Cain v Mettrick

[2022] NZHC 420

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000548

[2022] NZHC 420

IN THE MATTER

of an application by Crux Publishing

Limited to access court documents pursuant to the Senior Courts (Access to Court Documents) Rules 2017

BETWEEN

R J CAIN and R G LOGAN as liquidators of STONEWOOD HOMES LIMITED (In

Receivership and Liquidation),
STONEWOOD HOMES NEW ZEALAND

LIMITED (In Receivership and Liquidation) and HOLMFIRTH GROUP LIMITED (In

Receivership and Liquidation) Plaintiffs

AND

B A METTRICK

First Defendant

AND

J BOULT

Second Defendant

Hearing:	28 February 2022 (by way of telephone conference) Further submissions filed for Mr Boult on 4 March 2022
Appearances:	R K P Stewart for Applicant, Crux Publishing Ltd G J Ryan for Second Defendant, Mr Boult
Judgment:	10 March 2022

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 10 March 2022 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

CAIN v METTRICK (re stay) [2022] NZHC 420 [10 March 2022]

[1]    On 23 February 2022, I determined an application by Crux Publishing Ltd (Crux) to access documents from the court file pursuant to rr 8 and 11 of the Senior Courts (Access to Court Documents) Rules 2017.

[2]The orders I made included:1

I grant Crux access to any statement of claim, statement of defence or statement in reply filed by any party. This is subject to the condition that in any report of a new allegation made in the plaintiffs’ amended statement of claim dated 4 June 2021, Crux is to make it clear the defendants did not respond to the allegation before settlement was reached.

[3]    Mr Boult has filed an appeal from this order and an application for a stay. I granted a temporary stay pending hearing from counsel. On 28 February 2022, I heard from Mr Ryan and Mr Stewart and called for further submissions from Mr Ryan, which I received.

[4]    The application for a stay is made pursuant to r 12(3) of the Court of Appeal (Civil) Rules 2005. The relevant principles are set out in McGechan on Procedure which I summarise as follows:2

(a)The Court must balance competing rights of the party who obtained the judgment appealed from against the need to preserve the appellant’s position against the event of the appeal succeeding.

(b)The object, where it can be fairly achieved, must be to arrange matters such that when the appeal comes to be heard, the appeal Court may be able to do justice between the parties, whatever the outcome of the appeal may be.

(c)The factors to be taken into account in the balancing exercise include:

(i)whether the appeal may be rendered nugatory by the lack of a stay;

1      Cain v Mettrick [2022] NZHC 258 at [38].

2      Andrew Beck and others McGechan on Procedure (looseleaf ed, Brookers) at [CR12.01].

(ii)the bona fides of the applicant as to the prosecution of the appeal;

(iii)whether the successful party will be injuriously affected by the stay;

(iv)the effect on third parties;

(v)the novelty and importance of questions involved;

(vi)the public interest in the proceeding; and

(vii)the overall balance of convenience

(d)The apparent strength of the appeal is recognised as an additional factor.3

[5]    Crux’s formal position is that it will abide the decision of the Court in relation to the stay application. Notwithstanding that, it filed submissions critical of the stay application, and of the appeal.

[6]    If the documents were released to Crux now, the appeal may be rendered nugatory by the lack of a stay. Crux accepts this is the case if the documents are released and it is allowed to report on them. For that reason, it asks the Court to release the documents subject to the condition it not publish a report or account of the information they contain.

[7]    I do not consider it would be appropriate to allow Crux access to the documents even on the condition it proposes. One of the primary grounds of appeal is that Crux’s request to access the documents should have been refused because it is not likely to engage in fair, accurate and unbiased reporting of this proceeding, and that it wishes to do Mr Boult harm. If it is ultimately found it has such an intention, such a condition would not prevent Crux using the information in other ways, to Mr Boult’s detriment.

3      McGechan on Procedure, above n 2, at [CR12.01].

[8]    I do not doubt Mr Boult has every intention of prosecuting the appeal to a hearing and I do not consider Crux (or any third parties) will suffer any substantial disadvantage or harm by delay arising from the appeal.

[9]    I accept the appeal is fairly arguable and it raises an interesting issue to the extent Mr Boult will argue the Court should have refused Crux access to the documents based on the content of its prior reporting of this litigation and other matters.

[10]   The issue upon which I asked Mr Ryan to provide further submissions concerned whether it was appropriate to grant a stay when some of the documents in issue have previously been released and reported upon by several media outlets.4 I accept Mr Ryan’s submissions that, despite the prior release of the documents, they cannot be considered as being in the public domain and each application for access to them must be considered and assessed against the circumstances that apply at the time.

[11]   Standing back and looking at all the circumstances, the overall balance is in favour of granting a stay.

Result

[12]   Pending the hearing of Mr Boult’s appeal under CA90/2022, there shall be a stay of the order made in para [38] of my judgment of 23 February 2022.

[13]There shall be no order for costs.

O G Paulsen Associate Judge

Solicitors:

Robert Stewart, Barrister, Auckland Mike Coulson QC, Auckland Buddle Findlay, Christchurch

White Fox & Jones, Christchurch

4      Cain & Ors v Mettrick & Anor [2018] NZHC 2157.