CPB Contractors Limited v Aecom New Zealand Limited

[2021] NZHC 2512

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-002177

[2021] NZHC 2512

BETWEEN

CPB CONTRACTORS PTY LIMITED

First Plaintiff

AND

HEB CONSTRUCTION LIMITED

Second Plaintiff

AND

AECOM NEW ZEALAND LIMITED

First Defendant

AND

AECOM CONSULTING SERVICES (NZ) LIMITED

Second Defendant

Hearing:

On the papers

Counsel:

D R Bigio QC and R M Norris for the Plaintiffs

A S Ross QC and M A H Macfarlane for the Defendants

Judgment:

23 September 2021

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 23 September 2021 at 4.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Anderson Lloyd, Christchurch Hesketh Henry, Auckland Shortland Chambers, Auckland

CPB CONTRACTORS PTY LIMITED v AECOM NEW ZEALAND LIMITED [2021] NZHC 2512 [23
September 2021]

Introduction

[1]                  Hamish Cardwell of Radio New Zealand has applied under the Senior Courts (Access to Court Documents) Rules 2017 (the Rules) for access to documents in the present civil proceeding. Specifically, Mr Cardwell seeks:

Any judgements, findings or statements or anything issued from the judge relating to the matter.

[2]                  The proceeding concerns a contractual dispute in relation to the tendering process for the construction of the Transmission Gully project.

Relevant rules

[3]Rule 8(1) of the Rules provides:

Every person has the right to access the formal court record relating to a civil proceeding.

[4]                  However, r 8(1) is subject to r 5, which provides that the Rules do not affect the Court’s inherent power to control its own proceedings and that a judge may direct that “judgments, orders, documents, or files of any kind” may not be accessed without the permission of a judge.

[5]                  Rule 11(2) provides that any person may apply for access to a document not covered by r 8 by providing the information required under the rule to the Registrar.

[6]                  Rule 12 sets out the matters to be considered when determining a request for access under r 11.

[7]                  Rule 13 sets out the considerations to which regard must be had in applying   r 12.

Positions of parties to the proceeding

[8]                  In accordance with r 11(3), the Registrar gave a copy of the request to the parties’ counsel who have filed memoranda on how they consider the request should be determined.

[9]                  Counsel for the plaintiffs advise that the plaintiffs do not object to access being provided to documents covered by r 8. They also note that a judgment issued by Venning J on 5 July 2021 on the defendants’ application for further discovery is publicly available and is not subject to any suppression orders.1

[10]              Counsel for the plaintiffs submit, however, that access should not be provided to any other documents, including affidavits and pleadings. Among other things, they note that some interlocutory steps, including discovery, have yet to be completed, that the hearing is likely to be two years away and that the pleadings may yet change.

[11]              Counsel for the defendants submit that access should be given only to the judgment of Venning J and oppose the release of any other documents. They submit that minutes dealing with case management matters have little, if any, public interest when the parties are not public sector organisations and the proceeding is still some time to the substantive hearing.

Discussion

[12]The definition of “formal court record” in r 4 includes:

(d)a judgment, an order, or a minute of the court, including any record of the reasons given by a Judge:

[13]              Since judges’ decisions are given by way of judgment, order or minute, I interpret Mr Cardwell’s request as embracing but not extending beyond these categories of document. I do not consider the request includes pleadings or affidavits which, under the Rules, are not part of the formal court record except in circumstances that do not apply in the present case.2

[14]              In the present case, the documents that comprise the formal court record are the judgment of Venning J and 10 minutes dealing with case management matters, usually on the basis of consent memoranda.

1      CPB Contractors Pty Ltd v Aecom New Zealand Ltd [2021] NZHC 1649.

2      The definition of “formal court record” includes a document that may be accessed under an enactment other than the Rules or that constitutes notice of its contents to the public.

[15]              As defence counsel observe, there is unlikely to be significant public interest in case management minutes. Nonetheless, the minutes are part of the formal record to which the public have a right of access under r 8, subject to the exercise of the Court’s powers under r 5. Moreover, Mr Cardwell’s request for “anything issued from the judge relating to the matter” clearly embraces the minutes.

[16]              While the power in r 5 to restrict access to documents is wide, as Palmer J observed in Deng v Ye, albeit in relation to r 8(2), the conferral of a “right” on “every person” is strong language.3 For that reason, Palmer J considered that the power to limit access under r 5 should be exercised only with good reason, given the otherwise mandatory nature of the default right under r 8(2).4

[17]I agree with Palmer J’s analysis, which applies equally to r 8(1).

[18]              Despite the prosaic nature of case management minutes, I do not consider an asserted lack of public interest to be a good reason for withholding access, particularly given the terms of the request. There is also evident and understandable public interest in a project that entails a significant expenditure of public funds, even if the parties to the proceeding are not public sector bodies.

[19]              For those reasons, I am satisfied that Mr Cardwell should be provided access to the minutes as well as the judgment of Venning J.

Result

[20]              I order that Mr Cardwell be provided access to the judgment of Venning J and to the minutes that have been issued in this proceeding.

G J van Bohemen J

3      Deng v Ye [2018] NZHC 928, (2018) 24 PRNZ 38 at [9].

4      Ibid.