Commerce Commission v Moola.co.nz Limited

[2021] NZHC 2132

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-000316

[2021] NZHC 2132

BETWEEN

COMMERCE COMMISSION

Plaintiff

AND

MOOLA.CO.NZ LIMITED

Defendant

Hearing:	On the papers
Judgment:	16 August 2021

JUDGMENT OF NATION J

Introduction

[1]    Two different media applications for access to court documents have been made by non-parties to these proceedings. The first application has been made by MLex, LexisNexis (MLex) and the second by Diana Clement, on behalf of LawNews Auckland District Law Society (LawNews).

[2]    MLex requests access to all documents that are not restricted, while LawNews requests access to the statement of claim made by the Commerce Commission.

[3]Moola opposes the application that has been made by MLex.

[4]    At present the proceeding is at a very early stage. Moola has not yet filed a statement of defence or any other documents in this proceeding.

COMMERCE COMMISSION v MOOLA.CO.NZ LTD [2021] NZHC 2132 [16 August 2021]

Law

[5]    Access to court documents is governed by the Senior Courts (Access to Court Documents) Rules 2017. When considering whether to grant access to court documents, the following matters must be considered under r 12:

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.

[6]    Further guidance is provided by r 13 as to how these matters are to be considered:

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.

Position of the parties

[7]    Moola opposes the application for access to court documents made by MLex on the basis it would disclose information on matters that are commercially sensitive in a way that is more than necessary to satisfy the principles of open justice. It also emphasises that r 13(a) provides, before a 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.

[8]    Moola says that disclosure of the statement of claim would be prejudicial to Moola given it has not yet filed a statement of defence. This means it has not yet responded to the allegations made against it, so the court file can only provide “part of the story”.

[9]    In a memorandum filed on 2 August 2021, the Commerce Commission does not oppose the application by MLex and will abide by the decision of the court.

[10]   Helpfully, counsel acting for the Commerce Commission also noted that the Court’s general practice is not to allow media access to pleadings until, at a minimum, both parties have filed substantive pleadings.

Decision

[11]   Although media play an important role in reporting proceedings and the issues of access to court documents may need to be considered at a later stage, there is clear authority that the Court does not generally allow media access to pleadings until both

parties have filed pleadings. 1 To do so would be unfair in the sense that only one side of the story would be published.2

[12] At this stage, and for the reason at [11] above, I decline both applications for access to court documents.

Conclusion

[13]    Both applications for access to court documents are declined, but without prejudice to MLex or LexisNexis to make a further request once all parties have filed their proceedings.

[14]Moola’s statement of defence is due to be filed on 25 August 2021.

Solicitors:

Meredith Connell, Wellington

Copy to:
The Defendant.

1      Scenic Circle Hotel Ltd v West Coast Regional Council [2019] NZHC 2326 at [8]; and Scott v ANZ Bank New Zealand Ltd [2019] NZHC 1908 at [12].

2      Crimson Consulting Ltd v Berry [2018] NZCA 460 at [39].