Cridge v Studorp Limited
[2020] NZHC 1836
•28 July 2020
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
PlaintiffsAND
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 Cridge. It is also said to avoid a present asymmetry in which the defendants have knowledge of the material on the Court file and the White plaintiffs do not.
[5] It is noted that the material is not for the purposes of public reporting or wider dissemination. The material will be kept in the custody of the solicitors for the White plaintiffs for the purpose of efficiently preparing the plaintiffs’ case in that proceeding. It is not intended to be disclosed or used outside the context of the White proceedings. It is not anticipated that the file will contain sensitive or commercial information, but if it does, appropriate undertakings will be provided. The purpose of the application is to avoid the need to have someone in Court observing the present proceedings.
[6] The applicants date the disclosure request from the start of trial. This reflects r 13 of the Rules. That rule makes relevant the stage of the proceeding at which an access application is made. Rule 13(b) provides that during the substantive hearing, open justice has greater weight than at other stages of the proceedings, and has greater weight in relation to documents relied on in the hearing than in relation to other documents. The applicant relies on the following passage from Greymouth Petroleum Holdings Ltd v Empresa Nacionale Del Petroleo:5
When a court is engaged in hearing a dispute its workings, including documents referred to or relied on, should be open to full scrutiny by all members of the public, unless there are particular and strong reasons to the contrary… However, prior to and after the substantive hearing, the importance
4 This is partially incorrect. This proceeding involves only the product “Harditex”; I understand the
White proceeding also involves a further product known as “Titan”.
5 Greymouth Petroleum Holdings Ltd v Empresa Nacionale Del Petroleo [2017] NZCA 490, [2017] NZAR 1617 at [25].
of public scrutiny is less… Prior to the hearing there is no guarantee the case will go to hearing at all. Therefore open justice has less weight.
[7] The plaintiffs oppose the application and request that it be declined in its entirety, other than it is accepted that the Rules allow access to the formal Court record.6 It is noted that the request is in effect for unfettered access to the entire contents of the Court file. The plaintiffs note that they have incurred several million dollars of legal expert and other expenses to prepare their case for hearing. The plaintiffs in the White proceeding had the option to opt in to this proceeding, but chose instead to bring their own proceedings. The plaintiffs submit that the Rules should not be used in the way that the applicant seeks.
[8] It is submitted that the application provides no basis for a conclusion that open justice, transparency or fairness would be endangered by a refusal of access. The plaintiffs submit that the application is vague as are the reasons provided in support of the application – there being talk of “efficiencies”, “opportunities for efficiency”, “unnecessary duplication of effort”, “will assist the Court”, and “the efficient disposition of the White proceeding.”
[9] It is submitted that the nature of the request makes it plain that it is not motivated by open justice principles, but by a desire to take advantage of the significant work undertaken by the plaintiffs. The plaintiffs note that the White plaintiffs do not advise when the briefs in that case are to be filed, but it is inferred from working back from the White trial date that the White plaintiffs must be well advanced in their briefing of evidence. If that is so, there is no need to have access to the present evidence. If it is not so, then it is plain that they are seeking to save themselves costs at the Cridge plaintiffs’ expense. The plaintiffs emphasise their submission that this application has nothing to do with open justice principles.
[10] The plaintiffs further submit that they should be able to conduct their private dispute without scrutiny or interference by non-parties who have not provided sufficient reason for such wholesale access to the file. Various authorities, some of which I will comment on, are noted.
6 Senior Courts (Access to Court Documents) Rules 2017, r 8(1). See also [2(a)] of this judgment.
[11] The defendants also oppose the application. Whilst generally agreeing with the grounds of opposition advanced by the plaintiffs, the defendants advance further reasons which, in their submission, are relevant. The defendants submit it is an inappropriate attempt by the White plaintiffs to gain a tactical advantage in their pursuit of their proceeding in a manner that will usurp the timetable in the White proceeding for the exchange of evidence.
[12] By way of principle, the defendants note that it is clear there is no presumption in favour of disclosure;7 the existence of parallel proceedings is not regarded as a “particularly compelling” justification for access;8 the existence of parallel litigation is a weaker reason in support when, as here, the present proceeding was filed first and the White plaintiffs chose not to opt in but to commence their own proceeding.
[13] As did the plaintiffs, it is emphasised that the applicant seeks access purely for its own private benefit, and the principles of open justice do not underlie the application. The defendants query reliance on the similarity in the proceedings. The White plaintiffs considered it appropriate to “go their own way” by initiating competing litigation, and it is submitted it is inconsistent to then rely on similarity.
[14] The defendants say that giving this type of access to the White plaintiffs would grant them an unprecedented tactical advantage. It is accepted that the White plaintiffs may observe the court proceedings in the present case, but it would be a substantial and unfair step to provide them with access to all the material in the contemporaneous way that is contemplated. It is suggested that the defendants would be faced with the prospect of having to deal with “multiple fronts” during the course of the present trial if the type of access contemplated were then used by the White plaintiffs to bring their own applications.
Assessment
[15]The application is governed by rr 12 and 13 of the rules which provide:
12Matters to be considered
7 Crimson Consulting v Berry [2018] NZCA 460, [2019] NZLR 30 at [16]; Schenker AG and Schenker (NZ) Ltd v Commerce Commission [2013] NZCA 114, [2015] NZAR 1561 at [21].
