DairyWorks Limited v Geraldine Cheese Company Limited

[2022] NZHC 2754

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2021-476-36

[2022] NZHC 2754

BETWEEN

DAIRYWORKS LIMITED

Plaintiff

AND

GERALDINE CHEESE COMPANY LIMITED

First Defendant

MANUKA LAND HOLDINGS LIMITED
Second Defendant

WILLIAM PAUL FITZSIMONS

Third Defendant

Hearing:	(Dealt with on the papers)
Judgment:	26 October 2022

JUDGMENT OF EATON J

DAIRYWORKS LTD v GERALDINE CHEESE COMPANY LTD [2022] NZHC 2754 [26 October 2022]

[1]    Ms Bridget O’Connell, a journalist reporting on businesses in the food and beverage sector, has applied for access to any publicly available documents, filings and submissions in this proceeding.

[2]    Ms O’Connell’s request is made pursuant to the Senior Courts (Access to Court Documents) Rules 2017 (the Rules). The parties have been invited to make a submission on the application. The defendants oppose the application. The plaintiffs have not responded.

[3]    Rule 8(1) states: “Every person has the right to access the formal court record relating to a civil proceeding.” Rule 4 defines “formal court record” as including “a judgment, an order or a minute of the Court, including any record of the reasons given by a Judge”.

[4]    The Court  file includes  a costs  judgment  of Associate Judge Lester dated   9 March 2022. That is a judgment that is publicly available on the New Zealand Legal Information Institute (NZLII) website. The Court file also includes a number of minutes.

Should the minutes be released?

[5]    The costs judgment summarises and deals with the issues raised in earlier minutes. Those minutes relate to an unsuccessful application for formal proof. I agree with Mr Brodie that the formal proof application was in the nature of an interlocutory application. Documents arising from an interlocutory application are excluded from the definition of civil proceeding.1 One of the minutes dealing with the formal proof application makes reference to allegations within the statement of claim. The statement of claim does not form part of the formal court record and is therefore not covered by the general right of access in r 8.

[6]Rule 5 provides as follows:

1      Senior Courts (Access to Court Documents) Rules 2017, rule 4

5        Rules do not limit court’s powers

(1)These rules do not affect the court’s inherent power to control its own proceedings.

(2)Without limiting subclause (1), a Judge may, on his or her own initiative or on request, direct that judgments, orders, documents, or files of any kind may not be accessed without the permission of the Judge.

[7]    I accept the submission made by Mr Brodie that the Court should exercise its powers under r 5(2) and decline access to the court minutes on the ground the minutes relate to procedural steps akin to interlocutory application and the further ground the most substantial minute contains references to extracts from documents that do not form part of the formal court record.

[8]    The costs judgment is available to Ms O’Connell. Any application under r 11 to access documents that do not form part of the formal court record will need to address r 12 and 13.

[9]    I decline Ms O’Connell’s application for access to the publicly available documents other than to the costs judgment to which she is entitled under r 8. The minutes are not to be accessed without the permission of a Judge.

...................................................

Eaton J

Solicitors:
Anthony Harper, Christchurch

Copy to:

G M Brodie, Barrister, Christchurch Peter Dalziel, Barrister, Temuka