Mason Corporation Ltd v Attorney-General (access to documents)
[2025] NZHC 2693
•16 September 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-800
[2025] NZHC 2693
UNDER the Senior Courts (Access to Documents) Rules 2017 IN THE MATTER
of an application for access to the Court file in Mason Corporation Ltd v Attorney- General (CIV-2024-485-800)
Teleconference: 1 September 2025 Appearances:
T Goatley and K Wilson for Applicant
J Edwards and R Hurliman for Mason Corporation Ltd C D Fuller for Attorney-General
Judgment:
16 September 2025
JUDGMENT OF McHERRON J
(Access to Documents)
Introduction
[1] Mason Corporation Ltd carries on business as a vaping product importer, distributor and retailer, trading as Shosha Vape and Hookah (Shosha). In 2023, the regulatory landscape for vape devices changed, and both single-use and reusable vaping devices were required to have removable batteries under the Smokefree Environments and Regulated Products Amendment Regulations 2023.1
[2] On 1 October 2024, this change came into effect for reusable vaping devices. Shosha filed judicial review proceedings challenging the new regulations under
1 Through the insertion of cl 19A(b) to sch 5 of the Smokefree Environments and Regulated Products Regulations 2021.
MASON CORPORATION LIMITED v ATTORNEY-GENERAL (Access to Documents) [2025] NZHC 2693
[16 September 2025]
urgency on 28 November 2024.2 Shosha says the urgency, and the nature of the proceeding itself, led to confidential information being provided to the Court. Shosha anticipated seeking confidentiality orders, opposing an application for access to information, and requesting redaction of commercially sensitive information in any judgment.
[3] Some time before November 2024, legal advice to the Ministry of Health was leaked. Shosha referred to the leaked advice in its statement of claim and in various affidavits filed with the Court. The advice remains subject to legal professional privilege, which has not been waived.3
[4] On 24 July 2025, the Associate Health Minister announced the Regulations would be revoked from 1 September 2025.4 The Smokefree Environments and Regulated Products (Product Safety Requirements for Vaping Products) Amendment Regulations 2025 were gazetted on the same day. This action was in direct response to Shosha’s challenge. In her media release, the Minister stated “Cabinet was advised that taking this step was the best way to resolve the case”. The parties filed a notice of discontinuance in this proceeding on 5 September 2025.
The application for access
[5] The British American Tobacco Group (BATNZ) is a competitor to Shosha in the vaping market. It is materially affected by changes to the regulation of vaping devices. In an application dated 1 August 2025 under the Senior Courts (Access to Court Documents) Rules 2017 (Rules), BATNZ requested the formal court record, and all documents filed in the proceeding, identifying in particular:
(a)the notice of proceeding;
(b)the statement of claim;
(c)the statement of defence (if any);
2 Affidavit of Nabhik Gupta, 6 August 2025 at [10].
3 Evidence Act 2006, s 65(4).
4 Hon Casey Costello “Removable battery regulations revoked” (press release, 24 July 2025).
(d)any application filed in the proceeding;
(e)any notice of opposition filed in the proceeding;
(f)any submissions filed in support of, or in opposition to, any application in the proceeding; and
(g)any affidavits filed in support of, or in opposition to, any application in the proceeding.
[6] BATNZ’s application came before me for consideration as Duty Judge. Access requests may be dealt with in any manner the Judge considers just, including on the papers or at an oral hearing.5 Shosha asked to be heard and so I convened a teleconference on 1 September 2025.
[7] Parallel to this, Official Information Act 1982 (OIA) requests have been lodged with the Ministry of Health and Crown Law. I understand that the response from Crown Law has not yet been fulfilled. The Ministry of Health’s response was to be provided on 8 September 2025.
BATNZ’s argument on access
[8]BATNZ considers:
The recently announced decision by the Government regarding its resolution of the proceeding has had and will continue to have major implications for BATNZ’s business activities. BATNZ believes that having access to the requested documents will give it insight into an important policy decision by the current Government. It does not require the documents for the purposes of publication, but rather to consider and assess the process by which an important matter of public policy has come to be reversed through the use of civil proceedings.
