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Cridge v Studorp Limited

Cridge v Studorp Limited

Case [2020] NZHC 1836 28 July 2020

Jurisdiction

Discovery & Disclosure

Open Justice

Class Actions

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2015-485-594

[2020] NZHC 1836

BETWEEN
T J CRIDGE and M A UNWIN

Plaintiffs

AND

STUDORP LIMITED

Defendant

CIV-2015-485-773

BETWEEN

K M FOWLER and S WOODHEAD
Plaintiffs

AND

STUDORP LIMITED

Defendant

AND

JAMES HARDIE NEW ZEALAND LIMITED

Second Defendant

On the papers

Counsel:

J A Farmer QC, D J S Parker and E S K Dalzell for Plaintiffs J A McKay for Defendants

A J Thorn for Applicant in a parallel proceeding

Judgment:

28 July 2020

JUDGMENT OF SIMON FRANCE J (ACCESS TO COURT DOCUMENTS)

[1] In this proceeding, the plaintiffs allege that a construction product, Harditex, was deficient and not fit for purpose. The named plaintiffs represent a large group of plaintiffs, and the proceeding has previously been accorded class action status, with

CRIDGE & ANOR v STUDORP LTD [2020] NZHC 1836 [28 July 2020]

representative orders having been made together with orders for class member opt-in.1 This decision was affirmed on appeal.2 The trial is scheduled to commence on 17 August this year.

[2] There is a largely parallel proceeding to be heard in the Auckland High Court next year.3 The plaintiffs in the parallel “White proceeding” seek access to documents in this proceeding, the “Cridge proceeding”. The following is sought:

(a)copies of all documents from the file falling within the definition of “formal court record” as defined in the Senior Courts (Access to Court Documents) Rules 2017 (the Rules);

(b)the right to inspect all documents on the Court file which are not subject to any applicable confidentiality or privilege restriction;

(c)copies of any document requested. The request is limited to material relating to the plaintiff and defendant and does not relate to third-party material;

(d)from the commencement of the Cridge trial on 17 August 2020, a right to receive copies of:

(i)all opening and closing submissions after they are read in Court;

(ii)all briefs of evidence after they are read in Court;

(iii)the notes of evidence/transcripts from the trial as they are produced; and

(iv)any material handed up to the Court during the trial.

1      Cridge v Studorp Ltd [2016] NZHC 2451, (2016) 23 PRNZ 281.
2      Cridge v Studorp Ltd [2017] NZCA 376 and Studorp Ltd v Cridge [2017] NZSC 178.
3      White v James Hardie New Zealand Ltd HC Auckland CIV-2015-404-2981 and CIV-2015-404- 3080.

[3]The applications are opposed by both the plaintiffs and the defendants in the

Cridge proceeding.

[4] The applicant supports its application first by noting the substantial factual and legal overlap between the proceedings. It is noted that each proceeding has the same defendant, and involves the same products.4 It is said that disclosure of the material on the Court file will allow the parties in the White proceeding to avoid unnecessary duplication of effort. This in turn is said to assist the Court by refining and narrowing the parties’ approach on interlocutory and substantive issues which have already arisen in

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cridge v Studorp Limited

Details

AGLC: Cridge v Studorp Limited [2020] NZHC 1836
Case: [2020] NZHC 1836
Decision Date: 28 July 2020

CaseChat Overview and Summary

In this case, the plaintiffs in a class action proceeding brought against Studorp Limited sought access to documents from a parallel proceeding. The plaintiffs in the parallel proceeding were represented by Adina Thorn Lawyers, while the plaintiffs and defendants in the original proceeding were represented by Parker & Associates and Chapman Tripp, respectively. The plaintiffs in the parallel proceeding sought access to the entire court file from the original proceeding, including documents that were not subject to any confidentiality or privilege restrictions. They also sought the right to inspect all documents on the court file, copies of any requested documents, and access to documents produced during the trial of the original proceeding.

The plaintiffs and defendants in the original proceeding opposed the application, arguing that it was not motivated by the principles of open justice but rather by a desire to take advantage of the significant work undertaken by the plaintiffs in the original proceeding. They also argued that the request was vague and did not provide sufficient reason for such wholesale access to the file. The defendants further argued that granting the application would give the plaintiffs in the parallel proceeding an unprecedented tactical advantage and would usurp the timetable in their own proceeding for the exchange of evidence.

The court considered the application under the Senior Courts (Access to Court Documents) Rules 2017, which provide for the access to court documents. The court noted that there was no presumption in favour of disclosure and that the existence of parallel proceedings was not a "particularly compelling" justification for access. The court also noted that the principles of open justice did not underlie the application and that the request was primarily motivated by a desire to save costs at the expense of the plaintiffs in the original proceeding. The court concluded that the application for essentially the entire trial file should be declined, as it did not reflect the purposes underlying the access Rules and would result in unfairness to the plaintiffs in the original proceeding. The court also noted that granting the application would encourage parallel proceedings of this type, which appeared to be occupying a large amount of judicial and court resources and would inevitably result in considerable duplication.

However, the court made an exception for the statement of claim and statement of defence, which define the true scope of the proceeding and would assist the plaintiffs in the parallel proceeding in their assessment of the implications of any decision reached in the present case. The court ordered that the applicant be entitled to access to the formal Court record and a copy of the statement of claim and statement of defence as at 17 August 2020, subject to any redactions that may be requested and are granted. The application was otherwise declined.

Orders