First NZ Properties Limited v Millar

[2023] NZHC 1031

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2020-442-62

[2023] NZHC 1031

UNDER

the Companies Act 1993

IN THE MATTER OF

breaches of director’s duties and breaches of contract

BETWEEN

FIRST NZ PROPERTIES LIMITED

Plaintiff

AND

MICHAEL JOHN MILLAR

First Defendant

INVESTMENT SERVICES LIMITED
Second Defendant

PAUL JOHN MEPHAN

Third Defendant

CIV-2020-442-63

BETWEEN

SPRINGS ROAD PROPERTY LIMITED
Plaintiff

AND

MICHAEL JOHN MILLAR

First Defendant

INVESTMENT SERVICES LIMITED
Second Defendant

PAUL JOHN MEPHAN

Third Defendant

CIV-2020-442-64
BETWEEN	SUPERSTORE PROPERTIES LIMITED Plaintiff
AND	MICHAEL JOHN MILLAR

FIRST NZ PROPERTIES LIMITED v MILLAR [2023] NZHC 1031 [3 May 2023]

First Defendant

INVESTMENT SERVICES LIMITED
Second Defendant

Hearing:

1-5, 7-9 May 2023

Appearances:

B M Nathan and N Laing for the Plaintiffs

M J Radich for the First and Second Defendants
R Fowler for the Third Defendant in CIV-2020-442-62/63

Judgment:

3 May 2023

JUDGMENT OF GWYN J

(Media Application)

[1]                 First NZ Properties Ltd, Springs Road Property Ltd and Superstore Properties Ltd (property companies) are suing Michael Millar, Investment Services Ltd and Paul Mephan in respect of fees arising from the provision of property and investment management services to the property companies.

[2]                 The seven day trial of the matter started on 1 May 2023. The plaintiffs’ witnesses are still giving evidence.

[3]Ms Victoria Young from BusinessDesk has applied for access to copies of:

(a)The pleadings, including any counter-claim;

(b)The parties’ opening submissions;

(c)The briefs of evidence of the witnesses of fact;

(d)The notes of evidence, once they are complete; and

(e)The closing submissions, when delivered.

Law of access to Court documents

[4]                 The documents are sought pursuant to the Senior Courts (Access to Court Documents) Rules 2017 (Rules).

[5]                 Rules 8(1) and (4) of 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.

[6]                 Under r 12, the Court must consider the nature of, and the reasons for a request, for other information. Rule 12 requires that the Court also 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.

[7]                 Under r 13(b), during the substantive hearing, open justice has greater weight than at other stages of the proceeding, and greater weight in relation to documents relied on in the hearing, than other documents. 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

[8]As Palmer J noted in Electrix Ltd v Fletcher Construction Company Ltd:2

1      Greymouth Petroleum Holdings Ltd v Empresa Nacional Del Petroleo [2017] NZCA 490, [2017] NZAR 1617 at [22], [25].

2      Electrix Ltd v Fletcher Construction Company Ltd [2019] NZHC 2678 at [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… 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.3

Submissions

[9]                 In her application, Ms Young submits the case is of public interest as it concerns property funds with public investors.

[10]              All parties consent to the access being provided to Ms Young in terms of her application.

Decision

[11]              Ms Young is entitled to access the court index and the minutes in this proceeding so far.4 There are as yet no judgments prior to this one.

[12]              As I have noted above, the value of open justice has greater weight now, while the substantive hearing is underway, than at other stages of the proceeding.

[13]              The proceeding is open to the public but, as Palmer J noted in the Electrix case,5 the fact that the proceeding is open to the public does not mean that the Court can realistically expect personal attendance at the hearing to be the only, or even the primary, means of satisfying the principle of open justice. Ms Young is not in attendance at the hearing.

[14]              Counsel advise there is no commercially confidential information in the documents sought. I conclude that as much of the information requested should be made available to Ms Young as is consistent with the interests of fair and accurate reporting of the proceeding. With the exceptions noted below, I consider that includes the pleadings, opening submissions, briefs of evidence, notes of evidence, and closing submissions.

3      Eurekly Ltd v Crimson Consulting Ltd [2019] NZHC 792 at [5].

4      Rules 4 and 8(1).

5 At [11].

[15]The Registry should provide the pleadings to Ms Young.

[16]              The opening submissions for the plaintiffs have already been presented in Court. I invite counsel to provide the written version of their opening submissions to Ms Young. I also invite counsel for the defendants to provide Ms Young with their opening submissions, once delivered. I also invite the parties to provide their closing submissions to Ms Young once they have been delivered.

[17]              The briefs of evidence in this hearing were not taken as read but rather have been read out in open court. Access to the briefs of evidence, with any amendments made during the course of delivery of the evidence, should be made. The Notes of Evidence should also be provided at the end of the presentation of the parties’ evidence. I direct the Registry to make the Notes of Evidence available to Ms Young when they are complete.

Result

[18]Accordingly, I grant access by Ms Young to:

(a)the pleadings, including the counter-claim;

(b)the parties’ opening submissions, once delivered;

(c)the briefs of evidence of the witnesses of fact, after the evidence has been delivered;

(d)the Notes of Evidence, once they are complete; and

(e)the closing submissions, when delivered.

Gwyn J