Kidd v Van Heeren
[2016] NZHC 307
•29 February 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-725 [2016] NZHC 307
BETWEEN MICHAEL DAVID KIDD
Plaintiff (Responent)
AND
ALEXANDER PIETER VAN HEEREN Defendant (Applicant)
Hearing: 29 February 2016 Counsel:
S Mills QC and B O'Callahan for Plaintiff
B Latimour, A Wakeman and D Williams for DefendantJudgment:
29 February 2016
JUDGMENT (No 9) OF FOGARTY J
This judgment was delivered by me on 29 February 2016 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors: Carter Kirkland Morrison O’Callahan, Auckland
Fee Langstone, Auckland
KIDD v VAN HEEREN [2016] NZHC 307 [29 February 2016]
[1] This morning I held an urgent telephone conference to consider the provision of Mr van Heeren’s confidential fourth affidavit to Mr Bryan Cooper. This affidavit is discussed in Judgment (No 8) of 16 December 2015.
[2] Counsel for the defendant submits that the provision of the defendant’s fourth affidavit to Mr Cooper is contrary to the undertaking given by Mr O’Callahan, solicitor for the plaintiff, which has not been discharged by the orders made by this Court in the 16 December judgment, Judgment (8). In that judgment, I said in [64]- [66]:
[64] On 9 November last, the defendant made an application for orders restricting access to the Court file in respect of the fourth affidavit, which is the principal subject of this judgment. There has been no time to arrange for a hearing in respect of this application.
[65] I consider the fourth affidavit to fall within the ambit of the order made on 9 June restricting access to the Court file and use of affidavits filed by the defendant. To allay any doubt, I amend that interim order specifically in respect of the fourth affidavit in the same terms.
[66] It is a different question, however, whether this judgment should be redacted or released to the public in full in the usual way.
[3] In the judgment of 9 June, Judgment (2), I was considering an application that the Court file not be read (by the public) and that the second affidavit of the defendant detailing his personal assets and liabilities be confidential to the parties, their legal advisers and the Court. Paragraphs [19] and [20] read:
[19] For these reasons, the Court does make orders restricting access to the Court file, but in different terms than as moved. The Court orders are:
(a) The Court file not be read by any member of the public until further order of the Court. This restriction does not apply, of course, to any judgments of this Court, on these matters.
(b)“Member of the public” does not include the parties to the proceedings, their legal advisers, and their commercial advisers and investigators. Via the solicitors on the record, those persons can use the material in Court to conduct further investigations, check the veracity and accuracy of the content of the
material. Such checking can include showing that material to other persons, including other government agencies, in the course of pursuing enquiries.
[20] I regard (b) as spelling out what is commonplace in all civil proceedings; that affidavit evidence from one party is capable of being checked, critiqued and evidence solicited in response to answer it, from other persons. Nothing in this order is intended to constrain that normal adversarial process. For clarification, what it does not include is extraordinary use of Court material such as publishing in the media extracts from the affidavits and calling for persons to come forward to critique the same. Such an extraordinary step would require an order of the Court which would be made only after an interlocutory application in that regard was made.
[4] In Judgment (8), under the heading “Confidentiality”, I said:
[64] On 9 November last, the defendant made an application for orders restricting access to the Court file in respect of the fourth affidavit, which is the principal subject of this judgment. There has been no time to arrange for a hearing in respect of this application.
[65] I consider the fourth affidavit to fall within the ambit of the order made on 9 June restricting access to the Court file and use of affidavits filed by the defendant. To allay any doubt, I amend that interim order specifically in respect of the fourth affidavit in the same terms.
[5] Mr Mills QC submitted that it is clear that I intended that cross-reference in [65] to apply to [19] and [20] set out above so that the fourth affidavit could be read by Mr Cooper.
[6] That construction of the orders is challenged by Mr van Heeren, whose counsel argue that [65] of the 16 December 2015 judgment has to be read in the context of an undertaking from Mr O’Callahan, recorded by me on 16 November in a minute, that the contents of the defendant’s fourth affidavit would not be disclosed to Mr Cooper, pending an application for a more permanent order, Mr Cooper not have access to the Court file. The defendant argues that the proper understanding of [64] and [65] is to preserve the undertaking, pending full arguments from the parties as to the position of Mr Cooper, which is absorbed by the pending application for confidentiality and reduction of the 16 December 2015 judgment.
[7] Pending the hearing on 11 March and decision thereon, the defendant then sought an urgent order, being:
That the plaintiff and its solicitors cause their agent, Mr Bryan Cooper, to provide an undertaking to the Court that he will not further use or disseminate any of the contents of the defendant’s fourth affidavit.
[8] I heard argument as to the meaning of the term “further use or disseminate”. Taking a hypothetical argument that Mr Cooper had already made arrangements to meet with people following up on matters raised in the fourth affidavit, Mr Latimour confirmed that the terms of the order would prevent Mr Cooper having such meetings.
[9] I understood from Mr O’Callahan that Mr Kidd’s lawyers have been putting pressure on Mr Cooper to get on with following up various matters and there are questions as to whether Mr Cooper or Mr Kidd would talk to other persons. That this is difficult for Mr Kidd because he is still actively involved in the steel trade and regularly travelling.
[10] I have told counsel that I favour Mr Mills QC’s interpretation of my intent in [64] and [65] set out at [6] above. However, I will and do order that Mr Cooper provide an undertaking to the Court that he will not further use or disseminate any of the contents in the defendant’s fourth affidavit pending the hearing on 11 March next and any order arising therefrom. This is to enable me to have full argument on the inter-relationship between [64] and [65] of Judgment (8) and [19] and [20] of Judgment (2).
Timetable for hearing on 11 March 2016
[11] Counsel drew my attention to an outstanding stay application relating to the payment of costs. So there are two pending applications, one as to confidentiality and one as to costs.
[12] The confidentiality application was already set down for hearing on Friday,
11 March. If it can be heard on the same day, I will also hear the stay application
relating to costs, as that is the most efficient way to deal with that application. Counsel are confident that both applications can be heard comfortably in one day. Counsel will agree on the allocation of time of the two matters on that day, including allocation of time per counsel. I will endeavour to ensure that the hearing stays within that framework.
[13] The defendant’s submissions on confidentiality are to be filed by Friday,
4 March at 5.00 pm and the plaintiff’s submissions in reply by Wednesday, 9
March at 5.00 pm.
[14] In respect of the stay application relating to costs, the defendant has leave to file an affidavit bringing the New Zealand Court up-to-date on the question of taxation of costs in South Africa. This affidavit has to be filed at the latest by
8 March but with best endeavours by defence counsel to file sometime between 4 and 8 March.
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