Huhtamaki New Zealand Limited v Lovitt's NZ Limited (in receivership and in liquidation)

[2012] NZHC 770

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-5669 [2012] NZHC 770

BETWEEN  HUHTAMAKI NEW ZEALAND LIMITED

Plaintiff

ANDLOVITT'S NZ LIMITED (IN RECEIVERSHIP AND IN LIQUIDATION)

First Defendant

ANDDAVID STUART VANCE, RODNEY GANE PARDINGTON AND SIMON ALEXANDER WALLACE-SMITH Second Defendants

(On the papers)

Counsel:         GP Blanchard for plaintiff

SA Barker for second defendants

Judgment:      26 April 2012

JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application for access to court record]

Solicitors:           Speakman Law, PO Box 137 215, Auckland 1151

Buddle Findlay, PO Box 2694, Wellington

And To:             TE Futter, 554 Salvatierra Walk, #504, Stanford, CA 94305, U.S.A

HUHTAMAKI NEW ZEALAND LIMITED V LOVITT'S NZ LIMITED (IN RECEIVERSHIP AND IN LIQUIDATION) HC AK CIV-2010-404-5669 [26 April 2012]

[1]       Application is made by a non-party to this proceeding, namely Mr TE Futter, for permission to access and make copies of exhibits to the Wheeler and Vance affidavits contained on the proceeding file.

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

[3]      The Registrar sought advice of counsel for the parties on the position of their respective clients in respect of the application. Counsel for the plaintiff advised his clients consented to the application. Counsel for the second defendants advised that his client opposed.

[4]      By minute issued by me on 14 February 2012 I gave directions for the filing of memoranda. Included in those directions was a request that if a party wished to be heard orally on the matter advice to that effect should be given. Counsel for the second defendants has advised that they do not wish to be heard orally on the matter and they are content that the matter be determined on the papers.

[5]      Mr Futter outlined the reason for his request to take copies of the exhibits to the Wheeler and Vance affidavits. In summary those reasons are:

(a)       He was recently a member of the teaching faculty at the University of

Auckland Law School;

(b)       He believed that a decision of the Court of Appeal involving this proceeding touched on several important points of contract law;

(c)       He would like copies of the exhibits because they appeared to be documents by which the parties attempted to contract with each other.

[6]      In his latest memorandum, Mr Futter clarified the position as follows:

3.… the documents sought are only copies of those documents by which the second defendants sought to limit their liability when

trading on behalf of the first defendant, and by which the plaintiff responded, being: (1) the letter from the second defendants to the plaintiff on 14 November 2008, (2) the plaintiff's letter in reply on

24 November 2008, (3) the plaintiff's quotation and attached terms and conditions dated 5 December 2008, and (4) the second defendants' order dated 29 January 2009.

[7]      Mr Futter further clarified why he was seeking copies of the documents. He said in his memorandum that they:

are  sought  so  that  they  might  be  used  for  teaching  purposes,  and particularly, to allow students to consider in a real and practical way:

a.The principles of contract law governing: (1) the words or phrases required for parties to successfully limit their liability, and (2) the sequence of events required for one party's terms and conditions to prevail over those of another;

b.The basis upon which the High Court reached the conclusion in respect of issue (1) that limitation had been achieved as a matter of law (see paragraphs [66] - [67], yet the Court of Appeal determined that it had not (see paragraphs [18], and [22] - [23]); and

c.The basis upon which the High Court might come to determine issue (2) (refer the Court of Appeal judgment at paragraph [25]).

[8]      Mr  Futter  submitted  that  the  teaching  purposes  for  which  he  seeks  the documents cannot be properly or easily achieved without access to the documents concerned.

[9]      The second defendants' objection to the application are effectively twofold, namely:

(a)      Allowing evidence to be discussed academically could jeopardise the orderly and fair administration of the trial of this proceeding which is scheduled for October of this year; and

(b)The second defendants and the firm they are employed by do not wish their internal documents to be made public and scrutinised beyond the extent that they are referred to in the High Court and Court of Appeal judgments.

[10]     Mr Futter submitted that there is minimal, or no risk, that the trial could be

jeopardised because:

(a)       The likelihood of the materials being the subject of comment before the trial is not great;

(b)      The trial will be before a Judge alone with the result that it is unlikely that the court would be influenced by any academic discussion of the documents;

(c)       Any academic discussion on the documents will be as to the law, and that is unlikely to affect any witnesses' testimony.

[11]     Mr Futter referred to the second ground advanced in opposition, namely that the documents were internal documents and that the parties did not wish them to be made public and scrutinised beyond the extent to which they were in judgments. Mr Futter submitted that the documents appear to be pro forma letters purporting to limit the second defendants' liability as receivers and were probably sent to every one of the first defendants' creditors with whom the second defendants intended to continue trading. He submitted it is difficult to see how the documents can be referred to as "internal" given that they were made public, were not confidential, and were not private or subject to any privilege.

[12]     Rule 3.16 sets out the matters that must be taken into account in determining an application under r 3.13. Rule 3.16 provides:

3.16     Matters to be taken into account

...  the  Judge  ...  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.

[13]     In  BNZ Investments Ltd v Commissioner of Inland Revenue Wild J reviewed the authorities dealing with the predecessor to the current rule.[1]    It is not necessary that I set out in full the analysis that was undertaken. Suffice to say, his Honour concluded the examination with the following comments:[2]

[1] Bank Investments Ltd v Commissioner of Inland Revenue (2010) 24 NZTC 23,997.

[2] Ibid, at [12]-[15].

The current rules shifted the emphasis from the nature of a person's interest to the nature of the information requested, with almost a presumption of disclosure, unless the content of the information provides a good reason for non-disclosure. Further, the two-step test described by the Court of Appeal in McCully is now a single balancing test; there is no preliminary question of eligibility.

Commentary appears to support these propositions. While doubting that the approach laid down in Fourth Estate can be applied to the current rules, McGechan on Procedure at HR3 .16 ventures the view that:

... it seems likely that the Courts will follow a similar approach to that adopted in the past. The Court of Appeal decision in [McCully] will remain a valuable guideline on the balancing process. The emphasis has changed, however, in that the applicant is not required to show a particular interest in order for access to be granted,

I am not aware of any decisions under the new rules, at least not of any made by a Judge.

I consider the threshold for a non-party such as Maddocks to obtain access to Court documents is now considerably lower. That lowering has been achieved  in two  ways.  First, the  two-step test  has been replaced  by an overall balancing test. Secondly, the substance of the test has shifted. It now focuses on open justice and freedom of information, almost to the point of creating a presumption of disclosure.

[14]     When I consider the matters set forth in r 3.16, the conclusions reached by Wild J and the matters advanced by Mr Futter in response to the specific objections of the second defendant I conclude there is no reason why the documents sought should not be made available. Mr Futter has refined the initial request in his memorandum in reply and accordingly the order that I now make corresponds with

the request made in the reply memorandum.

Orders

[15]     The applicant's application is granted. The Registrar shall provide Mr Futter with copies of:

(a)      The letter from the second defendants to the plaintiff on 14 November

2008;

(b)      The plaintiffs' letter in reply on 24 November 2008;

(c)      The  plaintiffs'  quotation  and  attached  terms  and  conditions  dated

5 December 2008; and

(d)      The second defendants' order dated 29 January 2009.

JA Faire

Associate Judge