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Crimson Consulting Ltd v Berry

Crimson Consulting Ltd v Berry

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Case Copied 29 October 2018 26 min read

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA722/2017
[2018] NZCA 460

BETWEEN	CRIMSON CONSULTING LIMITED Appellant
AND	SAMANTHA MARIE BERRY Respondent

Hearing:	15 August 2018 (further submissions received 10 October 2018)
Court:	Cooper, Asher and Gilbert JJ
Counsel:	T J P Bowler for Appellant T C Goatley for NZME Publishing Ltd
Judgment:	29 October 2018 at 11 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellant must pay NZME costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Introduction

This appeal involves an application for access to court documents that was made after the settlement and discontinuance of a High Court proceeding prior to trial. In the decision appealed from Palmer J, while directing that much of the file was not to be accessed, ordered that The New Zealand Herald, owned by NZME Publishing Ltd (NZME), and the National Business Review (the NBR) be granted access to redacted versions of the statement of claim and statement of defence.[1] The appellant Crimson Consulting Ltd (Crimson), the defendant in the substantive proceedings, contests that ruling and asserts that there should be no access at all. NZME opposes the appeal, but does not cross-appeal the Judge’s decision to grant only limited access with redactions. The former plaintiff in the substantive proceedings, Samantha Berry, has taken no steps in this appeal and took no position on access before Palmer J.

Background

[1]Berry v Crimson Consulting Ltd [2017] NZHC 3026.

Ms Berry is an educational consultant. She had sold a business (UniTutor) to Crimson and worked for that company as an employee. She resigned in acrimonious circumstances and shortly thereafter Crimson sought interim relief in relation to her work in the Employment Relations Authority. Those proceedings were transferred to the Employment Court. Interim directions were made restricting publication of details of that proceeding.
Later Crimson filed proceedings in the High Court seeking an interim injunction against Ms Berry, and Ms Berry in due course then filed substantive proceedings for breach of contract. On 26 June 2017 Associate Judge Bell by a minute in the High Court declined a request by the NBR to inspect the Court file, but left open the issue of further requests.[2]
[2]Berry v Crimson Consulting Ltd HC Auckland CIV-2016-494-2933, 26 June 2017 (Minute of Associate Judge Bell).
On 9 October 2017 Crimson and Ms Berry settled all matters between them in both the Employment Court and the High Court. On 23 November 2017 Judge Corkill of the Employment Court made permanent non-publication orders in relation to commercially sensitive information and allegations that were irrelevant to the proceeding.[3] The Judge also ordered that the Court file could only be inspected with leave of a judge.
[3]Crimson Consulting Ltd v Berry [2017] NZEmpC 148.
Crimson then applied to the High Court in these proceedings to permanently seal the Court file. This request was not opposed by Ms…

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.

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Details

Case: [2018] NZCA 460
Decision Date: 29 October 2018 at 11 am

CaseChat Overview and Summary

Crimson Consulting Ltd brought an appeal against the decision of Palmer J to allow The New Zealand Herald and the National Business Review access to redacted versions of the statement of claim and statement of defence in a proceeding between Crimson and Samantha Berry. The appeal was dismissed by the Court of Appeal. The Court of Appeal held that the decision to grant limited access to the redacted pleadings was correct. The Court found that the decision to grant access was an evaluative decision warranting a full evaluative review on appeal. The Court found that the decision to grant limited access to the redacted pleadings was correct. The Court noted that the access application related to a proceeding that was settled prior to trial and there was no hearing, and given that it involved a dispute between private entities, other matters set out in r 12 of the Senior Courts (Access to Court Documents) Rules 2017 had particular significance. The Court found that the need to have transparency in Court proceedings was met by redaction and access. The Court found that the principle of open justice and the freedom to seek information must be balanced against the orderly and fair administration of justice and the right to privacy. The Court found that to allow access to the redacted statement of claim and statement of defence and refuse access to the evidence and memoranda on the Court file strikes the correct balance. The Court found that there was no undue interference with the privacy of the parties, and the public confidence in the administration of justice can be maintained, while the nature of the dispute and thus the business of the Court can be known by the public. The Court found that there is nothing in the allegations and denials that has a particular pejorative or personal flavour. The Court found that the procedural steps taken by Palmer J, and his end conclusion on the balancing process, were correct. The Court found that the decision to grant limited access to the redacted pleadings was correct. The Court also found that the appeal was not an indulgence, and that The New Zealand Herald had a direct and legitimate interest in the outcome of the appeal. The Court found that there was nothing in the circumstances of this appeal to warrant a departure from the usual approach to costs. The Court found that the appellant must pay The New Zealand Herald costs for a standard appeal on a band A basis and usual disbursements.

Orders