Clark v Booker

[2025] NZHC 2142

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2021-404-000848

[2025] NZHC 2142

BETWEEN

KERRY BERNARD CLARK, TRINA MARY CLARK and K & T TRUSTEE COMPANY LIMITED

Plaintiffs

AND

DEREK JOHN BOOKER

Defendant

TRANSBUILD LIMITED

First Third Party

KEVIN PATRICK McDONALD as principal of KEVIN McDONALD & ASSOCIATES

Second Third Party

MIKE PERO REAL ESTATE LIMITED

Third Third Party

PACIFIC COAST SURVEYS LIMITED

Fourth Third Party (Discontinued)

On the papers

Counsel:

A R Govind for Applicant D M Law for Plaintiffs

S Khatau for Defendant
L G Cox for First Third Party
K M Burkhart for Third Third Party

Judgment:

1 August 2025

JUDGMENT OF VAN BOHEMEN J

[on application for access to Court documents]

This judgment was delivered by me on 1 August 2025 at 2:30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar Date……………………………..

CLARK v BOOKER [2025] NZHC 2142 [1 August 2025]

[1]                Darryl Patterson and Judith Gilmour (the applicants) have applied under the Senior Courts (Assess to Court Documents) Rules 2017 (the Rules) for access to all pleadings in this proceeding, including the statement of claim, statements of defence, third party claims and interlocutory applications. They also seek access to any affidavits from experts, any initial disclosure and any Court minutes.

[2]                Through their counsel, Mr Govind, the applicants say they are neighbours to the plaintiffs and the defendant at an address at Mangawhai Heads and are affected by the same issues and land covenant that arose in the proceeding. They say access to the documents would assist them and their lawyers to assess the prospects of bringing their own proceeding and might avoid wasting the time of the defendant and the Court. They seek the documents in the interests of open justice and maintaining the efficiency of the Court.

[3]                The applicants also say they already know personal information of the parties and they and their lawyers would be prepared to abide by any conditions preventing disclosure of the documents or their contents to others and any other conditions that might be imposed.

[4]                Counsel for the plaintiffs, the defendant, the first third party and the third third party advise that their clients oppose the request for access. I discuss the nature of their opposition below. I note, however, that counsel for the first third party, Transbuild Ltd, advises that the proceeding was settled before trial by agreement between the plaintiffs, the defendant and Transbuild on terms under which the parties would keep the subject of the agreement confidential and would not disclose it except to the extent required by law or necessary to obtain the benefit of the agreement.

Relevant provisions of the Rules

[5]                Under r 8(1), every person has the right to access the formal court record relating to a civil proceeding. Under r 4, the formal court record includes a judgment, order, or minute of the court, including any record of the reasons given by a Judge. It follows that the applicants have a right of access to any Court minutes and any judgment.

[6]                Because the applicants were not parties to the proceeding, their rights of access to documents not included within the formal court record are governed by rr 12 and 13.

[7]                Rule 12 requires a Judge to consider the nature of, and the reasons given for, a request for access and to take into account each of the matters specified in the section that is relevant to the request or any objection to the request. Those matters include:

(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:

…

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

[8]Rule 13 provides:

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.

Positions of those opposing access

[9]                Mr Cox, counsel for Transbuild, says because the proceeding settled before any hearing, r 13(a) applies so the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited. He submits that the decisions of this Court and the Court of Appeal in Donaldson v Skyking Investments Ltd and Crimson Consulting Ltd v Berry indicate that, where civil proceedings are settled before trial, access to the Court file is likely to be confined to the pleadings and minutes issued by the Court.1 He says that if, following the balancing exercise required by r 12, the Court considers some access is warranted, it should be limited to these documents.

[10]             Ms Law, counsel for the plaintiffs, concurs with Mr Cox. By reference to Crimson Consulting, she says that, where a proceeding settles before a substantive hearing, the protection of confidentiality and privacy is to be given greater weight. Ms Law also says that, when the proceeding was filed in 2021, the applicants and others were asked to join in the proceeding but declined to do so. She submits the current application is opportunistic and relates more to the applicants’ knowledge that a settlement has been reached rather than the efficiency of the Court.

[11]             Counsel for the defendant and the third third party have also recorded their clients’ opposition to the request for access. Counsel for the defendant, Ms Khatau, says access should not be granted beyond access to the formal court file as provided for under r 8(1) of the Rules.

1      See Donaldson v Skyking Investments Ltd [2019] NZHC 3083 and Crimson Consulting Ltd v Berry

[2018] NZCA 460, [2019] NZAR 30, (2018) 25 PRNZ 447.

Analysis

[12]             I do not consider the decisions in Skyking Investments and Crimson Consulting to be especially relevant to the current application. Both decisions concerned applications for access to documents by the news media. Clearly, the principle of open justice and the freedom to seek, receive, and impart information were of particular relevance in those applications.

[13]             Here, the application for access is from private parties who seek information that may be useful to their own circumstances. In this situation, the principle of open justice and the freedom to seek, receive, and impart information are of lesser moment.

[14]             I do not consider the current application should be assessed by reference to    s 13 (a), which applies where access is sought before a hearing of the substantive dispute. In the current proceeding, there is no hearing in prospect because the proceeding settled. This is effectively in a post-hearing situation. In these circumstances, s 13(c) is more apposite. However, because there was no judgment and no documents relied on in a judgment, s 13(c)(i) has little relevance. The relevant provision is s 13(c)(ii), under which the protection of confidentiality and privacy interests has greater weight.

[15]             Given the above analysis and the confidential basis upon which settlement of the proceeding was reached, I am satisfied the applicants should not be granted access on the terms sought. In addition, given the defendant’s position as advanced by  Ms Khatau and given that the defendant’s pleadings address the substance of the dispute in some detail, I do not consider it appropriate to permit access to the pleadings. The applicants are entitled, however, to access the formal court record.

[16]             For the information of the applicants, the terms of the settlement were not filed in Court.

Result

[17]             The application for access to Court documents is denied on the terms sought. However, the applicants may access the formal Court record as provided for in r 8(1) of the Rules.

G J van Bohemen J

Solicitors:

Resolute Lawyers Limited, Auckland Law & Associates, Auckland

DLA Piper New Zealand, Auckland Morgan Coakle, Auckland

Kevin McDonald & Associates, Auckland Kenedys, Auckland