Community of the Sacred Name Society or Trust Board v Attorney-General
[2019] NZHC 1572
•5 July 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2017-409-000930
[2019] NZHC 1572
BETWEEN COMMUNITY OF THE SACRED NAME SOCIETY OR TRUST BOARD
PlaintiffAND
THE ATTORNEY-GENERAL
Defendant
AND
PAUL SMITH EARTHMOVING (2002) LIMITED
Third Party
Hearing: On the papers Judgment:
5 July 2019
JUDGMENT OF NATION J
[1] Church Property Trustees (CPT) own or controls properties on which hardfill has been provided by Paul Smith Earthmoving (2002) Ltd (PSE). It says there are issues as to the contamination of those properties as a result of the hardfill. CPT understands that its interest in PSE’s potential contamination of its properties is similar to that of the Community of the Sacred Name Society or Trust Board (the plaintiff) in these proceedings.
[2] In these proceedings, the plaintiff says that it was required by the Canterbury Earthquake Recovery Authority (CERA) to demolish buildings on land which the plaintiff owned and to remove and dispose of materials from the site, to replace the excavated ground with fill and to cover the reinstated site with topsoil and grass. It alleges CERA commissioned a third party to undertake that work. It claims that, after the work had been carried out, it was invoiced $226,000 for the remediation work. It
COMMUNITY OF THE SACRED NAME SOCIETY OR TRUST BOARD v THE ATTORNEY-GENERAL [2019] NZHC 1572 [5 July 2019]
has subsequently been found there was asbestos contamination of the site. The plaintiff claims $500,000 for the cost of remediating that contamination.
[3] CERA’s functions have been transferred by legislation to Land Information New Zealand (LINZ) hence the plaintiff’s claim against the Attorney-General on behalf of LINZ.
[4] The Attorney-General has in these proceedings joined PSE as a third party on the basis PSE was the third party contacted by CERA to carry out the ground remediation work on the plaintiff’s site.
[5] By letter dated 17 June 2019, solicitors for CPT have sought access to the formal court record in the proceedings CIV-2017-409-930 including all judgments, orders, or minutes of the Court, including any record of reasons, and the following pleadings:
(a) the statement of claim;
(b) all statements of defence (including those to claims against third parties);
(c) all statements of reply; and
(d) all third-party notices and claims.
[6] The solicitors for CPT have indicated they are willing to receive the requested documents on the basis the documents will not be disclosed to any unrelated third party, except for the sole purpose of seeking and/or obtaining legal advice.
[7] The plaintiff and defendant in proceedings CIV-2017-409-930 have no objection to CPT having access to the documents as sought. CPT’s request is opposed by PSE.
[8] The request is made under the Senior Courts (Access to Court Documents) Rules 2017.
[9] Rule 8(1) states “every person has the right to access the formal court record relating to a civil proceeding”.
[10]In r 4, “formal court record” is defined to mean:
(a) a register or an index:
(b) a published list that gives notice of a hearing:
(c) a document that—
(i)may be accessed under an enactment other than these rules; or
(ii)constitutes notice of its contents to the public:
(d) a judgment, an order, or a minute of the court, including any record of the reasons given by a Judge:
(e) the permanent court record under Part 7 of the Criminal Procedure Rules 2012:
(f) the rolls of barristers and solicitors kept under section 56 of the Lawyers and Conveyancers Act 2006 or any former corresponding enactment
[11] The only such document on the Court file in these proceedings is a minute of Associate Judge Lester of 10 May 2019. CPT may have access to that document.
[12]CPT’s application for the pleadings is made under r 11. Rule 11(2) provides:
(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).
[13]Rules 12 and 13 provide:
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.
[14] CPT says, for the reasons referred to, it has an interest in the CIV-2017-409- 930 proceedings. It submits there is a presumption of disclosure that is to apply in civil court proceedings, especially in relation to pleadings, citing Erceg v Erceg and BNZ Investments Ltd v Commissioner of Inland Revenue.1
[15] Counsel for PSE submitted Erceg is not authority for the presumption of disclosure in relation to pleadings. Counsel submitted Erceg did not engage the issue of access to the Court file.
[16]Counsel referred to Palmer J’s statement in FE Investments Ltd v Keddell: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.3 Open justice has less weight prior to hearing when there is no guarantee the case will go to hearing at all.4
[17] In that case, Palmer J permitted the National Business Review access only to the formal decision of Venning J and the statement of claim which was necessary to provide context. Access to the remainder of the file was refused.
