Lewis v J P Morgan Chase Bank NA

[2017] NZHC 2292

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-244 [2017] NZHC 2292

BETWEEN

ROBERT WADE LEWIS

Plaintiff

AND

J P MORGAN CHASE BANK, N.A. Defendant

Hearing:	23 August 2017 (on papers)
Appearances:	Ms V Young for NBR R L Towner / S L Maxfield for defendant
Judgment:	21 September 2017

JUDGMENT OF J P DOOGUE [on Access to Court file]

LEWIS v J P MORGAN CHASE BANK, N.A. [2017] NZHC 2292 [21 September 2017]

[1]      The National Business Review (“NBR”), a non-party to this proceeding, has applied to access the court file in this proceeding. In its application (by letter dated 16

August 2017),1 it states:

… This publication has already reported on the dispute in various iterations of the claim including in the Employment Relations Authority, Employment Court, High Court and Court of Appeal.

However we need to see the pleadings in order to understand the dispute, which is yet to go to a full trial. In various iterations of the case the plaintiff Robert Lewis alleges that the JPMorgan’s actions are in breach of Reserve Bank rules – this is stated in publicly available decisions. As this is a serious regulatory issue, NBR would like to better understand this allegation and JPMorgan’s defence of it.

We would like access to the file to better understand and report on the case as it progresses to trial. NBR says the principle of open justice applies, and in any event, numerous decisions providing many details of the case are already public, NBR just wants to better understand the case.

[2]      In particular, the NBR seeks to access the pleadings.

[3]      The application which NBR has brought is to be decided under the High Court Rules.   Those rules are structured in such a way that different provision is made permitting access to the Court documents depending upon whether it is made at the point where the substantive hearing of the application is in progress or at a stage other than the hearing stage. A different approach is mandated depending upon the category into which the proceeding in question falls.  Generally, the rights of non-parties to access Court documents are very limited, except during the hearing process.2

[4]      Rule 3.16 of the High Court Rules sets out the applicable criteria to which the Court must pay heed when determining the application by NBR for access to the pleadings which have been filed in this case. The rule provides a list of non-exhaustive factors that must be taken into account.  A balancing exercise is required.

[5]      Rule 3.16 provides:

1      In accordance with r 3.13(2) of the High Court Rules.

2      Andrew  Beck  and  others  McGechan  on  Procedure  (online  looseleaf  ed,  Brookers)  at

[HR3.7.01].

Matters to be taken into account

In determining an application under rule 3.13, or a request for permission under rule 3.9, or the determination of an objection under that rule, the Judge or Registrar 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.

[6]      The defendant submits that the request for access should be declined. It relies specifically on r 3.16(a), the orderly and fair administration of justice, and r 3.16(b), the protection of confidentiality and privacy interests.

[7]      Counsel for the defendant, Mr R. Towner and Ms S. Maxfield, point out that there have been several decisions issued relating to this dispute which set out in detail the background to these proceedings. In particular, my recent judgment of 31 July

2017 (which concerned applications for particular discovery), comprehensively set out the background to the dispute.3   It submits that this is more than enough information to allow the NBR to understand the dispute and report on the case as it progresses to trial.

[8]      The NBR has apparently formed the view that the litigation involves the question of whether the defendant has breached the provisions of the Reserve Bank of New Zealand Act 1989.

[9]       It has been submitted for the defendant that the case does not involve any such issue.   Importantly, the defendant submits that there is also no allegation in the

pleadings that the defendant’s actions are in breach of any Reserve Bank rules. This case is solely concerned with the allegation that the defendant failed to confirm to Westpac, a prospective employer, that the plaintiff had been the CEO of its New Zealand branch. As a result, the plaintiff claims that there was a breach of the settlement agreement, as well as in negligence and injurious falsehood.

[10]     I agree with counsel for the defendant.  I expressly considered the question of what documents were relevant to the present dispute in the judgment I gave on 31 July

2017 relating to discovery in the proceeding.  The only references in that judgment to the Reserve Bank was in relation to a category of emails that the plaintiff contended were relevant documents that ought to have been discovered. I disagreed and found that there was no basis for concluding that any of the documents sought relating to the Reserve Bank were relevant to the proceedings.4

[11]     The first of the criteria in the order that they appear in the rule and which will be considered in this judgment is that contained in r 3.16(a), the requirement for orderly and fair administration of justice.

[12]     In my assessment, the orderly and fair administration of justice will not be achieved by speculation upon matters which are not part of the dispute which is before the Court.

[13]     It will be unavoidable that legitimate and justified applications for access to Court files may lead in some cases to comment on controversy which creates a distraction from the parties concentrating on the litigation to which they are parties. Depending on the case in question, it could be said that granting an application in those circumstances could prejudice the orderly and fair administration of justice. That may however be a price to be paid where the other criteria in r 3.16 indicate that an order should be made notwithstanding these deleterious consequences.   It is a matter of balancing an outcome of the type that that I have just described against other, positive, outcomes as identified in the other sub-rules that might flow from the making of an order for access.

[14]     The  next  relevant  criterion  is  the  protection  of  confidentiality,  privacy interests.5   This provision has particular application in cases where parties’ interests could be harmed by the wide dissemination of information as a result of the grant of an application for access to the Court file.  An example of such information might be know how or sensitive financial material which could place the party providing it at a disadvantage were it to be disclosed through publication in the media. Granting the application in the present case would not appear to impinge upon any special privacy requirements and the application of ground that would not therefore offend against the policy that the courts will protect confidential information which the parties have provided as part of the dispute.

[15]     Rule 3.16(c) requires the Court to take into account the principle of open justice

–

.. namely, encouraging fair and accurate reporting of, and comment on, court hearings and decisions.

[16]     It will be apparent that given the terms on which they have defined this requirement, the principle of open justice contemplated by the rule-makers has a particular meaning in this context.   Given that the stated objective of the NBR application is to obtain material about an issue which is not one of the relevant matters which the pleadings in this case require the Court to decide, the applicant will have difficulty establishing that granting the application will assist attainment of the objectives of r 3.16(c).  Because the litigation in this case will not involve “hearings and decisions” concerning an allegation that the defendant has breached the provisions of the Reserve Bank of New Zealand Act 1989, granting the application is not calculated to foster the objectives in this particular sub-rule.

[17]     Rule 3.16(d) requires the Court to consider whether granting the application would serve the policy of ensuring freedom to seek, receive and impart information. I accept that most orders directing access to the Court files would have the effect of increasing the level of information acquired by the applicant. Given that the applicant in this case is a media organisation which will further disseminate any information

obtained from the Court records, that outcome will plainly be enhanced if the application is to be granted.

[18]     As I have already noted, this application is brought under the first stage of the disclosure rules and not the second.6    For that reason, it does not constitute the last opportunity for the acquisition and dissemination of information about the dispute between the parties. There may well be other opportunities at the point where the trial is in progress.   That is a matter which needs to be considered when assessing the weight to be given to this particular factor, in my judgement.

[19]     I do not consider that the remaining criteria which are set out in r 3.16(e) and (f) have any relevance. There are no other matters that I consider should be taken into account.

[20]     Considering the criteria overall, my conclusion is that the application is not one which ought to be granted. It is of particular significance that the application is aimed at obtaining information which is not directly in issue in the Court proceedings.  The application does not have the objective of informing NBR or its readers about what is

at stake in the case.  For those reasons, I decline the application.

J.P. Doogue

Associate Judge

6      The second period is that covering the substantive hearing of the proceeding referred to in r

3.9.