Grace v Orion New Zealand Limited
[2020] NZHC 1699
•15 July 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2017-409-000454
[2020] NZHC 1699
BETWEEN CECILE GRACE and OTHERS
Plaintiffs
AND
ORION NEW ZEALAND LIMITED
First Defendant
AND
LEISURE INVESTMENTS NZ LIMITED PARTNERSHIP
Second Defendant
Hearing: Determined on the papers Counsel:
C M Stevens and B R D Cuff for Plaintiffs
T C Weston QC and R J H Scott for First Defendant W J Hamilton and L A Merrick for Second Defendant
Judgment:
15 July 2020
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 15 July 2020 at 10.00 am pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
GRACE v ORION NEW ZEALAND LIMITED [2020] NZHC 1699 [15 July 2020]
The request
[1] This ruling concerns an application by Ian Duff under the Senior Courts (Access to Court Documents) Rules 2017 for access to the latest statement of claim filed by the plaintiffs and the corresponding statement of defence filed by the first defendant (Orion).
[2] The proceeding is concerned with a fire that started in Early Valley Road, Christchurch on 13 February 2017. The plaintiffs are residents/landowners or business owners who suffered loss as a result of the fire. Orion carries on business as an electrical lines company and is the owner/operator of power lines located on the boundary of Early Valley Road. It is alleged the fire was caused in the operation of Orion’s network. There is also a related claim against the second defendant. The case will be tried in early August 2020.
[3] By email dated 6 July 2020, Mr Duff, a resident at Early Valley Road, requested a copy of the statement of claim and Orion’s statement of defence. Mr Duff is not a party to the proceeding. His property was damaged in the fire and he may bring a separate proceeding against Orion. He does not seek information relating to the plaintiffs’ claim against the second defendant.
The parties’ positions
[4] The Registrar gave notice to the parties of Mr Duff’s request on 6 July 2020. Orion did not respond. The second defendant takes a neutral position. The plaintiffs also leave the matter to the Court’s discretion, but their Counsel made three submissions, namely:
(a)they were not aware of any instance where access to a statement of claim had been granted under the relevant Rules where the hearing had yet to take place and access was to assist the requester to bring a “distinct and unrelated claim”;
(b)if the Court was to grant access, the individual losses of the plaintiffs should be redacted for privacy reasons; and
(c)that a “marginally” amended statement of claim is to be filed.
Discussion
[5] Rule 8(1) of the Senior Courts (Access to Court Documents) Rules 2017 states “Every person has the right to access the formal court record relating to a civil proceeding”. The documents requested do not form part of the formal court record.
[6]Relevant for present purposes is r 11(2) which provides:
(2)A person may ask to access any document by providing the Registrar of the relevant court registry with a letter, an email, or any other 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).
[7]Rules 12 and 13 are also relevant and provide:
12Matters to be considered
In determining a request for access under rule 11, the Judge must consider the nature of, and the reasons given for, the request and take into account each of the following matters that is relevant to the request or any objection to the request:
(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.
13Approach to balancing matters considered
In applying rule 12, the Judge must have regard to the following:
(a)before the substantive hearing, the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited:
(b)during the substantive hearing, open justice has—
(i) greater weight than at other stages of the proceeding; and
(ii) greater weight in relation to documents relied on in the hearing than other documents:
(c)after the substantive hearing,—
(i) open justice has greater weight in relation to documents that have been relied on in a determination than other documents; but
(ii) the protection of confidentiality and privacy interests has greater weight than would be the case during the substantive hearing.
[8] Rule 12 lists the matters that must be considered when deciding requests of this type. There is no presumption in favour of disclosure.1 There is no hierarchy of the relevant factors to be considered under r 12.2 Open justice is not a paramount consideration. A balancing of the relevant considerations is required.
[9] As this application is made before the substantive hearing, r 13(a) applies and the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited. To be
1 Schenker AG v Commerce Commission [2013] NZCA 114, [2015] NZAR 1561 at [36].
2 Crimson Consulting Ltd v Berry [2018] NZCA 460, [2019] NZAR 30 at [16].
weighed against these considerations are the principles of open justice and the freedom to seek, receive and impart information.