8 BNZ Investments Ltd v Commissioner of Inland Revenue (2009) 20 PRNZ 311 (HC) at [38].
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.
13Approach 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 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.
[16] Other than the application for access to the formal Court record, which is not opposed and is granted,9 the application falls within the Court’s discretion. That discretion is to be exercised in accordance with the rules just cited. I accept that there is no presumption in favour of disclosure, but note that the effect of r 13(b) is to accord open justice a higher priority at the operative date of the application. In the context of these rules, that can only mean that access to information covered by the Rules is to be given greater weight than at other stages of the proceedings. The following passage from Greymouth Petroleum Holdings explains the principles underlying this distinction:10
[25] These divisions [in stages of the proceeding] reflect that during the substantive hearing open justice has greater weight, in particular in relation to documents admitted in evidence. When a court is engaged in hearing a dispute its workings, including documents referred to or relied on, should be open to full scrutiny by all members of the public, unless there are particular and strong reasons to the contrary. The public should be able to follow and understand the hearing process. However, prior to and after the substantive hearing, the importance of public scrutiny is less, as the court is not hearing and resolving the dispute. Prior to the hearing there is no guarantee the case will go to hearing at all. Therefore open justice has less weight. The parties are entitled to the protection of confidentiality and privacy within reasonable limits, given that they have not at that point aired the dispute in public. After the substantive hearing the need for public scrutiny diminishes in importance as time moves on. Parties are entitled to expect that the need for open justice has been met by full access during the substantive hearing stage, and that personal information not part of the formal court record or the decision will be given greater protection as the years go by. This is particularly so in a civil case as distinct from a criminal case where these considerations, while relevant, may have less weight because of the particular public interest in criminal prosecutions.
[17] It is clear that the principle of full scrutiny by the public to enable it to follow the proceeding underpins the principle of greater access during trial. The reality here is that the application has little to do with public access and participation in the proceedings. Indeed, a reason given for the access application is that it would save the White plaintiffs the cost and endeavour in arranging for someone to sit in through the proceedings. The inference being that if access is given, then there will be no attempt to follow the proceeding itself.
9 Pursuant to Senior Courts (Access to Court Documents) Rules, r 8(1).
10 Greymouth Petroleum Holdings Ltd, above n 5, footnote omitted.
[18] I have been referred to a number of decisions in what could broadly be called parallel proceedings situations.11 As might be expected, no settled approach is evident. This no doubt reflects that the scope of the request, and the reason for it, as well as the timing, will be all relevant factors.
[19] For two primary reasons I consider the application for essentially the entire trial file should be declined. The first reason is that already referred to, which is that the reason underlying the application does not reflect the purposes underlying the access Rules.
[20] The second reason relates to the fair and efficient administration of justice consideration. Concerning efficiency, while there might be some gains for the system, how much they are is not clear. The White proceedings will still take their normal course; any efficiencies relate more to the interests of the White plaintiffs than the system generally. Also in relation to efficiencies, it is difficult to see that parallel proceedings of this type should be encouraged. They appear at this point to be occupying a large amount of judicial and court resource, and there must inevitably be considerable duplication. To the extent that granting this sort of access will encourage parallel proceedings of this type, in my view the application should be resisted.
[21] Against that background, I also consider there is unfairness to the present plaintiffs who filed their proceedings first and obtained the necessary orders for others to join into the litigation. Considerable effort and expense have gone into getting the trial to commencement, and I consider there is merit in the proposition that both parties should be able to now present their cases and have a decision on them before access to the full case is considered. The parties to this proceeding have different motivations for presenting that proposition but in combination it has validity.
[22] If an application is made subsequent to judgment, that will need to be considered at the time. Notwithstanding the difference in emphasis within the Rules for the post-trial phase, with parallel litigation there may be merit in allowing access
11 GFD I LLP v Melview (Kawerau Falls Station) Investment Ltd (in rec) [2012] NZHC 677, (2012) 21 PRNZ 125; Commerce Commission v Air New Zealand Ltd [2012] NZHC 271; Tempest Litigation Funders Ltd v Kamal [2020] NZHC 193; and BNZ Investments Ltd v Commissioner of Inland Revenue, above n 8.
to material which, to the extent necessary, allows a full understanding of the decision in the present proceeding and its scope.
[23] I am of the view that there should be an exception to this general conclusion. There would be sense in the applicant having access to the statement of claim and statement of defence. It is, of course, the pleadings that define the true scope of the proceeding and having access to those documents will assist the White plaintiffs in their assessment of the implications of any decision reached in the present case. The access application is requested to take effect at the start of trial. That is when access to the pleadings will be granted. This timing allows the present parties to apply if there is any material in the statement of claim and statement of defence concerning which redaction is sought.
Orders
[24] The applicant is entitled to access to the formal Court record. This order takes effect immediately.
[25] The applicant is entitled to a copy of the statement of claim and statement of defence as at 17 August 2020. This is subject to any redactions that may be requested and are granted.
[26]The application is otherwise declined.
Simon France J
Solicitors:
Parker & Associates, Wellington for Plaintiffs Chapman Tripp, Wellington for Defendants
Adina Thorn Lawyers, Auckland for Applicant in a parallel proceeding
9
0