Fe Investments Limited v Keddell

[2018] NZHC 2516

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1039

[2018] NZHC 2516

BETWEEN

FE INVESTMENTS LIMITED

Applicant

AND

MARK GERALD KEDDELL

Respondent

Hearing:	On the papers
Appearances:	M Heard for the Applicant B J Burt for the Respondent
Judgment:	26 September 2018

JUDGMENT OF PALMER J

This judgment was delivered by me on 26 September 2018 at 10:00 a.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Counsel/Solicitors:

LeeSalmonLong, Auckland

Mr B J Burt, Barrister, Auckland McVeagh Fleming, Auckland

Copy to:

National Business Review

FE INVESTMENTS LTD v KEDDELL [2018] NZHC 2516 [26 September 2018]

Proceeding

[1]    In this proceeding, FE Investments Ltd claimed relief from Mr Mark Keddell for failure to pay amounts it says are owing to it. On 25 July 2017, Venning J granted an application for summary judgment, in opposition to which Mr Keddell had taken no steps. On 18 May 2018, Brewer J granted an application for an order requiring  Mr Keddell to appear, be examined and produce documents. The examination is scheduled to occur on 13 December 2018.

Application for access to the court file and responses

[2]    Ms Victoria Young of the National Business Review (NBR) applies for access to  the  documents  on  this  file.  Ms  Young  says  the  NBR  wants  to  report  on  FE Investments Ltd’s pursuit of Mr Keddell’s debt, the value of the judgment debt, and the steps FE Investments has taken. She submits the public deserves to know if there is a debt issue with Mr Keddell and it is in the public interest to report on the actions of FE Investments because it is a regulated finance company. She seeks more detail on the matter so she can report on it fully and responsibly.

[3]    If the application is granted, FE Investments Ltd requests it be on the condition any reporting follows Mr Keddell’s examination and requests disclosure be limited to the statement of claim and Venning J’s orders. But FE Investments Ltd opposes the application entirely because:

(a)there are privacy and confidentiality issues including regarding commercially sensitive material and information provided by third party trusts;

(b)publicity about the issues may inhibit progress with the proceeding by making Mr Keddell less cooperative;

(c)there is no public interest in the two loans by a finance company to a company of Mr Keddell’s which are the subject of the proceeding or in the amount of Mr Keddell’s debt.

[4]Mr Keddell opposes the request because:

(a)the application, to ascertain Mr Keddell’s financial wherewithal, concerns matters that are confidential and private to Mr Keddell;

(b)the only documents on the file are those filed by FE Investments Ltd, which will not enable fair and balanced reporting.

Law of access to court documents

[5]    Access to the formal court record of a proceeding and to documents on a court file are governed by the Senior Courts (Access to Court Documents) Rules 2017.

[6]    Rule 8(1) provides “[e]very person has the right to access the formal court record relating to a civil proceeding”. Under r 4, the formal court record includes a judgment, order or minute of the court, including a judge’s reasons. Under r 5, a judge may direct that judgments, orders, documents or files not be accessed without permission of the judge.

[7]    Under r 11 a person may ask to access any document. In deciding on that, under r 12, I must consider the nature of, and reasons for, the request and 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.

[8]Rule 13 provides:

13       Approach to balancing matters considered

In applying rule 12, the Judge must have regard to the following:

(a)before the substantive hearing, the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited:

(b)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:

(c)after the substantive hearing,—

(i)open justice has greater weight in relation to documents that have been relied on in a determination than other documents; but

(ii)the protection of confidentiality and privacy interests has greater weight than would be the case during the substantive hearing.

[9]    The starting point is the principle of open justice, which effectively creates a presumption of disclosure of information filed in court for the purpose of legal proceedings.1 But, where a request for access is made before the substantive hearing, the protection of confidentiality and privacy interests, and the orderly and fair administration of justice may require access to documents to be limited.2 Open justice has less weight prior to hearing when there is no guarantee the case will go to hearing at all.3

Decision

[10]   The substantive decision in this proceeding is in the past. FE Investments Ltd has obtained judgment in this proceeding, though the “minute/order” of Venning J,

1      Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2]; BNZ Investments v Commissioner of Inland Revenue (2009) 20 PRNZ 311 (HC); Commissioner of Police v Doyle [2017] NZHC 3049 at [15].

2      Berry v Crimson Consulting Ltd [2017] NZHC 3026 at [17]-[18].

3      Greymouth Petroleum Holdings Ltd v Empresa Nacional Del Petróleo [2017] NZCA 490 at [25].

granting judgment on 25 July 2017, does not appear to have been released publicly as a judgment. The NBR has access to Venning J’s decision of that date as of right and I do not restrict that. I also grant the NBR access to the Statement of Claim of 19 May 2017, relied upon by Venning J, in order to provide the context for the decision.

[11]   Examination of Mr Keddell is still pending. There may well be private and confidential matters arising in that. And there is force in Mr Keddell’s submission that the only documents on file are those filed by FE Investments Ltd. I do not grant access to the other documents on the file. The NBR’s request can be renewed at the time of the examination and considered in light of whatever restrictions are appropriate then, if any.

Palmer J