Grace v Orion New Zealand Limited
[2022] NZHC 616
•30 March 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2017-409-000454
[2022] NZHC 616
BETWEEN CECILE GRACE and ORS
Plaintiffs
AND
ORION NEW ZEALAND LIMITED
First Defendant
AND
LEISURE INVESTMENTS NZ LIMITED PARTNERSHIP
Second Defendant
Hearing: On the papers Appearances:
C Henley for the Plaintiffs
M Dennett for the First Defendant
W Hamilton for the Second Defendant
Judgment:
30 March 2022
JUDGMENT OF DOOGUE J
This judgment was delivered by me on 30 March at 2.15 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
GRACE v ORION NEW ZEALAND LIMITED [2022] NZHC 616 [30 March 2022]
Introduction
[1] The law firm Fee Langstone seeks access to court documents in relation to the present proceeding, which has been decided in part by Gendall J on 12 April 2021 and resolved in part by settlement between the plaintiffs and the first defendant.1 The decision is the subject of an appeal to the Court of Appeal.
[2]The documents are:
… the most recent pleadings filed by the plaintiff and the first and second defendants, specifically:
(a)the sixth amended statement of claim filed by the plaintiffs against the first and second defendants;
(b)the final statement of claim filed by the plaintiffs against the first defendant and the second defendant (if the sixth statement of claim is not the final statement of claim);
(c)the final statement of defence filed by the first defendant (Orion); and
(d)the final statement of defence filed by the second defendant (Leisure Investments NZ).
Access to court documents
[3] Access to court documents is regulated by the Senior Courts (Access to Court Documents) Rules 2017. Persons may obtain access to court documents either by right, or with the court’s permission, but in either case (as may be relevant here) subject to any limit or prohibition imposed by the court.2
[4] Rule 8(1) gives “every person … the right to access the formal court record relating to a civil proceeding”. Rule 4 defines “civil proceeding” as meaning “any proceeding other than a criminal proceeding; and … does not include an interlocutory application”. “Formal court record” is defined as relevantly meaning “any of the following kept in a registry of the court … (a) a register or an index …”.
1 Grace v Orion New Zealand Ltd [2021] NZHC 705.
2 Senior Courts (Access to Court Documents) Rules 2017, rr 5 and 6.
[5] If Fee Langstone has no relevant general right to access documents, r 11 otherwise applies to its request. Under r 11(2), the person seeking access to any document must provide “[a] written form of request that”:
(a)identifies the person and gives the person’s address; and
(b)sets out sufficient particulars of the document to enable the Registrar to identify it; and
(c)gives reasons for asking to access the document, which must set out the purpose for which the access is sought; and
(d)sets out any conditions of the right of access that the person proposes as conditions that he or she would be prepared to meet were a Judge to impose those conditions (for example, conditions that prevent or restrict the person from disclosing the document or contents of the document, or conditions that enable the person to view but not copy the document).
[6] Subject to a Judge’s dispensation with the requirement, r 11 also requires the Registrar to copy requests for access to documents not covered by general rights to the parties to the relevant proceeding, to enable their timely objection.
Fee Langstone’s request
[7]Fee Langstone seeks access, giving the following explanation:
We act for a party which wishes to bring similar claims against the same defendants, arising from the same events. Access to these pleadings will inform our client of matters relevant to the claims it wishes to pursue and assist in the formulation of its claims.
[8] The Registrar copied Fee Langstone’s request to the parties. The plaintiffs have indicated they will abide the decision of the Court.
[9]The first and second defendants object to the request.
[10] The first defendant submits that the application does not comply with the requirements of r 11(2) because the application does not set out:
(a)the name of Fee Langstone’s client and the client’s address (r 11(2)(a));
(b)the reasons, including purpose for asking to access the document (r 11(2)(c), which needs to be articulated in such a way as to allow the Court to weigh the nature of and reasons for the request against the mandatory countervailing factors as set out in r 12; and
(c)any proposed conditions of the right of access (r 11(2)(d)).
[11] The second defendant also opposes the application on the basis that it does not comply with r 11(2) for precisely the same reasons as given by the first defendant. The second defendant also relies on r 12(a) (the orderly and fair administration of justice), noting that the decision of Gendall J is under appeal and is scheduled to be heard in late May.
Discussion
[12] It appears Fee Langstone’s only reason for seeking access is on its client’s behalf so r 11(2)(a) requires identification of Fee Langstone’s client and the client’s address.
[13] Further, Fee Langstone’s explanation does not set out precisely enough the purpose for which the access is sought as required by r 11(2)(c). This should be articulated in a way that allows me to weigh “the nature of, and reasons given for, the request” in terms of the relevant factors set out in r 12 and against the mandatory countervailing factors of “the protection of confidentiality and privacy interests and the orderly and fair administration of justice” in r 13. I cannot make that assessment from the current explanation where the allegations are unspecified and the client is anonymous.
[14] Fee Langstone’s request sets out no proposed conditions for the right of access by which objections could be met. Given r 11(2)(d) requires an access seeker to set out any conditions it would “be prepared to meet were a Judge to impose those conditions”, a reasonable inference may be that Fee Langstone has no conditions to propose because it has not turned its mind to such matters or is not prepared to meet any such conditions.
[15] Given the request does not meet the minimum for consideration, I am not presently prepared to grant access to the documents sought.
[16] Furthermore, and equally importantly, the Court must consider the reasons for the request against a list of other matters, including the orderly and fair administration of justice and any other matter the Judge considers appropriate.
[17] In this proceeding the plaintiffs and the first defendant settled all claims between them without any admission of liability by the first defendant.
[18] The documents sought in the application are the final pleadings to have been filed by the parties. The most recent document filed was the sixth amended statement of claim. At the time of discontinuance, the first defendant had not yet filed a statement of defence to the sixth amended statement of claim. Accordingly, the pleadings sought in the application do not represent a complete picture of the litigation.
[19] Granting the request for access appears also to risk misrepresenting the merits of the parties’ respective cases, given the lack of a statement of defence referred to in [18].
Conclusion
[20] Under r 11(8), I first refuse Fee Langstone’s request for access under r 11 to the pleadings cited in [2] because the request does not comply with r 11(2)(a), (c) and (d). Second, given the matter was settled as between the plaintiffs and the first defendant, there is a risk of misrepresentation of the merits of the parties’ respective cases. Third, the decision is under appeal. Thus I conclude granting the application would offend against the orderly and fair administration of justice under r 12(a).
Result
[21]The application for access to court documents is declined.
Doogue J
Solicitors:
Fee Langstone, Auckland Wotton Kearney, Auckland Kennedys, Auckland
Chapman Tripp, Christchurch
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