Donaldson v Skyking Investments Limited

[2019] NZHC 3083

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-597

[2019] NZHC 3083

BETWEEN

BRETT ROYCE DONALDSON

Plaintiff

AND

JONATHAN CHISWELL
Second Plaintiff

AND

STEPHEN WILTON

Third Plaintiff

AND

SKYKING INVESTMENTS LIMITED

First Defendant

continued over page

Hearing:

On the papers

Appearances:

V Young in person, for BusinessDesk P L Rice for the plaintiffs

No appearance by the first to third defendants
P M Fee and R M Stewart for the fourth defendant

Judgment:

26 November 2019

JUDGMENT OF PALMER J

The judgment was delivered by me on Tuesday 26 November 2019 at 3.00pm.

Pursuant to Rule 11.5 of the High Court Rules

……………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

V Young, BusinessDesk

P L Rice, Barrister, Auckland Fee Langstone, Auckland Kelly Flavell Law, Auckland

DONALDSON v SKYKING INVESTMENTS LIMITED [2019] NZHC 3083 [26 November 2019]

ANDOCEAN PACIFIC RESORT HOLDINGS LIMITED

Second Defendant

ANDKEVIN STOREY AND BRENT GIBSON

Third Defendants

AND  CASTLE BROWN

Fourth Defendant

What happened?

[1]    In 2005 and 2006, the first three defendants sold properties in a development in Fiji to the plaintiffs. The plaintiffs sued the first three defendants, and their lawyer the fourth defendant, regarding encumbrances over the titles of the properties. The plaintiffs filed three amended statements of claim, the first to third defendants filed four amended statements of defence and the fourth defendant filed three amended statements of defence.

[2]    In September 2018, Associate Judge Sargisson identified significant hurdles for the plaintiffs’ causes of action and required the plaintiffs, jointly, to provide security of $26,000.1 The security was provided but costs on that application were not paid. On 13 December 2018, Brewer J declined an application to stay the proceeding because of that.2 Evidence was filed in relation to both applications.

[3]    Ms Victoria Young published a story in the National Business Review (NBR) about the proceeding on 13 December 2018. Around the same time, she requested access to the minutes and judgments on the court file. Jagose J granted Ms Young conditional access but prohibited her from disclosing the information in them until the first day of trial.3

[4]    On 14 February 2019, before the one-day trial scheduled for 25 February 2019, the proceeding settled and the plaintiffs discontinued. Mr Rice, for the fourth defendant, tells me the settlement was subject to confidentiality orders. Ms Young, now from BusinessDesk, requests access to all documents on the file.

Relevant law of media access to a court file

[5]    Section 173(1) of the Senior Courts Act 2016 provides “[a]ny person may have access to court information of a senior court to the extent provided by, and in accordance with, rules of court”. Rule 8(1) of the Senior Courts (Access to Court Documents) Rules 2017 (the Rules) provides every person has a right to access the

1      Donaldson v Skyking Investments Ltd [2018] NZHC 2398.

2      Donaldson v Skyking Investments Ltd [2018] NZHC 3299.

3      Minute, 19 December 2018.

“formal court record” relating to a civil proceeding which, under r 4, includes judgments, orders and minutes by a judge. Under r 12, I must consider the nature of, and the reasons for a request for other information, and must take into account, relevantly:

(a)the orderly and fair administration of justice:

…

(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:

…

(h)       any other matter that the Judge thinks appropriate.

[6]    Rule 13(a) provides that, before the substantive hearing, the protection of confidentiality and privacy interests and the orderly administration of justice may require that access to documents be limited.

[7]    Section 14 of the New Zealand Bill of Rights 1990 requires a judge’s decision must be consistent with the right to freedom of expression, subject only to such limitations as can be demonstrably justified in a free and democratic society.

[8]    In Crimson Consulting Ltd v Berry, the Court of Appeal clarified the legal principles relevant to these rules. The Court upheld my release of redacted statements of claim and defence and refusal of access to evidence and memoranda. It held:4

4      Crimson Consulting Ltd v Berry [2018] NZCA 460, [2019] NZAR 30.

(a)“[T]he principle of open justice is fundamental to the common law system of civil and criminal justice” and it was engaged in the application by a media organisation there.5

(b)Rule 12(c) “can be seen as giving particular emphasis to protecting the privacy of civil disputes between individuals”.6 Like this one, that was a case which settled at an early stage.

(c)The principle of open justice and the right to receive information must be balanced against the orderly and fair administration of justice and the right to privacy.7

(d)The deterrence of parties from issuing proceedings, because of fear of immediate and damaging publicity relating to recently formed and untested allegations, endangered the orderly and fair administration of justice.8

(e)It was clear the principle of open justice, and the freedom to seek information, are important factors “which do not cease to work in the pre-trial stage”.9

(f)“[I]t is important the public know generally what type of business is being conducted in the courts of New Zealand” and “[t]ransparency of the court process at all stages is in the public interest”.10

Submissions

[9]    Ms Young submits she wants access to all documents on the file in order to understand what happened in the case. The plaintiffs make no objection. The first three defendants make no submissions.

5 At [33].

6 At [35].

7 At [37].

8 At [39].

9 At [40].

10 At [40].

[10]   Ms Fee, for Castle Brown the fourth defendant, submits that allowing access to the documents requested would render the confidentiality terms, between the parties, nugatory. She notes the documents include pleadings which contain allegations against the fourth defendant, and minutes and judgments, one of which outlines the allegations. She submits the allegations remain untested and reporting would be prejudicial to the professional work of the fourth defendant.

Should documents be released to Ms Young?

[11]   I do not consider there is any reason to deny Ms Young’s right to access the judgments, orders and minutes that form part of the formal court record under rr 4 and 8(1) of the Rules. They record the decisions of the courts of New Zealand in the proceeding. I cannot discern any limitation of the application of the principle of open justice, the right to receive that information and the transparency of the court process that would justify withholding that information. The confidentiality agreement between the parties, which is not itself before the Court, does not override that.

[12]   I consider the same applies to the last versions of the statements of claim and defence: the third amended statement of claim, filed 2 October 2018; the fourth amended statement of defence of the first three defendants, filed 4 December 2018; and the third amended statement of defence of the fourth defendant, filed 15 October 2018. Access to the pleadings and the judgments and minutes maintains the transparency of court proceedings which is essential to maintain public confidence in the administration of justice. Ms Young will need to bear in mind, in any reporting, that the allegations and counter-allegations were not tested in court.

[13]   However, I do not consider the same applies to the two procedural applications and their supporting evidence. There is little public interest in those when the resulting judgments are available and there was no substantive hearing of the case. The evidence supporting the parties’ positions on the application for security for costs also contains private information. The parties are entitled to protection of privacy within reasonable limits, given they have not aired their dispute in public.

Result

[14]   I grant Ms Young access to the judgments and minutes in this proceeding, and the last pleadings of the parties.

Palmer J