found that transparency of court proceedings was important to maintain public confidence in the administration of justice. The court decided that only redacted versions of the statements of claim and defence should be made available to the media to satisfy the principle of open justice while protecting the commercial sensitivity of the information. The final orders were that the statements of claim and defence be redacted for commercially sensitive information and released to the media. The parties were given three working days to comment on the redactions.

Orders