BETWEEN CPB CONTRACTORS PTY LIMITED First Plaintiff AND HEB CONSTRUCTION LIMITED Second Plaintiff AND NEW ZEALAND TRANSPORT AGENCY, WAKA KOTAHI First Defendant AND WELLINGTON GATEWAY PARTNERSHIP NO 2 LP Second...

[2024] NZHC 989

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-573

[2024] NZHC 989

BETWEEN

CPB CONTRACTORS PTY LIMITED

First Plaintiff

AND

HEB CONSTRUCTION LIMITED

Second Plaintiff

AND

NEW ZEALAND TRANSPORT AGENCY, WAKA KOTAHI

First Defendant

AND

WELLINGTON GATEWAY PARTNERSHIP NO 2 LP

Second Defendant

AND

CIMIC GROUP LIMITED

Third Counterclaim Defendant

Hearing:

On the papers

Appearances:

Plaintiff in person

M E Casey KC, D R Bigio KC, T J Lindsay and T P Westaway for first and second Plaintiffs

M G Colson KC, K J Dobbs and J Brown for first Defendant S Price and S Thompson for second Defendant

Judgment:

30 April 2024

JUDGMENT OF CHURCHMAN J

Background

[1]    The solicitors acting for HDI Global SE (HDI) have applied under  the  Senior Courts (Access to Court Documents Rules) 2017 (the Rules) to access the pleadings in these proceedings.

CPB CONTRACTORS PTY LIMITED & HEB CONSTRUCTION LIMITED v NEW ZEALAND TRANSPORT AGENCY WAKA KOTAHI [2024] NZHC 989 [30 April 2024]

[2]    The reason for the application is that HDI (which is the Australian branch of a German entity and is the insurer of parties who are defendants in related proceedings in the Supreme Court of New South Wales, proceedings 2022/00307374). Access is requested in these proceedings so that the insurer may assess whether the subject matter and allegations raised bear on the subject matter  and  allegations  in  the  New South Wales (NSW) proceedings. The application seeks access to “all filed pleadings including the statement of claim, defence and reply”.

[3]    The application is opposed by the parties to these proceedings, (other than Waka Kotahi who abide the decision of the Court).

[4]The grounds for the opposition are:

(a)The application is premature.

(b)The New Zealand courts were reluctant to permit access to overseas parties, particularly where the reasons for access are only articulated in a vague matter.

(c)HDI has not established how or why the pleadings in these proceedings are relevant to the NSW proceedings.

(d)This application is just a “fishing exercise”.

Analysis

[5]    These proceedings relate to the construction of the Transmission Gully Motorway. The proceedings are at a relatively early stage having only been commenced in September 2023. Some parties are yet to file their defence and counterclaims.

[6]    The first case management conference is not set down until 4 June 2024 and there have been no timetable orders for matters such as discovery or interlocutory applications or the filing of evidence, all of which are likely to impact the ultimate nature and scope of the claims. No close of pleadings date has yet been set.

[7]    The NSW proceedings were commenced in October 2022. The parties are currently undertaking discovery in respect of categories of documents determined by the NSW Supreme Court to be relevant to the issues in dispute in March 2024.

[8]    While there is a general principle that every person has the right to access the formal court record relating to a civil proceeding1 the “formal court record” does not include pleadings.2

[9]    Access to other documents on the Court file will only be granted with the Court’s permission.3 There is no presumption of disclosure of information.4

[10]   Rule 12 of the Rules sets out the matters that the court must consider in determining a request for access. The relevant matters seem to be:

(a)The orderly and fair administration of justice.

(b)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.

(c)The protection of other confidentiality and privacy interests.

(d)The freedom to seek, receive and impart information.

[11]   While there is no hierarchy between these matters, open justice has little relevance to a request by a private party pursuing a commercial purpose.5

1      Senior Courts Act (Access to Court Documents) Rules 2017, r 8(1).

2      Rule 2017, r 4 (definition of “formal court record”); and New Zealand Animal Law Association v Attorney-General [2020] NZHC 2376 at [5].

3      Senior Courts Act (Access to Court Documents) Rules 2017, r 11(7).

4      Crimson Consulting Limited v Berry (2018) 25BRNZ 44 (CA) at [32]

5      Schenker A G v Commerce Commission [2015] NZAR 1561 (CA) at [38].

[12]   Importantly for this application, the rules differentiate between various stages of a proceeding. Access to documents is less likely to be granted if an application is made before the substantive hearing.

[13]   The reason for this is that prior to the substantive hearing, the protection of confidentiality and privacy interests and the orderly and fair administration of justice, may require that access to documents be limited.6 Open justice has a greater weight during the substantive hearing than at other stages of the proceedings.7 After the substantive hearing, open justice has greater weight in relation to documents that have been relied on in a determination than other documents but the protection of confidentiality and privacy interests has greater weight than is the case during the substantive hearing.8

[14]   Applying cases such as Hotchin v APN New Zealand Limited,9 this application is premature. The allegations in the pleadings have not been tested by cross-examination and may well change during the course of the hearing. Strike out of some or all of the proceedings may occur. All parties may amend their pleadings.

[15]   The courts are reluctant to permit access where a party seeks to obtain documents for use or consideration in other proceedings as was held in the case of Safari Construction.10 I note that in the case of Safari the facts were similar to the present case and the Court held that the reasons given by the applicant to obtain access to the documents were “insufficient”.11

[16]   I also conclude that the application, at such an early stage, for the purpose of consideration in what is essentially parallel litigation in Australia, is not conducive to the orderly and fair administration of justice or the protection of confidential or other commercially sensitive information.

6      Senior Courts (Access to Court Documents) Rules 2017, r 13(b).

7      Rule 13(b)(i).

8      Rule 13(c)(i) and (ii).

9      Hotchin v APN New Zealand Limited [2011] NZAR 464.

10     See Safari Construction (2005) Limited v Concept Buildings Queenstown  Limited  [2023] NZHC 2811.

11 At [18].

Outcome

[17]For these reasons the application is declined.

Churchman J

Solicitors:

Lindsay Francis Mangan, Auckland for First and Second Plaintiffs Bell Gully, Wellington for first Defendant

Minter Ellison Rudd Watts, Auckland for Second Defendant