Financial Markets Authority v Hotchin

[2012] NZHC 2646

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-001771 [2012] NZHC 2646

BETWEEN  FINANCIAL MARKETS AUTHORITY Plaintiff

ANDMARK STEPHEN HOTCHIN First Defendant

ANDGREGORY JOHN MUIR Second Defendant

ANDTIPENE GERARD O'REGAN Third Defendant

ANDBRUCE PATRICK GORDON Fourth Defendant

ANDERIC JOHN WATSON Fifth Defendant

ANDDENNIS JOSEPH BROIT Sixth Defendant

Hearing:         On the papers

Judgment:      11 October 2012

JUDGMENT OF WINKELMANN J

This judgment was delivered by me on 11 October 2012 at 2.00 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

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FINANCIAL MARKETS AUTHORITY V HOTCHIN & ORS HC AK CIV-2012-404-001771 [11 October 2012]

[1]      Rainey Law have applied on behalf of their clients for access to the Financial Market Authorities (FMA) statement of claim in this proceeding.  They apply on the basis that they represent investors who may be eligible for compensation from the defendants, and who need to know whether they are required to join the substantive proceeding.

[2]      An earlier application for access to this statement of claim was declined by Associate Judge Doogue on the basis the defendants had yet to file their defences, and there was a risk of an unbalanced view of the dispute being circulated if access was granted.  Rainey Law subsequently applied to review that decision pursuant to s 26P of the Judicature Act 1908 and that application for review remains on foot.  By letter dated 6 August 2012 Rainey Law has renewed its application for court access to the statement of claim on the grounds that new circumstances have arisen.  This further application it says is tenable because the defendants in Hotchin have now filed their statement of defences, and one of them has gone to the media criticising the FMA and identifying specifying weaknesses in the claim filed.

[3]      The current application is made pursuant to Rule 3.13 of the High Court

Rules. That rule provides:

[4]      The current application is made pursuant to r 3.13 of the High Court Rules. That rule provides that:

3.13     Applications for permission to access documents, court file, or formal court record other than at hearing stage

(1)       This rule applies whenever the permission of the court is necessary under these rules and is sought to access a document, court file, or any part of the formal court record, except where access may be sought under rule 3.9.

(2)       An application under this rule is made informally to the Registrar by a letter that—

(a)       identifies the document, court file, or part of the formal court record that the applicant seeks to access; and

(b)       gives the reasons for the application.

(3)       The application is heard and determined by a Judge or, if a Judge directs the

Registrar to do so, by the Registrar.

(4)       On receipt of an application made in accordance with subclause (2), the Judge  or  Registrar  may  direct  that  the  person  file  an  interlocutory application or originating application.

(5)       The applicant must give notice of the application to any person who is, in the opinion of the Judge or Registrar, adversely affected by the application.

(6)       The  Judge  or  Registrar  may  dispense  with  the  giving  of  notice  under subclause (5) if it would be impracticable to require notice to be given.

(7)       The Judge or Registrar may deal with an application on the papers, at an oral hearing, or in any other manner the Judge or Registrar considers just.

[5]      Also relevant is r 3.16:

3.16     Matters to be taken into account

In determining an application under rule 3.13, or a request for permission under rule 3.9, or the determination of an objection under that rule, the Judge or Registrar must consider the nature of, and the reasons for, the application or request and take into account each of the following matters that is relevant to the application, request, or objection:

(a)       the orderly and fair administration of justice:

(b)       the protection of confidentiality, privacy interests (including those of children and other vulnerable members of the community), and any privilege held by, or available to, any person:

(c)       the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, court hearings and decisions:

(d)       the freedom to seek, receive, and impart information:

(e)       whether a document to which the application or request relates is subject to any restriction under rule 3.12:

(f)       any other matter that the Judge or Registrar thinks just.

[6]      The defendants have been notified of the fresh application and no opposition has been received.

[7]      Now that the defendants have filed their reply to the plaintiff’s claim, it is difficult to see what prejudice could accrue to the defendants from release of the pleadings.   The applicants have a legitimate interest in the subject matter of the proceeding, and rule 316(a)(c) & (d) weigh in favour of access being granted.  For this reason the application is granted.