Christie v Molloy

[2017] NZHC 508

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-81 [2017] NZHC 508

BETWEEN

JULIE CLAIRE MOLLOY CHRISTIE

Plaintiff

AND

INGRID DOLINA MOLLOY First Defendant

LEO JOHN MOLLOY Second Defendant

Hearing:

On the papers

Counsel:

Appearances:

MD OʼBrien and RD Butler for plaintiff

ID Molloy, first defendant in person

Judgment:

20 March 2017

JUDGMENT OF FITZGERALD J

[ON MEDIA APPLICATION BY NATIONAL BUSINESS REVIEW]

This judgment was delivered by me on 20 March 2017 at 3:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors/Counsel:           Missingham Law, Auckland (P Missingham) Wynyard Wood, Auckland (Z Wackenier)

Copies to:  MD O’Brien QC, Auckland VTM Bruton QC, Auckland RD Butler, Auckland

LJ Molloy, Auckland

And to:  C Gibson, National Business Review, Auckland

Christie v Molloy [2017] NZHC 508 [20 March 2017]

Background

[1]      Campbell Gibson, a journalist from the National Business Review (“NBR”), has applied to access the Court file for these proceedings:

The NBR would like access to a copy of the court file for CIV-2016-404-81: JULIE CLAIRE M CHRISTIE v INGRID DOLINA MOLLOY & ANOR. We understand the case was heard in open court on Friday, March 3, which means the information of the dispute is already publically available.

The  matter  is  of  public  interest  because  it  involves  a  high-profile  and wealthy New Zealander.

We make this application with the knowledge of rule 3.13 and 3.9 – in particular:

(c)       the principle open justice, namely, encouraging fair and accurate reporting of, and comment on, court hearings and decisions, and:

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

[2]      The parties have had the opportunity to respond to the NBR’s application. The plaintiff opposes the application.   The first defendant has no objection to the NBR accessing the file. The second defendant has not responded to the application.

Relevant principles

[3]      Rule 3.9 of the High Court Rules 2016 governs access to the Court file during the “substantive hearing stage”.  That is when the main matter is being tried in open court; it does not encompass the hearing of interlocutory applications.1   During this stage, there is a presumption (subject to a Judge’s overriding discretion)2  that any

person may access:3

(a)       any pleading, reference, notice, or application filed in the court:

(b)      affidavits,  depositions,  or  other  written  statements  admitted  into evidence for the purposes of the hearing:

(c)       documents admitted into evidence for the purposes of the hearing:

(d)      if any evidence given orally at the hearing has been transcribed, a transcript of that evidence.

1      Rule 3.9(1).

2      Rule 3.9(3).

3      Rule 3.9(2).

[4]      Although this proceeding was listed as being heard in Court on 3 March

2016, that hearing concerned an interlocutory application for adjournment.   The hearing was held in chambers not in open court.  Therefore, r 3.9 does not apply and the application falls to be considered under r 3.13.

[5]      When  considering an  application  under r 3.13,  the Court  must  take into account the nature of, and the reasons for, the application, and also any other relevant factors listed in r 3.16, being:

(a)       the orderly and fair administration of justice:

(b)       the protection of confidentiality, privacy interests (including those of children and other vulnerable members of the community), and any privilege held by, or available to, any person:

(c)       the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, court hearings and decisions:

(d)      the freedom to seek, receive, and impart information:

(e)       whether a document to which the application or request relates is subject to any restriction under rule 3.12:

(f)       any other matter that the Judge or Registrar thinks just.

[6]      The weighing of these factors is a discretionary exercise.4   The factors do not represent a hierarchy, and no single one is paramount.5   The Courts will, however, be inevitably less sympathetic to an application which does not have a recognisable and legitimate public or private purpose.6

[7]      In GDF I LLP v Melview (Kawarau Falls Station) Investments Ltd (in Rec),

Winkelmann J observed that, prior to the substantive hearing stage, the principle of

open justice has much less force than the parties’ privacy considerations.7

4      Schenker AG v Commerce Commission [2013] NZCA 114, (2013) 22 PRNZ 286 at [15]-[16].

5      Schenker AG v Commerce Commission, above n 4 at [37].

6      Commerce Commission v Air New Zealand Ltd [2012] NZHC 271 at [30].

7      GDF I LLP v Melview (Kawarau Falls Station) Investments Ltd (in Rec) [2012] NZHC 677, (2012) 12 PRNZ 125 at [16].

Analysis

[8]      Turning to the present application, the proceedings have not yet reached a substantive hearing.   Further, the case does not concern the plaintiff’s commercial dealings, but private and family related matters.   Although the plaintiff ’s identity means the proceedings may be “interesting to the public”, it does not necessarily follow that the publication about the case, particularly at its pre-trial stage, is a

matter of public interest.8

[9]      The subject  matter of this proceeding and  the sole reason stated for the present application (that the plaintiff is a high profile and wealthy New Zealander) lead me to the view that, at present, the parties’ privacy considerations outweigh the principles of open justice (namely, encouraging fair and accurate reporting of court hearings and decisions) and the freedom to seek, receive, and impart information. Further, given the stage at which the present proceeding has reached, some of the allegations on the Court file may not yet be fully responded to, meaning that it will be difficult for the NBR to fairly and accurately report on the proceeding prior to the substantive hearing.    In  addition,  the airing in  public of contested but  untested allegations in a case of this nature would not, in my view, be conducive to the orderly and fair administration of justice.  It will likely be an unwarranted distraction for the parties and may undermine any attempt at an extra-judicial resolution of matters in issue.   There are also live issues as to privilege claims in respect of materials currently on the Court file.

[10]     Finally, I do not consider that the principle of open justice will be advanced at this stage by the applicant accessing the pleadings, or other limited parts of the file.9

Similar privacy considerations apply.  Without the wider context of the evidence, and that evidence being tested open court in the ordinary way, the materials currently on the file will  provide little information  that  would  allow the  NBR  to  fairly and accurately report on the main issues at play.  The context of these proceedings is also

quite different to that in the  Melview decision  (where some limited access was

8      See the observations of Eichelbaum CJ in TV3 Network Services Ltd v Broadcasting Standards

Authority [1995] 2 NZLR 720 (HC) at 733.

9      No judgments, other than this judgment, have been issued to date, and when they are, they will become publically accessible in the usual way.

provided), which involved major commercial litigation and a request for access by parties involved in related litigation.

Conclusion

[11]     I therefore decline the NBR’s application.  That said, this decision is without prejudice to Mr Gibson’s or the NBR’s right to make another application at a later

stage.

Fitzgerald J