[9]On its behalf, Ms Goatley submits:
The Court’s discretion should properly be exercised to allow BATNZ to access the documents requested. BATNZ has a genuine and proper interest in being permitted access to the documents sought because BATNZ is directly and materially affected by the Government’s response to the proceedings – being
5 Senior Courts (Access to Court Documents) Rules 2017 (Rules), r 11(5).
the immediate and direct revocation of a regulation which it had adjusted its business operations to comply with.
The Government announced that the change to [the Regulations] was to resolve this proceeding. Given the Government’s actions are expressed to have been directly related to the matters in this proceeding, the corresponding public interest in the proceeding and the documents filed is elevated, as are our client’s interests as a person directly affected by the regulatory change.
To the extent that the proceeding deals with issues as to the process of how [the Regulations were] introduced, this affects the industry as a whole, not just Mason Corporation Limited.
There is no risk to Mason Corporation Limited’s right to a fair hearing, as the Government has resolved the proceeding through its announced policy decision. There is no real issue in relation to the protection of privacy interests of Mason Corporation Limited as:
(a)they are the entity that initiated the proceeding;
(b)the proceeding was intended to be heard in open Court;
(c)there is no expectation that the documents would remain private, as there has been public reporting on the recent policy change by the Government in response to the proceedings.
Shosha’s opposition
[10] Shosha opposes the request, and submits the affidavits filed in support of the proceeding are commercially sensitive. More broadly, Shosha indicates all documents in the proceeding should not be released to BATNZ, and it retains a “strong interest” over all of the documents.
[11] Shosha says access is “clearly not necessary in the circumstances and amounts to a competitor seeking the luxury of access to a competitor’s confidential and commercially sensitive information”. Shosha firmly rejects the suggestion that BATNZ can have a real interest in the interim orders sought and granted by the Court, and says the orders themselves are commercially sensitive.
[12] Shosha submits the fear of a competitor being able to access confidential and commercially sensitive information endangers the orderly and fair administration of justice.6
6 Equating this to the fears of damaging or embarrassing publicity discussed in Crimson Consulting v Berry [2018] NZCA 460, [2019] NZAR 30 at [36].
The position of the Crown
[13] The Crown “largely abide[s] the decision of the Court” but seeks to redact any mention of, or reliance on, the leaked advice in the file on the basis of legal privilege.7
General right of the public in a civil proceeding (r 8)
[14] Any person may have access to court information of a senior court to the extent provided by, and in accordance with, rules of the court.8
[15] BATNZ is therefore entitled to the formal court record,9 and I order accordingly.10 While I agree with Shosha’s observation that the minutes in this proceeding are difficult to comprehend without the associated joint memoranda, I see no basis to abrogate BATNZ’s right to the record.11
[16] The material issue in this contested application involves the other documents filed in the proceeding, namely affidavits, pleadings and memoranda of counsel.
Accessing documents not covered by general rights (rr 11, 12 and 13)
[17] Rule 11 applies here, as BATNZ are not entitled to access the balance of the documents under rr 8 or 9. In determining a request for access under r 11, I must consider the nature of, and the reasons given for, the request, and take into account the matters in r 12 (where relevant to the request or the objection).
[18]The matters are (as far as is relevant):
(a)the orderly and fair administration of justice:
7 If proceedings had continued, the Attorney-General intended to apply to strike out these references in the pleadings.
8 Senior Courts Act 2016, s 173(1).
9 Rules, r 8(1).
10 This comprises Mason Corporation Limited v Attorney-General HC Wellington CIV-2024-485- 800, 13 December 2024 (Minute of La Hood J); Mason Corporation Limited v Attorney-General HC Wellington CIV-2024-485-800, 31 January 2025 (Minute of Isac J); Mason Corporation Limited v Attorney-General HC Wellington CIV-2024-485-800, 21 February 2025 (Minute No 2 of Isac J); Mason Corporation Limited v Attorney-General HC Wellington CIV-2024-485-800, 4 June 2025 (Minute of Registrar Murdoch Moar) and Mason Corporation Limited v Attorney- General HC Wellington CIV-2024-485-800, 15 July 2025 (Minute No 2 of Registrar Murdoch Moar).
11 See Rules, r 5.
…
(c)the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice:
(d)the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person:
(e)the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions):
(f)the freedom to seek, receive, and impart information:
…
(h) any other matter that the Judge thinks appropriate.
