Bruce v IAG New Zealand Limited

[2021] NZHC 1617

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2016-409-1223

[2021] NZHC 1617

UNDER

Senior Courts (Access to Court Documents) Rules 2017

RE

ADRIAN COWIE

Applicant

IN THE MATTER

of a proceeding between JOANNE

TRACEY BRUCE, STEPHEN LESLIE BRUCE and LESLIE GORDON

WILLETTS as trustees of the JO AND STEPHEN FAMILY TRUST

Plaintiffs

AND

IAG NEW ZEALAND LIMITED

Defendant

AND

ORANGE H MANAGEMENT LIMITED

(formerly Hawkins Management Limited) (in receivership and in liquidation)

First Third Party

continued …..2

Hearing:	(Determined on the papers)
Judgment:	16 July 2021

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 16 July 2021 at 12.00 pm Pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 16 July 2021

RE COWIE v BRUCE [2021] NZHC 1617 [16 July 2021]

AND

ORANGE H GROUP LIMITED (formerly Hawkins Group Limited) (in receivership and in liquidation) Second Third Party

AND

QBE INSURANCE (AUSTRALIA) LIMITED

Third Third Party

[1] The applicant, Mr Cowie, has applied for access to specific documents in proceeding CIV-2016-409-1223. The application is made under the Senior Courts (Access to Court Documents) Rules 2017 (the Rules).

[1]    As between the plaintiffs and the defendant, the proceeding is at an end.  In   a judgment dated 20 December 2018, Mallon J determined liability in favour of the plaintiffs.1 The quantum was resolved at a settlement conference with costs determined by her Honour in a judgment dated 18 November 2020.2 The proceeding as it concerns the defendant and the third party remains unresolved.

[2]    Mr Cowie seeks a copy of the brief of evidence of the expert witness called by the defendants, details of what he describes as a “BRANZ Publication”, and copies of the transcript or submissions that refer to that publication.

[3]    The Registry has contacted counsel for the defendant, who do not oppose the search request. Indeed counsel has helpfully provided a copy of the report and advised that it can be found in the common bundle as document CB1633. Counsel for QBE has no objection to the access request.

[4]    The report was produced in the proceeding between the plaintiffs and the defendants. The Registry contacted counsel for the plaintiffs to see if there was any objection to the access request.

1      Bruce v IAG New Zealand Limited [2018] NZHC 3444.

2      Bruce v IAG New Zealand Limited [2020] NZHC 3051.

[5]    The plaintiffs opposed the request on a number of grounds including that they signed a confidentiality agreement with IAG at the judicial settlement conference. Mr Cowie’s request does not trespass on the matters covered at the judicial settlement conference – he only seeks access to material referred to in open court.

[6]    The plaintiffs do not want their case to be in the public eye again – they say they want to move on. The plaintiffs also say if the request is granted it may have consequences (unspecified) for them in the future.

[7]    While I can understand the plaintiffs wanting to put the proceedings behind them, I do not see how Mr Cowie’s focused request can have any consequences for them. The  information  he  seeks  does  not  concern  the  plaintiffs’  private  lives  (a consideration under r 12(c)) of the Rules, nor  is  it  confidential  so as to  engage  r 12(d). The BRANZ Report is not confidential. The plaintiffs’ desire for privacy will be addressed through the condition that will attach to Mr Cowie’s access.

[8]    I am satisfied that the applicant, Mr Cowie, has a genuine reason for seeking access to the materials as required by r 11(2)(c). Mr Cowie has given expert evidence in a number of earthquake proceedings and he wishes to understand the evidence around the particular BRANZ Report so that he will be able to fully meet his obligations as an expert witness should the issue to which the BRANZ Report relates arise in a future case. I consider Mr Cowie being able to explain, if required, the Report and how it was treated in the hearing is a relevant factor which I can have regard to under rr 12(e) and 12(h) of the Rules.

[9]    Given the  material  sought  was  referred  to  in  open  court  and  in  part  in a judgment of this Court, and in the absence of any objections, I am satisfied none of the factors in r 12 warrant declining the application.

[10]   Accordingly, Mr Cowie’s application is granted.  The Registrar may supply   a copy of the brief of evidence and the BRANZ Report to Mr Cowie.

[11]   The balance of Mr Cowie’s application is a request for portions of the transcript of evidence where the report is discussed and any other evidence or submission that

describes the publication or touches on it. Mr Cowie may have access to the Court file to identify the relevant passages in the file covered by his request, but it is not for the Registry to carry out the type of review that would be required to identify the other material sought by Mr Cowie. If Mr Cowie wishes to attend the Registry and inspect the file, he may make arrangements with the Registry in that regard.

[12]   For the avoidance of doubt, leave does not extend to any settlement conference papers that may remain on the file.

[13]   It is a condition of granting access that Mr Cowie, in using the material he obtains from the file, is not to refer to the names of the plaintiffs unless the matter  he wishes to refer to is already in the public domain through the earlier judgments in this proceeding being publicly available.

Associate Judge Lester