Electrix Ltd v Fletcher Construction Co Ltd
[2019] NZHC 2678
•18 October 2019
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 that, 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. As the Court of Appeal has stated, “[w]hen 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.”1
[5] The freedom to seek, receive and impart information, a mandatory relevant consideration under r 12(f), is also guaranteed by s 14 of the New Zealand Bill of Rights Act 1990. Freedom of expression is subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society, under s 5. Because, under s 3, the Bill of Rights governs judicial decision-making, the guarantee means freedom of expression is not only a mandatory relevant consideration but a requirement with which the judge’s decision must be consistent.2
[6] In Crimson Consulting Ltd v Berry, the Court of Appeal considered, while there is no presumption of disclosure, “the principle of open justice is fundamental to
1 Greymouth Petroleum Holdings Ltd v Empresa Nacional Del Petróleo [2017] NZCA 490, [2017] NZAR 1617 at [22], [25].
2 Eurekly Ltd v Crimson Consulting Ltd [2019] NZHC 972 at [5].
the common law system of civil and criminal justice”.3 As the Court quoted, the Supreme Court in Erceg v Erceg explained:4
The principle’s underlying rationale is that transparency of court proceedings maintains public confidence in the administration of justice by guarding against arbitrariness or partiality, and suspicion of arbitrariness or partiality, on the part of courts. … The principle means not only that judicial proceedings should be held in open court, accessible by the public, but also that media representatives should be free to provide fair and accurate reports of what occurs in court. Given the reality that few members of the public will be able to attend particular hearings, the media carry an important responsibility in this respect. …
Submissions
[7] Ms Young did not seek to be heard. In her application she submits access would allow a timely and accurate account of the proceeding which is of public interest because it involved a government contract between the Ministry of Justice and a NZX- listed entity, Fletcher Building Ltd (of which Fletcher Construction is a subsidiary). She submits the nature and treatment of construction contracts has become more of a public issue following the collapse of several major companies and Fletcher losing $1 billion in 18 months in its buildings and interior division. She submits the Precinct project was one of the key loss-making projects in this division and there will be interest from the construction industry and wider public about the dispute.
[8] I heard counsel’s responses to the application during the trial. Electrix does not oppose access. Mr Quinn notes there is a right to access the formal court record and does not object at all to access to the latest version of the pleadings. But he has hesitation about the idea of a reporter being given the briefs of evidence and the Notes of Evidence, given that their release goes beyond what has been released in other proceedings, the Notes can be inaccurate and witnesses may need to be recalled and further submissions presented. He questions whether witnesses may draft briefs with disclosure in mind.
[9] Mr Fulton, for Fletcher Construction, suggests that Ms Young’s initial reporting of the opening of the trial was inaccurate and that tells against the theoretical
3 Crimson Consulting Ltd v Berry [2018] NZCA 460, [2019] NZAR 30 at [33].
4 At [33], citing Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2] (footnotes omitted).
possibility that disclosure of documents may increase the accuracy of reporting. He submits this is just a general contract dispute with a low level of public interest. Fletcher Construction maintains objection to a particular paragraph in one of the witness’s briefs which is commercially confidential. He submits the request potentially encompasses the electronic file of 5,000 documents, including at least three commercial reports that would not have been disclosed, in unredacted form, if there had been sufficient time to redact them. The 5,000 documents only become evidence if they are referred to by counsel or a witness and some are subject to objections that I will rule on in the course of formulating the judgment. Accordingly, Mr Fulton submits their release would not be in the interests of the fair administration of justice. He submits it would be easier to limit the media’s access to the court file to the opening and closing submissions and witness briefs and confidentiality can be dealt with by redactions. He submits there is a lot of confidential material in the experts’ briefs.
Decision on access
[10] As counsel acknowledge, Ms Young is entitled to access the minutes in this proceeding so far. (There are no judgments until now). I view the rest of her request in the context of the substantive hearing currently being held. So the value of open justice has greater weight than at other stages of the proceeding. The workings of the court, in hearing the dispute, should be open to full scrutiny. I also accept there is a public interest in availability of information about this proceeding. It concerns a significant commercial arrangement involving at least one company that is not infrequently the subject of reporting. The context is a government project involving significant public expenditure which I am told by a witness is the largest multi-agency government co-location project in New Zealand and the first major building to be opened in Christchurch following the earthquakes.
