Fuji Xerox New Zealand Limited v Whittaker
[2018] NZHC 78
•9 February 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-002073 [2018] NZHC 78
BETWEEN FUJI XEROX NEW ZEALAND LIMITED
First Plaintiff
FUJI XEROX FINANCE LIMITED
Second PlaintiffFUJI XEROX ASIA PACIFIC PTE LIMITED
Third Plaintiff
AND
NEIL WHITTAKER
First Defendant
MARK DONALD ALLRIGHT
Second DefendantGAVIN POLLARD
Third Defendant
Hearing: 5 February 2018 Appearances:
K C Francis for Plaintiffs
A M Callinan for First Defendant D P Hoskin for Second Defendant S M Hunter for Third Defendant
D Bridgman and V Young for National Business Review
Judgment:
9 February 2017
JUDGMENT OF JAGOSE J
This judgment is delivered by me on 9 February 2018 at 11.30 am pursuant to r 11.5 of the High Court Rules.
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Registrar / Deputy Registrar
FUJI XEROX NEW ZEALAND LTD & ORS v WHITTAKER & ORS [2018] NZHC 78 [9 February 2017]
Introduction
[1] There are two applications for decision. The National Business Review (“NBR”), a newspaper and online news platform, seeks access to the parties’ statements of claim and defence filed in the Court. The second defendant, Mr Allright, seeks an interim order suppressing from publication anything leading to his identification until either trial or further order of this Court.
[2] The NBR’s application is strongly opposed by Mr Allright. The other defendants do not oppose the NBR’s application but, in the event it was granted, seek minor redactions or non-publication orders in relation to particular personal information. The NBR in turn strongly opposes Mr Allright’s application, on which the other defendants took no position.
[3]The plaintiffs abide the Court’s decision on both applications.
The NBR’s application
—access to Court files
[4] Rule 11 of the Senior Courts (Access to Court Documents) Rules 2017 entitles anyone to seek access to documents relating to a proceeding by written request of the Court’s Registrar.
[5] Rule 12 specifies the matters required to be taken into account as relevant in considering such requests:
(a)the orderly and fair administration of justice:
(b)the right of a defendant in a criminal proceeding to a fair trial:
(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:
(g)whether a document to which the request relates is subject to any restriction under rule 7:
(h)any other matter that the Judge thinks appropriate.
Before the substantive hearing, the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require access to documents be limited;1 open justice has greater weight during the substantive hearing than at other stages of the proceeding.2
—analysis
[6] The NBR accepts its application was premature in advance of the defendants filing their defences. Now that has occurred, the NBR says it requires access to the file to provide “fair, balanced and timely” reporting of the proceeding.
[7] Although the NBR points to publicly-available reports detailing the plaintiffs’ complaints against the defendants, it is surmise those complaints are reflected in the statement of claim. The plaintiffs’ claim is significantly based in their corporate records, to which the defendants lack access, rendering their defences largely denials. Access to the Court file for the purposes of balanced reporting is likely to beg more questions than it answers. Reporting of only the defendants’ bare formal denials in the face of the plaintiffs’ detailed reports is not balanced or fair.
[8] However, in every civil proceeding, there comes a time – well before trial – when the pleadings are to be considered complete, and the Court’s leave is required further to amend claims or defences.3 Fixing a ‘close of pleadings’ date is required to be addressed in the parties’ memoranda for the first case management review.4
[9] In this case, the defences are anticipated to be the subject of substantial amendment after discovery and inspection of the plaintiffs’ documents. In those circumstances, the NBR’s application remains premature, at least until the pleadings
1 Senior Courts (Access to Court Documents) Rules 2017, r 13(a).
2 Rule 13(b).
3 High Court Rules 2016, r 7.7.
4 Rule 7.3(2)(d)(i).
are finalised. To the extent there is public interest in the plaintiffs’ conduct and allegations, I consider presently it is outweighed by the orderly and fair administration of justice while the parties’ pleadings are developed for trial.
The NBR’s representation
[10] The NBR was represented before me by its editor, Mr Bridgeman, and a reporter, Ms Young. I was not told whether either is legally qualified or admitted to the bar, although I understand Ms Young may be. I do not know whether either is in possession of a current practising certificate. Mr Bridgeman spoke to memoranda on each application earlier filed by Ms Young.
[11] It is a well-established rule no-one has the right to be represented in court by other than a practising lawyer.5 People may appear in their own right as party to a proceeding. They are unrepresented litigants, that is, not ‘represented’ at all. But other entities can only appear through representatives.
