Electrix Ltd v Fletcher Construction Co Ltd - [2019] NZHC 2678

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-378

[2019] NZHC 2678

BETWEEN
ELECTRIX LIMITED

Plaintiff

AND

THE FLETCHER CONSTRUCTION COMPANY LIMITED

Defendant

Hearing: 11 October 2019

Appearances:

K M Quinn and S C I Jeffs for the plaintiff

K W Fulton and M N Rathod for the defendant

Judgment:

18 October 2019

JUDGMENT No 1 OF PALMER J

(Media application)

The judgment was delivered by me on 18 October 2019 at 4.45pm.
Pursuant to Rule 11.5 of the High Court Rules

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

Counsel/Solicitors:
K M Quinn Barrister, Auckland K W Fulton Barrister, Auckland Burton Partners, Auckland
Craig Griffin Lord, Auckland BusinessDesk, Auckland

ELECTRIX LIMITED v THE FLETCHER CONSTRUCTION COMPANY LIMITED [2019] NZHC 2678 [18
October 2019]

The proceeding and application

[1] Electrix Ltd sues the Fletcher Construction Company Ltd, for payment for work done on the Christchurch Justice and Emergency Services Precinct project. Fletcher Construction counterclaims against Electrix. The four-week trial started on 7 October 2019. The plaintiff’s witnesses are still giving evidence. By consent, I have agreed that commercially confidential information, in a very few documents, not be read in open court or reflected in the judgment before consultation with the parties.

[2] Ms Victoria Young, from Businessdesk, reported on the start of the trial. She applies for:

(a)access to a copy of:

(i)the opening for the counterclaim presented by the defendant’s counsel;

(ii)any minutes and judgments on the file to date;

(iii)a copy of the closing arguments as they are delivered;

(b)access to the file including but not limited to:

(i)statements of claim and defence (and counterclaim); and

(ii)briefs of evidence.

Law of access to court documents

[3] 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”. Rules 8(1) and 4 of the Senior Courts (Access to Court Documents) Rules 2017 (the Rules) provide every person has a right to access the “formal court record” relating to a civil proceeding, which 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:

(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.

[4] Rule 13(b) provides…

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: [2019] NZHC 2678
Decision Date: 18 October 2019

CaseChat Overview and Summary

Electrix Limited, a plaintiff, is suing The Fletcher Construction Company Limited, the defendant, for payment for work done on the Christchurch Justice and Emergency Services Precinct project. Fletcher Construction has filed a counterclaim against Electrix. The court proceedings began on 7 October 2019, and the plaintiff's witnesses are still giving evidence. By consent, the court has agreed that commercially confidential information, found in a few documents, should not be read in open court or reflected in the judgment before consultation with the parties. The court must decide whether Ms Victoria Young, a reporter for Businessdesk, should have access to certain documents and information related to the case, including the counterclaim, opening and closing submissions, briefs of evidence, and the court file.

The court considers the law of access to court documents, including the Senior Courts Act 2016 and the Senior Courts (Access to Court Documents) Rules 2017. The court must balance the principle of open justice and the freedom to seek, receive, and impart information against the protection of commercial confidentiality and privacy interests. The court also takes into account the orderly and fair administration of justice and the protection of other confidentiality and privacy interests. The court heard submissions from counsel for both parties and decided that Ms Young is entitled to access to the pleadings, opening submissions, briefs of evidence, Notes of Evidence, and closing submissions. The court declines blanket access to the court file, but if Ms Young or other media wish to request any particular documents mentioned in a brief of evidence or submissions, they may do so.

The court grants Ms Young access to the pleadings, including the counterclaim, the parties' opening submissions, the briefs of evidence of the witnesses of fact, the Notes of Evidence once they are complete, and the closing submissions when delivered. The court requests counsel for both parties to redact commercially confidential information in the briefs of the witnesses of fact and in the opening and closing submissions. The court also declines blanket access to the court file but allows Ms Young or other media to request any particular documents mentioned in a brief of evidence or submissions.

Orders