Heart of the City Incorporated v Swney

[2015] NZHC 1250

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-003087 [2015] NZHC 1250

BETWEEN

HEART OF THE CITY

INCORPORATED Plaintiff

AND

ALEX GORDON SWNEY First Defendant

ALEX GORDON SWNEY and ANGELINE JANE MARSHALL as trustees of the COUNTRY STYLE TRUST

Second Defendants

ALEX GORDON SWNEY and ANGELINE JANE MARSHALL as trustees of the SWNEY-MARSHALL TRUST

Third Defendants

ANGELINE JANE MARSHALL Fourth Defendant

Hearing:	On the papers
Judgment:	5 June 2015

JUDGMENT OF ASHER J

This judgment was delivered by me on Friday, 5 June 2015 at 1pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Russell McVeagh, Auckland.

S Anderson, Auckland.

Grove Darlow & Partners, Auckland. E St John, Auckland.

HEART OF THE CITY INC v SWNEY [2015] NZHC 1250 [5 June 2015]

[1]      The National Business Review has sought access to documents from this court file, in particular the statement of claim and statements of defence.  They want access so that they can write about the case in a comprehensive fashion, and understand the context. They say:

This case follows Mr Swney’s guilty pleas to tax evasion in relation to his work for Heart of the City.   We say this is no ordinary private dispute, because it being taken by Heart of the City, which is funded through targeted rates.

The criminal case has been widely publicised and there can be no prejudice to his case because he has pleaded guilty.   While NBR understands that allegations made in the Statement of Claim may be untested, being able to report the Statement of Defence will balance this.

NBR’s position, noting that its readers as business people have been paying these targeted rates, is that the public have a right to know the allegations against this man and how he is defending them.  Ratepayers have a right to know how their money is spent.

[2]      Their application is opposed by the first and third defendants.  The second and fourth defendants and plaintiff abide the decision of the Court.   The plaintiff notes that the request for the pleadings may be premature, as not all the statements of defence are as yet filed.

[3]      Access to the documents on this file has been previously sought by another third party, the Commissioner of Inland Revenue.  That application covered a wider range of papers than the present, but included a request to access the statement of claim.  Duffy J declined the application.1

[4]      I take into account the matters set out in r 3.16 of the High Court Rules.  The principle of open justice has less relevance during the interlocutory stage of a proceeding, when it is not clear that the material filed in the court will ultimately be used in court.2    Moreover publicity of the detail of court proceedings at an early stage may aggravate disputes and make settlement more difficult for the parties,

which is against the public interest.

1      Heart of the City Incorporated v Swney HC Auckland CIV-2014-404-003087, 11 March 2015.

2      ASB Bank Ltd v Commissioner of Inland Revenue [2014] NZHC 2391 at [4].

[5]      However, the principle of open justice, in particular the importance of the public being aware of the business of our courts, favours the disclosure of the names of parties and the basic pleadings in civil proceedings.  The purpose of pleadings is to  set  out  the  key  facts  and  elements  relied  on  by  each  side.3     Access  to  the statements of claim and defence will enable the public to understand the issues that are being litigated.  Access will, however, always turn on the nature of the particular

pleading.  A pleading which sets out only the broad matters of fact and allegations relied on is less likely to give rise to any unfairness or misinterpretation than a statement of claim that contains detailed allegations of contested facts.  In Commerce Commission v Air New Zealand access was not given to the statement of claim because of the detail and the presence of confidential or sensitive material.4

[6]      Fairness  would  also  dictate  that  if  access  is  given  to  the  pleadings,  the statements of claim and defence should all be available so that whoever is reading them or reporting on them can obtain a fair and balanced picture of the issues. Otherwise there will be access to just one side of the story.  Until the pleadings of both sides are filed, the application may be premature.

[7]      In relation to this application there appears to be no good reason why there should not be access to the pleadings.  The plaintiff does not assert that the statement of claim contains confidential or sensitive material and abides the decision of the Court, as do the second and fourth defendants.  However, balance requires that this access should be provided only when all the pleadings have been filed.  There are still statements of defence to be filed by the second and third defendants by 15 June

2015.

[8]      For the reasons set out by Duffy J, I would not be minded to order access to the other detailed documents that were filed in support of interlocutory orders at this point, and indeed this is not sought.  However, I am prepared to direct that there be access to the statements of claim and defence from 16 June 2015.  I reserve leave to

the parties to apply for further directions.

3      Commerce Commission v Air New Zealand Ltd [2012] NZHC 271 considered by the Court of

Appeal in Schenker AG v Commerce Commission [2013] NZCA 114.

4 At [51].

Result

[9]      I direct that  access be  provided to the National Business Review  of the amended statement of claim and the statements of defence after 15 June 2015.

[10]     I reserve leave to any party to apply to seek further directions.

……………………………..

Asher J