Kidd v Van Heeren - [2015] NZHC 1270

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND- REGISTRY

CIV-2014-404-725 [2015] NZHC 1270

BETWEEN
MICHAEL DAVID KIDD

Plaintiff/Respondent

AND

ALEXANDER PIETER VAN HEEREN Defendant/Applicant

Hearing: 3 June 2015

Counsel:

B D Gray QC and A J Wakeman for Defendant as Applicant

S J Mills QC, B J O'Callahan and E J H Morrison for Plaintiff as Respondent

Judgment:

9 June 2015

JUDGMENT OF FOGARTY J

This judgment was delivered by me on 9 June 2015 at 11.00 a.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Kirkland Morrison O’Callahan Limited, Auckland
Jones Fee, Auckland

KIDD v VAN HEEREN [2015] NZHC 1270 [9 June 2015]

[1] On 14 April 2015, this Court declared that the defendant (the applicant in these proceedings), is issue estopped from denying: a partnership with the plaintiff, (the respondent in these proceedings); and, the accumulated worldwide assets of the partnership, as found by Satchwell J of the South Gauteng High Court of South Africa.1 A number of orders were made, the principal being:2

An account is to be taken between the plaintiff and the defendant to determine the amount due to the plaintiff arising out the plaintiff’s claim as a partner against the defendant.

[2] Subsidiary orders required the defendant to account to the plaintiff by filing in the High Court and serving on the plaintiff a list of all the assets of the partnership.

[3] The defendant has applied, by interlocutory application, for orders restricting access to the Court file. The application seeks these orders:

(a) The Court file not be read until further order of the Court, including in particular the second affidavit of Alexander Pieter van Heeren, sworn on 11 May 2015; and that

(b) The second affidavit of Alexander Pieter van Heeren, sworn 11 May

2015, detailing the defendant’s personal assets and liabilities be confidential to the parties to the proceedings, their legal advisors, and the Court, and to be used solely for the purposes of this proceeding.

[4] The application is made in reliance on rr 3.9(3), 3.12 and 3.16 of the High

Court Rules and the inherent jurisdiction of the Court.

[5] Proceeding on the presumption that where confidential information is contained in material filed in Court then, absent a hearing, the Court is reluctant to allow access to the Court file:3 I began the hearing on the initial view that the onus to
prevent an order for confidentiality lay on the plaintiff. So I heard Mr Mills QC first.

1 Kidd v van Heeren [2015] NZHC 517.
2 At [172].
3 Schenker AG v Commerce Commission [2013] NZCA 114, McGechan on Procedure (online looseleaf ed, Brookers) at [HR3.16.04].

[6] Rule 3.9(1) begins with these words, “this rule applies during the hearing of a proceeding (other than the hearing of an interlocutory application …)”. The commentary to the rule says: 4

This period is regarded as the “open justice” stage of the proceedings because the matter has been tried in public. During the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kidd v Van Heeren

Details

AGLC: Kidd v Van Heeren [2015] NZHC 1270
Case: [2015] NZHC 1270
Decision Date: 9 June 2015

CaseChat Overview and Summary

The High Court of New Zealand heard an application by Alexander Pieter van Heeren (the defendant/applicant) to restrict access to the court file in the proceedings brought by Michael David Kidd (the plaintiff/respondent). The dispute between the parties involved a partnership claim and the determination of assets accumulated worldwide. The primary legal issue was whether the court file could be accessed by the public during the period before a substantive hearing, specifically regarding the second affidavit of van Heeren, which detailed his personal assets and liabilities.

The court considered the arguments from both parties, with the plaintiff’s counsel asserting that the taking of account process was part of the substantive hearing and thus the court file should be accessible. Conversely, the defendant’s counsel argued that the process of taking an account was not a continuous hearing and thus access to the court file should be restricted until a substantive hearing occurred. The court found that the rules governing access to documents filed in court distinguished between access during the substantive hearing stage, which favours disclosure, and access in other cases, where access is restricted. The court further noted the importance of transparency in judicial proceedings but also the privilege associated with statements made in court and the need to protect sensitive information until it is tested in a hearing.

The court ultimately ruled that while the court file should not be read by the public until further order, it should remain accessible to the parties, their legal advisors, and commercial advisers to allow for proper investigation and cross-examination of the evidence presented. The court also clarified that the order would not prevent the normal adversarial process of checking and critiquing evidence. The defendant was partially successful in his application, as the orders allowed certain restricted access to the court file, but the timing for a substantive hearing was left to be determined by the parties and the court.

Orders