[18] Counsel for PSE also referred to the judgment of Wild J in the High Court in BNZ Investments Ltd v Commissioner of Inland Revenue and his reference to comments from judgments from Australia and the United Kingdom where it was said:5
An application for permission to use the court file as a source of potentially useful information to assist in other litigation does not engage the principle of open justice.
[19]Wild J also said:
[32] Thus, as in the United Kingdom; open justice is the paramount consideration in determining access to Court files in Australia. As stated by Sackville J in Seven Network Ltd and Anor v News Ltd and Ors (No 2) (2005) 148 FCR 1 at [27], the corollary is that:
1 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2]; BNZ Investments Ltd v Commissioner of Inland Revenue (2009) 20 PRNZ 311 (HC) at [33] and [36].
2 FE Investments Ltd v Keddell [2018] NZHC 2516 at [9].
3 Berry v Crimson Consulting Ltd [2017] NZHC 3026 at [17]-[18].
4 Greymouth Petroleum Holdings Ltd v Empresa Nacional Del Petróleo [2017] NZCA 490, [2017] NZAR 1617 at [25].
5 BNZ Investments Ltd v Commissioner of Inland Revenue, above n 1, at [31].
[...] a convenient touchstone for determining the question of access by non- parties is whether the documents or other material have been admitted into evidence.
[33] If the documents in question have not been adduced in evidence, or have not been read by the Court at some other (i.e. non evidentiary) stage, the moral impetus behind ‘open justice’ does not apply, because the material never entered the public domain.
[20] PSE submitted that providing assistance to a litigant in an allegedly similar case is not a ground for disclosure in terms of r 11(2)(c). PSE submitted that, instead, r 12(c) provided for the Court to take into account the right to 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. Counsel submitted it is a fundamental principle that documents provided by a litigant in the course of discovery are not to be used by other parties for any purpose other than the conduct of the particular litigation. Counsel argued that allowing CPT access to the pleadings would inevitably result in the release of information that would derive from that discovery.
[21]PSE submitted the application for access should be declined because:
(a) The proceedings are at an early stage. It is possible they will never get to trial.
(b) No documents have entered the public domain through the court process.
(c) The access is sought not in furtherance of the public interest but in the applicant’s own commercial interests.
(d) The application exposes the Third Party to an unfair disadvantage in conducting its defence of the proceedings given that everything it does may be used against it in completely unrelated proceedings.
(e) The authorities and rules recognise a sharp distinction between documents referred to in the course of a hearing in open court.
[22]In response to the submission filed for PSE, CPT says that it is relevant:
(a) CPT has agreed not to disclose the documentation to third parties (except for the sole purpose of seeking and/or obtaining legal advice);
(b) the application for the documentation is limited to the pleadings, not the evidence or discovery documents;
(c) CPT is a charitable organisation based in New Zealand that owns land and buildings for the benefit of the public. The provision of the documents is in the public interest;
(d) CPT and PSE are not commercial competitors. There can be no commercial prejudice to PSE; and
(e) the alleged commercially sensitive material will likely need to be disclosed to CPT in the event CPT files proceedings against PSE. If the Court is still concerned with commercially sensitive material being disclosed, CPT would accept access to the documents with the commercially sensitive material redacted.
Analysis
[23]Of the pleadings CPT seeks, these are on the Court file:
(a) Plaintiff’s statement of claim, dated 28 November 2017;
(b) Amended statement of defence, dated 14 November 2018;
(c) Reply to amended statement of defence dated 14 November 2018, dated 29 November 2017 [sic];
(d) Third party notice, dated 12 December 2018;
(e) Defendant’s statement of claim against third party, dated 12 December 2018;
(f) Statement of defence by third party to defendant’s statement of claim against third party dated 12 December 2018 (includes defence to plaintiff’s statement of claim), dated 14 February 2019;
(g) Plaintiff’s reply to statement of defence of third party dated 14 February 2019, dated 28 February 2019; and
(h) Defendant’s reply to third party’s statement of defence, dated 28 February 2019.
[24] I note that neither the plaintiff nor the defendant has any objection to the disclosure of their documents.
[25] CPT and its lawyers appear to be considering filing a claim that is similar in nature, and involving the same defendant and third party, to the proceeding at hand. CPT does not have parallel litigation underway at this point. It has applied with reasonable specificity as to the documents it seeks, the purpose of its application, and the agreed restriction on any further dissemination of the material aside from for the purpose of obtaining legal advice.
