BIL NZ Treasury Limited v PriceWaterhouseCoopers New Zealand

[2020] NZHC 3227

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-668

[2020] NZHC 3227

UNDER

the Fair Trading Act 1986 and the Contracts (Privity) Act 1982

BETWEEN

BIL NZ TREASURY LIMITED

First Plaintiff

GL MANAGEMENT PTE LIMITED
Second Plaintiff

GL LIMITED
Third Plaintiff

AND

PRICEWATERHOUSECOOPERS NEW ZEALAND

Defendant

Hearing:

On the Papers

Counsel:

R J Hollyman QC and G D Simms for First, Second and Third Plaintiffs

D J Frair and N F D Moffatt for Defendant

Judgment:

8 December 2020

JUDGMENT OF CLARK J

[1]                  A senior reporter with BusinessDesk seeks access to documents under the Senior Courts (Access to Court Documents) Rules 2017.

[2]                  At a very general level this proceeding relates to tax compliance and consulting services provided by the defendant, PricewaterhouseCoopers (PwC) to the plaintiffs and associated group entities. The plaintiffs seek damages for alleged breach of contract, breach of fiduciary duty, negligence and breach of the Fair Trading Act 1986.

BIL NZ TREASURY LIMITED v PRICEWATERHOUSECOOPERS NEW ZEALAND [2020] NZHC 3227

[8 December 2020]

[3]                  The application is for the statement of claim, statement of defence and any minutes and judgments on the Court file. The defendant opposes access to the statements of claim and defence but does not object to access being provided to the judgments and minutes currently on file although it reserves its right to object to the provision of any future minutes and judgments. PwC describes the statement of claim as making “serious and unfounded allegations against PwC”. It strongly contests the allegations made against it. PwC argues that if the allegations are reported now at this early pre-trial stage of the proceeding the publication will cause irreparable harm to PwC’s interests, including its reputation and commercial standing.

[4]                  PwC also argues the statement of claim contains commercially confidential, sensitive and private information and the early disclosure of this information is not in the public interest.

[5]                  The plaintiffs will abide the decision of the Court as to whether to grant the application but in the event the application is granted the plaintiffs seek redactions to the pleadings before they are disclosed. To that end, copies of the relevant pleadings showing the requested redactions are attached to counsel’s memorandum.

[6]                  Access to court documents is governed by the Senior Courts (Access to Court Documents) Rules 2017 (the Rules). Any person may apply to access any document on the court file under r 11 of the Rules. A Judge may grant the request, with or without conditions, after considering the matters set out in r 12. For the purpose of this application the relevant factors are:

(a)the orderly and fair administration of justice:

…

(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 … 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:

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

[7]                  The weight to be afforded to the matters in r 12 depends on the stage the proceeding has reached when the application to access documents is made. Where, as here, the application is made before the substantive hearing then “the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited”.1

[8]                  PwC has put up a forceful and well-supported opposition. I have been persuaded that the application should be declined at this stage.

[9]                  The starting point is the principle of open justice. While there is no presumption in favour of disclosure, the transparency of court proceedings cannot be understated.2 The fact the applicant is a member of the media wishing to report publicly on the issue weighs in favour of granting the application.

[10]              On the other hand the principles of open justice must be balanced against the orderly and fair administration of justice and the protection of confidentiality, privacy and commercial sensitivity.3

[11]              One of PwC’s concerns is that the pleadings contain the names of key personnel of both the plaintiffs and defendant — but that kind of information can be redacted. More fundamentally the statement of claim refers to the terms of PwC’s engagement and relates to specific professional advice given to the plaintiffs over many years. PwC says the claim purports to reflect advice in a selective and distorted way that does not reflect the true nature of the advice in fact given and that publication of the advice in the manner alleged in the claim would be commercially damaging. If the matter proceeds to trial PwC anticipates applying for non-disclosure orders in relation to some of the material.

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

2      See Crimson Consulting Ltd v Berry [2018] NZCA 460, [2019] NZAR 30 (CA).

3      At [41]–[43].

[12]              I have reviewed the Court file. The proceeding is at an early stage. It was most recently the subject of a case management conference on 27 November 2020 and directions were made as to discovery, particulars and interlocutory applications which are to be filed by a date in February 2021. A further case management conference is scheduled for March and at that stage any interlocutory applications will be managed and directions will be made for pre-trial matters. A four-week fixture is to be allocated but not before the first quarter of 2022.

[13]              My assessment and determination of the application is influenced by the early stage at which the application is made alongside PwC’s legitimate concerns about protection of confidential and commercially sensitive information. If the matter proceeds to a hearing and a media application for access to documents is made at a later stage, the relevant considerations may weigh rather differently.

[14]              For the moment, I decline the application for the statement of claim and statement of defence. I grant access to the minutes and judgments that are on the file as at 7 December 2020.

Karen Clark J

Solicitors:

Wynn Williams, Auckland for Plaintiffs Bell Gully, Wellington for Defendant