[19] No one factor takes primacy over others.12 However, this Court has consistently recognised commercial sensitivity is of significance, especially where it can impact an entity’s ability to conduct its business.13 Open justice is a principle, not a freestanding right.14
[20] Further, r 13 connects the matters in r 12 to the status of the proceeding. As in Wilson Parking, it is arguable that the privacy interests here favour access to documents to be limited under r 13 of the Rules.15 These documents relate to interlocutory steps in a proceeding that did not reach a substantive hearing, and there will be no substantive hearing.16 When parties have not yet aired their dispute in public, the principle of open justice has less weight.17
[21] I also acknowledge the observation of the Court of Appeal in Crimson Consulting:18
12 BNZ Branch Properties Ltd v Wellington City Council [2021] NHZC 3013 at [7].
13 See for example, Commerce Commission v Eagle MAN Group Ltd [2024] NZHC 3070 at [117] and [118] and Crimson Consulting, above n 6, at [41].
14 Schenker AG v Commerce Commission [2013] NZCA 114, (2013) 22 PRNZ 286 at [22] and [36].
15 Rules, r 13(a).
16 See Wilson Parking New Zealand Ltd v ATE Property Ltd (t/as Mainland Parking) [2025] NZHC 2291 at [7] and [9].
17 Greymouth Petroleum Holdings Ltd v Empresa Nacional del Petróleo [2017] NZCA 490, [2017] NZAR 1617 at [25].
18 Crimson, above n 6, at [39] and [40].
When matters are still at the pleadings stage, there is an element of unfairness on parties in the publication of one side of the story. The allegations in the statement of claim have not yet been tested by the giving of evidence. There being no hearing in court, the need for transparency and public scrutiny is less, because pre-trial the court is generally not determining substantive issues.
However the principle of open justice, and the freedom to seek information, remain important factors which do not cease to work in the pre-trial stage.
[22] It is relevant that the proceeding was not a dispute between private entities.19 Rather, it was an application for judicial review of a public decision, which resulted in a law change. In Fletcher Construction Co Ltd v XAM Ltd,20 the connection of the proceeding to the Crown was weighed against the private interests of SkyCity and Fletcher Construction, and distinguished from Greymouth Petroleum Holdings Ltd.21
My decision
[23] I do not accept Shosha’s submission that there is limited public interest in this matter. BATNZ refers to several news articles focused on the revocation of the regulations. Moreover, the Government’s legislative changes respond directly to Shosha’s judicial review.22
[24] BATNZ occupies a grey zone between “a private party pursuing a commercial purpose”23 and a member of the public who is impacted by government decisions made in clear connection with this proceeding. Transparency regarding the decisions of the Court, and the Government, is warranted. As the Court of Appeal observes, the class of “non-parties” who wish to seek or impart information is not to be limited to the media and commentators.24 Further, the freedom to seek, receive and impart information is guaranteed by s 14 of the New Zealand Bill of Rights Act 1990.25
19 Compare to Crimson, above n 6, at [34] and [35].
20 The Fletcher Construction Co Ltd v Xam Ltd (formerly Mpm Waterproofing Services Ltd) [2025] NZHC 2459 at [23].
21 Citing Greymouth Petroleum Holdings Ltd, above n 17, at [67].
22 See press release, above n 4; and Cabinet Minute “Revoking Removeable Battery Requirements for Vaping Products” (19 May 2025) “CAB-25-MIN-1059.01” at [2].
23 Schenker AG, above n 14, at [38].
24 At [38].
25 See Electrix Limited v The Fletcher Construction Company Limited [2019] NZHC 2678 at [5].
The amended statement of claim and statement of defence
[25] As in other similar decisions,26 the commercially sensitive information in the statement of claim and statement of defence can be redacted. I consider the release of the amended statement of claim and the statement of defence is necessary to satisfy both the freedom to seek, receive and impart information,27 and the fundamental principle of open justice. The origin of, and basis for the proceedings,28 and the conclusion to them in the revocation of the Regulations, is of relevance to both BATNZ, and the wider public.
[26] I also determine that the notice of the proceeding fits within this category, and should be released.
Joint memoranda
[27] Shosha accepts that the joint memoranda do not contain confidential information to the same extent as the pleadings and affidavits filed. However, Shosha says:
As a preliminary point, the interim orders sought have no connection to the reason why BAT seeks access to the information, namely that it is affected by the repeal of the removeable battery requirement and that it is interested in how the government came to the decision to repeal it.
