Intech Inc v Anura Limited (fka Orion Marine Limited)

[2023] NZHC 1718

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-002270

[2023] NZHC 1718

BETWEEN

INTECH INC

First Plaintiff

WAREHAM STEAMSHIP CORPORATION

Second Plaintiff

ACRA-CUT INC

Third Plaintiff

JOHN (JACK) WILLIAM BAKER

Fourth Plaintiff

AND

ANURA LIMITED

(formerly named ORION MARINE LIMITED) First Defendant

Continued overleaf…

On the papers

Counsel:

C L Elliott KC and R A Harrington for the Plaintiffs

G M Illingworth KC and H G Holmes for the First, Second, Third and Fourth Defendants

Judgment:

5 July 2023

JUDGMENT OF VAN BOHEMEN J

[on plaintiffs’ application for audio recording of interlocutory hearing]

This judgment was delivered by me on 5 July 2023 at 11:00 am pursuant to r 11.5 of the High Court Rules 2016.

Solicitors/Counsel:

C L Elliott KC, Auckland

G M Illingworth KC, Auckland Shieff Angland Lawyers, Auckland Keegan Alexander, Auckland

Registrar/Deputy Registrar

……………………………..

INTECH INC v ANURA LTD [2023] NZHC 1718 [5 July 2023]

YUN ZHANG

Second Defendant

DARREN PAUL LEYBOURNE

Third Defendant

VLADAN ZUBCIC

Fourth Defendant

STRYDA MARINE LIMITED

Fifth Defendant

[1]    By memorandum dated 12 June 2023, counsel for the plaintiffs apply for a copy of the audio recording of the hearing on 11 and 18 February 2022 of the plaintiffs’ application for interim injunctive orders and preservation and inspection orders which I dismissed in my judgment dated 25 March 2022.1

[2]    Counsel for the plaintiffs ask that the existing audio recording of the hearing be copied onto a USB (Universal Serial Bus) stick or other medium. In the alternative, counsel apply for the plaintiffs’ lawyers to be permitted to make a copy or transcript of the hearing under the supervision of the Registrar in accordance with r 9(1)(b) of the Senior Courts (Access to Court Documents) Rules 2017 (the Rules) upon payment of a fee.

[3]    The reason given for the application is that senior counsel did not appear at the first part of the hearing.

[4]    At my direction, counsel for the defendants were provided with a copy of the memorandum of counsel for the plaintiffs and their views sought. By memorandum, dated 21 June 2023, counsel for the defendants oppose the application on the basis that no proper ground had been advanced in support of the application. Counsel for the defendants submit that the application should be declined.

[5]No further memorandum was filed by counsel for the plaintiffs.

Senior Courts (Access to Court Documents) Rules 2017

[6]Under r 4 of the Rules:

(a)“court file” means a collection of documents in the custody and control of the court that relate to a civil proceeding or a criminal proceeding (including an interlocutory application associated with the proceeding) or an appeal;

(b)“document” includes recordings in electronic form.

1      Intech Inc v Anura Limited [2022] NZHC 574.

[7]    Under r 9(1)(b) of the Rules, the parties and the parties’ lawyers may, under the supervision of the Registrar or a person appointed by the Registrar, copy any part of the court file on paying the prescribed fee (if any).

[8]    However, r 9(5) provides that the rights of the parties under r 9(1) are subject to the qualification that a record of a court proceeding in electronic form that is in the custody and control of the court may be copied only with the permission of a Judge.

[9]    It follows from the above provisions that the audio recording of the hearing is a document that forms part of the court file and may be copied by the plaintiffs’ lawyers under the supervision of the Registrar, provided a Judge grants permission.

Analysis

[10]   There is limited guidance on the considerations that should be taken into account when a Judge’s permission is sought under r 9(5) of the Rules for a copy of the electronic record of a hearing.

[11]   Most decisions to date relate to requests for transcripts of the recording of     a court proceeding; see, for example, the Supreme Court’s decisions in Siemer v Heron and R v Nuku;2 the Court of Appeal’s decisions in Power v White and Tomar v Khatri;3 and  the  High  Court’s  decisions  in  Zhang  v  Westpac New Zealand Ltd, Prestige Motors Ltd v My Trustee Company (Nikolas and Petra) Ltd and Siemer v Legal Complaints Review Officer.4

[12]   In many of those decisions, the applications were declined because the reasons advanced were not considered sufficient to warrant a direction that a transcript be prepared and because of the time and cost considerations involved in preparing a transcript.

2      Siemer v Heron [2011] NZSC 116, [2012] 1 NZLR 293; R v Nuku [2018] NZSC 96.

3      Power v White [2022] NZCA 116; Tomar v Khatri [2022] NZCA 119.

4      Zhang v Westpac New Zealand Ltd [2019] NZHC 2797; Prestige Motors Ltd v My Trustee Company (Nikolas and Petra) Ltd [2022] NZHC 319; Siemer v Legal Complaints Review Officer [2022] NZHC 1575.

[13]   As the Supreme Court said in Siemer v Heron, in guidance referred to in many of the subsequent decisions:5

There are obvious resource implications if judges direct court registries to provide parties with transcripts of hearings of appeals and interlocutory matters generally on demand by litigants. For that reason, judges should always first satisfy themselves that there is good reason in the interests of justice for giving such directions.

[14]   Because counsel for the plaintiffs have proposed, in the alternative offered, that the plaintiffs’ lawyers would prepare the transcript under the supervision of the Registrar, the burden of preparing the transcript would fall principally on them rather than on the Registrar. Even so, there would be resource implications for the Registrar in supervising the preparation of the transcript of a hearing that took two days. More importantly, the reason offered for the request, which apparently relates to the interest or convenience of counsel, is insufficient. No explanation is provided of why such a transcript might be useful in circumstances where a substantial substantive judgment was issued and no appeal was brought against that decision.

[15]   The resource implications of copying an electronic recording of the hearing onto a USB stick are much less significant and would not impose a significant burden on the Court Registry. However, given that the Rules require a Judge’s permission before a copy is made, I am satisfied that there must be some principled basis, relating to the interests of justice, for such permission to be given.

[16]   I am not satisfied that any adequate reason has been provided to justify granting permission to the request. While senior counsel were not present at the first part of the hearing, the plaintiffs were represented throughout the hearing by a senior litigation partner at a respected Auckland law firm. In these circumstances, it is hard to see what relevant purpose would be secured by an electronic copy of the hearing.

[17]   Having regard to the factors identified in Siemer v Legal Complaints Review Officer:6

5      Siemer v Heron, above n 2, at [9].

6      Siemer v Legal Complaints Review Officer, above n 4, at [4].

(a)counsel for the plaintiffs have not suggested that the recording is likely to contain relevant information that will have an effect on the proceeding in the future (i.e. in the substantive hearing set down to commence on 30 September 2024);

(b)the delay in making the application is significant; well over a year has passed since the hearing and the issue of my judgment; and

(c)because a substantial substantive judgment was issued after the hearing and no appeal was brought against that judgment, there is no basis for concluding that any purpose relevant to the interests of justice would be served by directing that an electronic copy of the recording of the hearing be provided.

[18]   For all these reasons, the application by counsel for the plaintiffs for a copy of the audio recording of the hearing on 11 and 18 February 2022 is dismissed.

G J van Bohemen J