Church Property Trustees v Paul Smith Earthmoving 2002 Limited

[2020] NZHC 3156

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-234

[2020] NZHC 3156

BETWEEN

CHURCH PROPERTY TRUSTEES

Plaintiff

AND

PAUL SMITH EARTHMOVING 2002 LIMITED

Defendant

Hearing:	(Determined on the papers)
Counsel:	J I Taylor and J J Anson-Holland for Plaintiff G M Brodie for Defendant
Judgment:	30 November 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Application for access to Court documents)

This judgment was delivered by me on 30 November 2020 at 4.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 30 November 2020

CHURCH PROPERTY TRUSTEES v PAUL SMITH EARTHMOVING 2002 LIMITED [2020] NZHC 3156

[30 November 2020]

[1]    Mr Gates, a news reporter for Stuff, has applied for access to the statement of claim and statement of defence in this proceeding. The application is advanced by Mr Gates on the following grounds, “I am a news reporter for Stuff and there is public interest in this case.”

[2]    Mr Gates’ request was made pursuant to the Senior Courts (Access to Court Documents) Rules 2017 (the Rules). As required by the Rules, the application was referred to the parties for their input.

[3]    The plaintiff did not oppose the access application. The defendant, through counsel, has opposed the application.

[4]    Rule 8(1) states, “Every person has the right to access the formal court record relating to a civil proceeding.”

[5]    “Formal court record” is defined in r 4 to include “a judgment, an order, or    a minute of the court, including any record of the reasons given by a Judge.”

[6]    The only such document on the Court file in these proceedings is a Minute of mine dated 18 August 2020.   Mr Gates may have access to that Minute pursuant to   r 8(1).1

[7]    As Mr Gates’ application is to access the statement of claim and statement of defence, these are documents not covered by the general right in r 8. Such an application is made pursuant to r 11 and the principles to be applied in considering such a request are set out in rr 12 and 13. Those rules provide:

Accessing documents not covered by general rights

11                   Any person may ask to access documents

(1)This rule applies if a person is not entitled to access a document relating to a proceeding or an appeal under rule 8 or 9.

1      See Community of the Sacred Name Society or Trust Board v The Attorney-General [2019] NZHC 1572 at [11].

(2)A person may ask to access any document by providing the Registrar of the relevant court registry with a letter, an email, or any other written form of request that—

(a)identifies the person and gives the person’s address; and

(b)sets out sufficient particulars of the document to enable the Registrar to identify it; and

(c)gives reasons for asking to access the document, which must set out the purpose for which the access is sought; and

(d)sets out any conditions of the right of access that the person proposes as conditions that he or she would be prepared to meet were a Judge to impose those conditions (for example, conditions that prevent or restrict the person from disclosing the document or contents of the document, or conditions that enable the person to view but not copy the document).

(3)The Registrar must promptly give a copy of the request to the parties to the relevant proceeding or appeal, or to their lawyers.

(4)A Judge may dispense with service under subclause (3) if it would be impractical to require notice to be served.

(5)A party who receives a copy of a request and who wants to object to it must give written notice of the objection to the Registrar, setting out the grounds on which the party objects,—

(a)before 3 pm on the third working day after the day on which the copy is received; or

(b)if the copy is received on a day on which a hearing relating to the document is proceeding, before 3 pm on the first working day after the day on which the copy is received.

(6)For the purposes of subclause (5), a person is deemed to receive      a copy of a request on the day on which it is sent electronically or handed to the person.

(7)A Judge may—

(a)grant a request for access under this rule in whole or in part—

(i)without conditions; or

(ii)subject to any conditions that the Judge thinks appropriate; or

(b)refuse the request; or

(c)refer the request to a Registrar for determination by that Registrar.

(8)Without limiting the powers in subclause (7), the Judge may refuse  a request for access under this rule solely for the reason that the request does not comply with subclause (2)(a), (b), (c), or (d).

Determining requests for access

12                   Matters to be considered

In determining a request for access under rule 11, the Judge must consider the nature of, and the reasons given for, the request and take into account each of the following matters that is relevant to the request or any objection to the request:

(a)the orderly and fair administration of justice:

(b)the right of a defendant in a criminal proceeding to a fair trial:

(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 (including those of children and other vulnerable members of the community) 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

13                   Approach to balancing matters considered

In applying rule 12, the Judge must have regard to the following:

(a)before 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:

(b)during the substantive hearing, open justice has—

(i)greater weight than at other stages of the proceeding; and

(ii)greater weight in relation to documents relied on in the hearing than other documents:

(c)after the substantive hearing,—

(i)open justice has greater weight in relation to documents that have been relied on in a determination than other documents; but

(ii)the protection of confidentiality and privacy interests has greater weight than would be the case during the substantive hearing.

[8]    As I have said, Mr Gates advances his application on the grounds that there is public interest in the case. The basis for that assertion is not given.

[9]    Mr Brodie, counsel for the defendant, submits these proceedings involve contested and complex factual issues. He says, the case is at an early stage, with discovery not having been completed. The pleadings remain in what Mr Brodie described as a “formulative stage” and the pleadings are not closed.

[10]   Mr Brodie disputes Mr Gates’ claim there is public interest in the case. He asserts that the dispute between the parties revolves mainly around a relatively minor claim and concerned events that occurred at least 10 years ago.

[11]Mr Brodie relied on RE Investments Ltd v Keddel, where Palmer J said:2

… where a request for access is made before the substantive hearing, the protection of confidentiality and privacy interests, and the orderly and fair administration of justice may require access to documents to be limited. Open justice has less weight prior to hearing when there is no guarantee the case will go to a hearing at all.

(footnotes omitted)

[12]   Mr Brodie, in his letter opposing the access request, says “[i]t is very unlikely that this case will ever proceed to trial…”.

[13]   In Community of the Sacred Name Society or Trust Board v Attorney-General, Nation J said:3

Contrary to both parties’ submissions, open justice is not the paramount consideration. There is no presumption of disclosure. This is particularly so before the proceedings have had the substantive hearing. Rule 13(a) provides that the protection of confidentiality and privacy issues and the orderly and

2      FE Investments Ltd v Keddell [2018] NZHC 2516 at [9].

3      Community of the Sacred Name Society or Trust Board v Attorney-General, above n 1, at [27].

fair administration of justice may require that access to documents be limited when the proceedings have not yet reached trial. That is the case here. These considerations must be weighed against the principle of open justice and the freedom to seek, receive and impart information under rr 12(e) and (f).

(footnotes omitted)

[14]   Mr Brodie submits that his client will suffer irreparable damage to its reputation if the contents of the pleadings are published, even alongside it being recorded that those claims are denied.

[15]   I decline Mr Gates’ application for access to the court file other than to the document he is entitled to under r 8.

[16] I decline the application on the grounds that it has not been demonstrated to me that there is such public interest in this case that it outweighs the other considerations that must be considered under r 12, in particular, those identified by Palmer J as set out at [11] above. No conditions are suggested by Mr Gates for the protection of the identity of the defendant in this case.

[17]   It is not uncommon for it to be a factor in a party considering whether to enter a commercial settlement of a proceeding that in doing so it can ensure confidentiality as part of its settlement. This factor is not referred to by Mr Brodie and so should not be taken as in any way suggesting that his client is contemplating settlement, but clearly confidentiality is important to his client and in my opinion, it is entitled to preserve that confidentiality when this proceeding is still at an early stage.

Associate Judge Lester

Solicitors:

Dalziel Law, Christchurch Wynn Williams, Christchurch

Copy to counsel:
G M Brodie, Barrister, Christchurch