[12] The rule’s rationale is to ensure – so far as is possible, consistently with rights of access to justice – proceedings are appropriately pleaded and managed, including by counsel with primary obligations to the Court. The Court retains discretion nonetheless to allow other than practising lawyers to appear in exceptional circumstances.6 But those exceptional circumstances are generally to be regarded:7
… as a reserve or occasional expedient, for use primarily in emergency situations when counsel is not available or in straightforward matters where the assistance of counsel is not needed by the court or where it would be unduly technical or burdensome to insist on counsel.
[13] There can be no objection to the NBR making its written request for access to documents through its editor or reporters. Often, those requests will be determined on the papers. But it is another thing altogether to have the NBR’s editor and reporter sit in place of counsel on opposed applications. That is particularly the case when,
5 Re G J Mannix Ltd [1984] 1 NZLR 309 (CA).
6 Re G J Mannix Ltd [1984] 1 NZLR 309 (CA) at 311. See also Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [25]-[34]; Kai Iwi Tavern Ltd v New Zealand Guardian Trust Company Ltd [2013] NZCA 199 at [6]-[8]; and Dreamtech Designs & Productions Pty Ltd v Clownfish Entertainment Ltd [2015] NZCA 491 at [8]-[10].
7 Re G J Mannix Ltd [1984] 1 NZLR 309 (CA) at 314.
although acting as counsel, they have no obligations to the Court at all, and may well have conflicting obligations to the NBR itself. It is entirely arguable even the In-Court Media Coverage Guidelines are inapplicable to them in that role.
[14] Permitting the NBR to be represented on argument in Court by Mr Bridgeman and Ms Young is a significant indulgence to the NBR. The NBR should not expect it as a matter of course. Because Mr Bridgeman and Ms Young’s precise role was imprecise, I directed nothing in their notes of the hearing before me was to be published. I also noted, in being served with Mr Allright’s application and affidavits, they obtained information not ordinarily available to non-parties. This imposes a higher expectation of fair and accurate reporting of this proceeding on the NBR than if it had remained a non-party.
Mr Allright’s application
[15] I mean no disrespect by not engaging with the careful and comprehensive points raised by counsel, Mr Hoskin, in support of Mr Allright’s application for interim name suppression.
[16] The short point is particulars leading to Mr Allright’s identification are already and immediately in the public domain. The plaintiffs’ publicity, although anonymising the targets of their proceeding, explains they include the first plaintiff’s immediate former Chief Financial Officer. The NBR rendered evidence showing, as recently as 26 September 2017, the New Zealand Herald named “Mr (Mark) Allright” as “the former chief financial officer”, and in connection with a report of the plaintiffs’ allegations of financial irregularities. It is futile for the Court to suppress that which is already published.
[17] In making his application, Mr Allright set out specific adverse consequences he foresaw for his family. Mr Hoskin made oral application, irrespective of Mr Allright’s principal application’s fate, for suppression of those details. They rely on matters which are not in the public domain, and inherently are private and confidential to the family members. I agree. There is no relevant interest justifying their publication.
Costs
[18] I heard no submissions on costs. In principle, the unsuccessful party should make a contribution to the successful party’s legal expenses. Given the contest was essentially between Mr Allright and the NBR, neither of whom succeeded on their respective applications, and the other parties abided or did not oppose, my preliminary view is costs on the two applications should lie where they fall. If that is not accepted by any party, costs will be reserved for determination on short memoranda of no more than five pages – annexing a single-page table setting out any contended allowable steps, time allocation, and daily recovery rate – to be filed and served by:
(a)any party claiming costs within ten working days of the date of this judgment;
(b)any party opposing costs within five working days of service of the claimant’s memorandum; and
(c)the relevant claimant strictly in reply within five working days of service of the opponent’s memorandum.
Orders
[19]For the reasons set out above, I order:
(a)the NBR’s media application for access to court documents dated 6 November 2018 is dismissed. The NBR has leave to apply again for the same or a similar order in anticipation of the close of pleadings date, or in the event of any other material change of circumstances;
(b)Mr Allright’s interlocutory application for interim name suppression dated 17 October 2017 is dismissed;
(c)the contents of paragraphs 34 to 36 of Mr Allright’s affidavit sworn 17 October 2017, paragraphs 4 to 6 of Mr Allright’s affidavit sworn
19 January 2018, and paragraph 14 of Ms Young’s 26 January 2018 memorandum, are permanently suppressed from publication; and
(d)costs are reserved.
—Jagose J
Solicitors:
Meredith Connell, Auckland (Plaintiffs) Simpson Grierson, Auckland (First Defendant)
Steindle Williams Legal, Auckland (Second Defendant) S M Hunter, Barrister, Auckland (Third Defendant)
Copy to:
V Young, NBR
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