[26] The matters the Court must consider in deciding whether a request for access to documents on a civil file should be granted as set out in r 12 replicate what used to be in r 316 of the High Court Rules. Cases decided under those rules therefore continue to be relevant. A review of the cases under the current and previous regimes indicates that decisions tend to be case-specific. McGechan on Procedure goes so far as to say there is “no common theme in the cases” as to how the Court will respond to requests from applicants involved in similar litigation.6 It is a matter of weighing the considerations in rr 12 and 13 as they apply in the case at hand.
[27] There is no hierarchy to the matters to be considered in deciding an application specified in r 12. Contrary to both parties’ submissions, open justice is not the paramount consideration.7 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 interests and the orderly and 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
6 McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [SCD12.04].
7 Both parties relied on BNZ Investments Ltd v Commissioner of Inland Revenue (2009) 20 PRNZ 311 (HC). The High Court in Commerce Commission v Air New Zealand Ltd [2012] NZHC 271 reviewed the differing approaches taken by BNZ Investments and Chapman v P (2009) 20 PRNZ 330 (HC) and preferred the non-hierarchical approach taken in Chapman. This has been endorsed by the Court of Appeal in Schenker AG v Commerce Commission [2012] NZCA 245, (2012) 21 PRNZ 167 and in Crimson Consulting Ltd v Berry [2018] NZCA 460, [2019] NZAR 30.
must be weighed against the principle of open justice and the freedom to seek, receive and impart information under rr 12(e) and (f).
[28] While the principle of orderly and fair administration of justice is usually applied in relation to the proceedings at hand, I consider it can be applied more widely to include possible future proceedings. It is in the public interest that persons who might have a similar interest in the issues which are already before the Court in proceedings with which they are not currently involved should be informed of what precisely is at issue in those proceedings. Thus, if they choose, they can take advantage of what might emerge from hearings in those proceedings which will be open to the public and any judgment that might result from those proceedings. If parties with a proper interest in other proceedings can be better informed about what is happening in those other proceedings, they may be able to more efficiently deal with what they perceive to be similar issues. In that sense, allowing access to the sort of information in documents which CPT seeks here will encourage the orderly and fair administration of justice.
[29] In this case, there are no significant confidentiality or privacy or commercial sensitivity concerns, and those that exist can be managed by CPT’s agreement not to disclose the information to any unrelated third party except for the sole purpose of seeking and/or obtaining legal advice. Granting CPT access to the pleadings with that restriction will not result in undue publication about PSE’s involvement in the proceedings, or the disclosure of commercially sensitive information to competitors. I do not accept that release of the documents requested will invariably result in the release of information that would derive from discovery.
[30] In GFD I LPP v Melview (Kawarau Falls Station) Investments Ltd, Winkelmann J granted access to the pleadings to a law firm representing plaintiffs in an existing parallel proceeding relating to the same property development.8 The proceedings at hand were still to go to trial. The Judge refused access to all other
8 GFD I LPP v Melview (Kawarau Falls Station) Investments Ltd (in receivership) [2012] NZHC 677.
requested documents as the law firm “had not shown any legitimate interest in the contents of the file beyond the pleadings”.9
[31] In Fuji Xerox New Zealand Ltd v Whittaker, a law firm was denied access to a statement of claim in proceedings that were at an interlocutory stage.10 The firm claimed that a client was currently in a dispute with the plaintiff in those proceedings and considered that the statement of claim would contain allegations relevant to its client’s dispute. Jagose J refused access because the law firm did not set out the purpose for which access was sought, did not identify its client or give any details about the claimed dispute, and did not set out any proposed conditions that might attach to a right of access. The Judge considered that the request did not satisfy the application requirements under r 11, which meant he could not make a full assessment of the request taking into account the considerations in rr 12 and 13.
[32] Here, CPT has given details about its position and provided justifiable reasons for seeking access to the pleadings. CPT has proposed a condition that will limit access to the documents to CPT and its lawyers for the purpose of seeking or providing legal advice. Any concerns about privacy and confidentiality, reputational damage and commercial sensitivity can be addressed through the condition I will impose. In these circumstances, it is appropriate to grant the application.
[33] I accordingly allow CPT access to the documents as requested. Access is granted on condition that Wynn Williams, the solicitors for CPT, and CPT will use those documents only for the purpose of seeking, obtaining or providing legal advice and will not be disclosed to any unrelated third party.
Solicitors:
Wynn Williams, Christchurch Parry Field Lawyers, Christchurch Peter Dalziel, Temuka
G M Brodie, Barrister, Christchurch Crown Law, Wellington.
9 At [16].
10 Fuji Xerox New Zealand Ltd v Whittaker [2018] NZHC 1043.
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