Fog v Frimley Estate Limited

[2015] NZHC 2729

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-1990 [2015] NZHC 2729

BETWEEN

MARIANNE FOG

Plaintiff

AND

FRIMLEY ESTATE LIMITED First Defendant

STEPHEN DUFF (also known as Nick
Duff)
Second Defendant

ALAN DUFF Third Defendant

Hearing:	On the papers
Counsel:	RB Hucker for plaintiff A Durrant for first and second defendants PJ Davey for party applying for inspection of file
Judgment:	5 November 2015

JUDGMENT OF FAIRE J

This judgment was delivered by me on 5 November 2015 at 1:00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Hucker & Associates, Auckland

Fee Langstone, Auckland

And To:             P Davey, Barrister, Auckland

Fog v Frimley Estate Limited [2015] NZHC 2729 [5 November 2015]

[1]      Mr Peter Davey,  counsel for G and RK Rinckes who are plaintiffs  in a proceeding against Frimley Estate Ltd – CIV-2015-404-2068, seeks access to the file CIV-2015-404-1990 Fog v Frimley Estate Ltd.

[2]      The application is made in reliance on r 3.13.

[3]      The plaintiff in CIV-2015-404-1990, Ms Fog, consents to the application.

[4]      Mr Davey’s client’s proceeding seeks orders for repayment of subscription moneys that were obtained without a registered prospectus being issued under the Securities Act 1978.  The defendants in that proceeding are Stephen Duff, Frimley Estate Ltd and Frimley Village Ltd.

[5]      The defendants in CIV-2015-404-1990 are Frimley Estate Ltd, Stephen Duff and Alan Duff.  The plaintiff, Ms Fog, seeks summary judgment and has obtained a fixture allocated for 10 am on 20 November 2015.  It appears that Alan Duff has not been served and will therefore not take part in that proceeding.

[6]      Mr Davey’s application is made in reliance on the following:

(a)      Frimley Estate Ltd had previously sought relief from the High Court in respect of its failure to issue prospectuses under the Securities Act. That application was refused by Asher J in judgment dated 13 May

2015.1   Ms Fog and the Rinckes are referred to in that judgment.  Both

parties had paid moneys to subscribe for shares in Frimley Estate Ltd and the Rinckes were also to be allocated shares in a related company, Frimley Village Ltd.   That judgment suggests that the issues in the current proceedings will be very similar, that is the proceedings issued by Ms Fog and the proceedings issued by the Rinckes;

(b)Ms Fog   has   made   application   for   summary   judgment.      That application is to be heard on 20 November 2015.  Pursuant to r 7.36, it

will be heard in open court;

1      Frimley Estate Ltd v Fog [2015] NZHC 1010.

(c)      Mr Davey wishes to inspect the file so that Mr and Mrs Rinckes can consider  the  possibility  of  seeking  leave  to  pursue  a  summary judgment application themselves and he submits the documents on the file will be relevant to that consideration.   He submits that in all probability the affidavits  themselves  and  the documents  would  be required to be discovered in his clients’ proceeding in any event.  He further  submits  that  if  an  application  for  summary  judgment  is refused,  there  is  a  likelihood  that  his  clients’ proceeding  and  the proceedings issued by Ms Fog would be consolidated under r 10.12; and

(d)No   material   has   been   advanced   suggesting   that   there   is   any commercially sensitive information on the file, nor that there is a need to specifically protect privacy interests, nor is there any particular privilege advanced.

[7]      The matters to be taken into account where an application is made under r 3.13 are set out in r 3.16 which provides:

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.

[8]      Mr Durrant,  acting for the first  and  second  defendants  in  CIV-2015-404-

1990, advanced the following:

(a)      Frimley Estate Ltd has applied to stay the relief proceedings pending determination of an appeal from the judgment of Asher J to which I have earlier made reference;

(b)The fact of the summary judgment application does not provide any automatic right of access to the court file.   He referred to the court indicating that there was a reluctance to give access to the court file at the interlocutory stage of the proceeding and referred to Ross v Wilson

McKay;2

(c)      The  documents  sought  would  be  discoverable  in  any  event,  and therefore Mr Davey’s clients should not be permitted to circumvent the ordinary discovery rules; and

(d)There is  no  presumption  one way or the other  when  it  comes  to determining the prioritisation of the factors to be considered in r 3.16.

[9]      Mr Durrant further submitted that if the court is not willing to refuse access on  the  papers  already  filed,  the  first  and  second  defendants  will  not  object  to Mr Davey’s  request  for  access  provided that  the court  imposes a condition  that Mr Davey and his clients are permitted to use the documents in the court file solely for the purposes of the proceeding CIV-2015-404-2068 and not for any other purpose and they are not permitted to disclose the documents to any other person.

[10]     In  his  reply memorandum,  Mr Davey relies  on  his  first  submissions and submits that the tag suggested by Mr Durrant, that Mr Davey and his clients “are not permitted to disclose the documents to any other person” is unnecessary.

[11]     In my view, when I review the matters set out in r 3.16, I can find no basis for refusing the application to inspect the file, subject to the condition that if copies of

2      Ross v Wilson McKay [2014] NZHC 2694.

the documents are taken, they are to be used solely for the purpose of the proceeding CIV-20105-404-2068.   There are common issues involved in the two sets of proceedings.  There are no confidentiality or privacy issues or privilege matters that have been placed before me to suggest that an order should not be made.   The similarities between the respective plaintiffs’ position strongly support the disclosure so that there can be an orderly and fair administration of justice.

[12]     Accordingly, I order that the Registrar permit Mr Davey to have access to the file CIV-2015-404-1990 and direct that he may take copies of the documents filed in that proceeding on the strict basis that they are only to be used for the purposes of the proceeding against Stephen Duff, Frimley Estate Ltd and Frimley Village Ltd in

CIV-2015-404-2068.

JA Faire J