In particular, the joint memorandum of counsel dated 12 December 2024 contains the interim orders sought and granted. If BAT was given access to this material, it would be able to make conclusions on the way that Shosha has operated its business over the past 12 months. This, in of itself, is commercially sensitive information in which BAT can have no real interest.
[28] I respectfully disagree. The interim orders give insight into the progression of the matter through the Court, the timing of the repeal of the Regulations, and the agreements reached between the Government and Shosha. These are matters that squarely fall within BATNZ’s request to illuminate the proceedings, which have directly informed decisions of the Government in respect of the vaping industry. On
26 See Rascals International Limited v Taylor [2025] NZHC 2471 at [16(a)].
27 Crimson, above n 6, at [25] and [33].
28 See Electrix, above n 25, at [13].
the information before me, this is not akin to the “hostile nature” of the applicant’s interest in Schenker AG v Commerce Commission.29
[29] I consider BATNZ should have access to the joint memoranda, for three reasons.
[30] First, the formal Court record can only be understood when read together with these memoranda. Transparency of the court process at all stages is in the public interest.30 The public, including market participants, are entitled to review the decisions of the Court, as set out in r 8. Minutes that incorporate by reference the contents of memoranda, rather than expressly stating the orders sought, may in turn bring those memoranda within the scope of r 8.31
[31] Second, I consider the interim orders in the memorandum dated 12 December 2024 are of public interest and should be released in accordance with open justice. I conclude Shosha’s expectation of confidentiality is reduced when the agreement was reached with the Attorney-General on behalf of the Ministry of Health and where it relates to a leniency that may or may not have been communicated to other industry participants.
[32] Third, I note that this agreement is already in the public domain, following a proactive release of information from the Ministry of Health on 13 August 2025.32
[33] The other memoranda, which primarily contain administrative detail, can also be released, for the same reasons. I distinguish Financial Markets Authority v CLSA Premium New Zealand where the memoranda did not directly relate to the parties’ resolution and agreement, nor was the access request directed at the carriage of the proceedings, which is illuminated by such procedural matters.33
29 Schenker AG v Commerce Commission [2012] NZCA 245 at [27] [Jurisdiction Decision]; Schenker AG, above n 14, at [23], [30] and fn 23.
30 Crimson, above n 6, at [40].
31 See Commissioner, New Zealand Police v Hancox [2021] NZHC 100 at [12] for a grant of access to documents in order to assist the applicant in understanding the formal record.
32 Cabinet Minute “Revoking Removeable Battery Requirements for Vaping Products” (16 May 2025) “SOU-25-MIN-0058” at [17].
33 Financial Markets Authority v CLSA Premium New Zealand [2021] NZHC 933 at [10].
Affidavits
[34] I accept Shosha’s argument that the affidavits are “littered with confidential and commercial sensitive information for which it would be inappropriate to hand over to a competitor.” I agree that the disclosure of this information would go beyond that which is necessary to satisfy the principle of open justice.34 The need to have transparency in Court proceedings can be met by redaction and access,35 and cannot extend to confidential information regarding suppliers, sourcing and product development.
Conclusion
[35] I direct that the statement of claim and amended statement of defence, with my proposed redactions are to be provided to the parties to the underlying proceeding only (not to BATNZ). They will have three working days from the release of this judgment to consider my suggested redactions to the amended statement of claim and statement of defence, and provide comment to the Registry.
[36] Once the period for appeal has expired,36 subject to any changes I make to the redactions following the process outlined in [35] above, and if the parties have not informed the Registry of any appeal, I direct the Registry to provide the formal court record, the joint memoranda of the parties, and the redacted statement of claim and defence to BATNZ.
McHerron J
Solicitors:
Bell Gully, Auckland for applicant
Russell McVeagh, Auckland for Mason Corporation Ltd Crown Law, Wellington for Attorney-General
34 Rules, r 12(c).
35 Crimson, above n 6, at [43].
36 BATNZ’s request is an originating application, following Ingenious Asset Management Ltd v McConnon [2025] NZCA 143 and Boult v Crux Publishing Ltd [2022] NZCA 473.
0
9
0