[10] In Community of the Sacred Name Society or Trust Board v The Attorney- General, access to the file was requested by a non-party.3 As in this case, the non- party was considering bringing a similar claim on their own behalf. Nation J allowed the request subject to a condition that the documents were only to be used for the purposes of obtaining legal advice and not disclosed to any third party. He relevantly stated:4
While the principle of orderly and fair administration of justice is usually applied in relation to the proceedings at hand, I consider it can be applied more widely to include possible future proceedings. It is in the public interest that persons who might have a similar interest in the issues which are already before the Court in proceedings with which they are not currently involved should be informed of what precisely is at issue in those proceedings. Thus, if they choose, they can take advantage of what might emerge from hearings in those proceedings which will be open to the public and any judgment that might result from those proceedings. If parties with a proper interest in other proceedings can be better informed about what is happening in those other proceedings, they may be able to more efficiently deal with what they perceive to be similar issues. In that sense, allowing access to the sort of information in documents which CPT seeks here will encourage the orderly and fair administration of justice.
In this case, there are no significant confidentiality or privacy or commercial sensitivity concerns, and those that exist can be managed by CPT’s agreement not to disclose the information to any unrelated third party except for the sole purpose of seeking and/or obtaining legal advice. Granting CPT access to the pleadings with that restriction will not result in undue publication about PSE’s involvement in the proceedings, or the disclosure of commercially sensitive information to competitors. I do not accept that release of the documents requested will invariably result in the release of information that would derive from discovery.
[11] In GFD I LLP v Melview (Kawarau Falls Station) Investments Ltd (in receivership), Winkelmann J granted access to pleadings before trial to a law firm representing plaintiffs in an existing parallel proceeding related to the same property development.5
3 Community of the Sacred Name Society or Trust Board v The Attorney-General [2019] NZHC 1572.
4 At [28] and [29]
5 GFD I LLP v Melview (Kawarau Falls Station) Investments Ltd (in receivership) [2012] NZHC 677, (2012) 21 PRNZ 125.
[12] I consider Mr Duff’s request should be allowed. He has provided a justifiable reason for seeking access to the documents. He is considering making a similar claim involving Orion. He is very specific about what he requires and limited his request to just two documents. This proceeding is on the eve of trial and the pleadings are in all relevant respects finalised. The amendment to the statement of claim that has been foreshadowed will not alter the substance of the claim. A request for a copy of the pleadings by a reporter was previously allowed.6 Much of the detail of the claims may be discerned from an earlier decision of the Court which is publicly available.7 As noted in the Community of the Sacred Name Society or Trust Board case, granting such requests may encourage the orderly and fair administration of justice.8
[13] Mr Duff has not proposed any conditions on granting his request and there are privacy interests that arise. In particular, I consider that the individual amounts which are being claimed by the plaintiffs and particulars of their insurance policies need not be disclosed to Mr Duff to protect the privacy of the plaintiffs. These privacy concerns can be managed by making redactions to the documents. As Mr Duff does not have any legitimate interest in the claim against the second defendant the redactions should include those claims.
Result
[14] I order that Mr Duff may have access to the statement of claim dated 25 May 2020 and Orion’s statement of defence of 8 June 2020. Pursuant to r 11(7)(a)(ii) of the Rules such access shall be subject to the condition that the documents shall be redacted so as to remove:
(a)details of the sums claimed by the plaintiffs and their insurance details; and
(b)the claims against the second defendant.
6 Grace v Orion New Zealand Ltd [2018] NZHC 2591.
7 Grace v Orion New Zealand Ltd [2020] NZHC 701.
8 Community of the Sacred Name Society or Trust Board v The Attorney-General, above n 3 at [28].
[15]In this order “access” has the meaning in r 4 of the Rules.
O G Paulsen Associate Judge
Solicitors:
DLA Piper, Auckland Kennedys, Auckland
Chapman Tripp, Christchurch
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