[11] The proceeding is open to the public, as are most court proceedings. But that does not mean the public, or even the media, attends. In these days of 24/7 news by internet, the courts cannot realistically expect personal attendance at court to be the only, or even the primary, means of satisfying the principle of open justice. The transparency of court proceedings, that is necessary to maintain confidence in the administration of justice, demands more. Open justice today means providing access
to information unless there are good reasons not to do so. That is especially so, as r 13(b) says, when information is requested during a substantive hearing.
[12] Accordingly, I consider as much of the information requested should be made available to Ms Young, a media representative, as is consistent with the interests of fair and accurate reporting of the proceeding and taking account of commercial confidentiality. With the exceptions explained below, I consider that includes the pleadings, opening submissions, briefs of evidence, Notes of Evidence and closing submissions.
[13] The pleadings, including for the counterclaim, are the basis of each party’s case. As the Court of Appeal stated in Crimson Consulting Ltd v Berry, “[r]eporting on a statement of claim and a statement of defence, providing it is fairly done, is one way of informing the public so that the business of the courts is known and transparent”.5 Counsel advise there is no commercially confidential information in the pleadings. The Registry should provide the pleadings to Ms Young.
[14] The opening submissions have already been presented in court at the start of trial, for which Ms Young was present. I consider access to the written versions will enhance the prospect of accurate reporting. Rather than the Registry doing it, I invite counsel to provide the written versions of their opening submissions to Ms Young. That is on the basis that the information in Electrix’s opening submissions, which Fletcher Construction considers is commercially confidential (which I understand to be in paragraphs [10], [12] and [84]), is redacted. I invite the parties also to provide their closing submissions to Ms Young, once they have been delivered, for the same reason.
[15] The briefs of evidence are the initial, prepared, statements by witnesses of their evidence-in-chief. I have read some of them in advance and they were taken as read in this trial (rather than read out in open court). I consider it is appropriate for Ms Young, as a media representative, to have access to the briefs of evidence here. She would have been able to hear the information in them had she attended court when they were read in court, for those that were. For those that were not, receiving the
5 Crimson Consulting Ltd v Berry, above n 3, at [41].
written brief is the only way of making them transparent. I consider access to the written briefs is likely to enhance the prospect of more accurate reporting.
[16] But evidence of a witness in a brief of evidence is supplemented and sometimes altered or retracted by further evidence-in-chief and under cross-examination and re- examination. That is reflected in the Notes of Evidence, which will not be complete until the end of the presentation of the parties’ evidence. Ms Young needs to be aware of the limitations of relying only on briefs of evidence. In order to be fair and balanced, her reporting will need to make that very clear. Ideally, she should take into account cross-examination and re-examination as reflected in the Notes of Evidence on a particular issue, rather than relying only on briefs of evidence. That would enable a more accurate understanding of the evidence given at trial. I direct the Registry to make the Notes of Evidence available to Ms Young when they are complete. Counsel will need to indicate to the Registrar any information in them they consider is commercially confidential.
[17] Commercial confidentiality is a legitimate constraint on access to the documents requested here. For that reason, I do not release the expert witness briefs, which focus on cost and pricing information. I also invite counsel for both parties to redact the information that either considers is commercially confidential in the briefs of the witnesses of fact before they are made available to Ms Young. That should be done within three working days of the date of this judgment.
[18] Finally, Mr Fulton makes a good point about the 5,000 documents in the electronic bundle. They are not all evidence yet and may not become evidence if not referred to by counsel (other than in closing) or by a witness, or objected to and ruled inadmissible.6 Rule 13(b)(ii) recognises the principle of open justice has less weight in relation to the documents that are not relied upon. I decline blanket access to the documents. If Ms Young, or other media, wish to request any particular documents mentioned in a brief of evidence or submissions, they may do so. I would expect a document would be made available unless counsel advise there is good reason, such as commercial confidentiality, not to do so.
6 High Court Rules 2016, r 9.5(4).
Result
[19]Accordingly, I grant access by Ms Young to:
(a)the pleadings, including the counterclaim;
(b)the parties’ opening submissions, except for redactions in Electrix’s submissions for commercial confidentiality as outlined above;
(c)the briefs of evidence of the witnesses of fact, subject to any redactions as outlined above;
(d)the Notes of Evidence, once they are complete; and
(e)the closing submissions, when delivered.
Palmer J
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