Minister of Education v Carter Holt Harvey Limited
[2020] NZHC 1871
•30 July 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2013-404-1899
[2020] NZHC 1871
UNDER Consumers Guarantees Act 1993, the Fair Trading Act 1986, the Building Act 2004 BETWEEN
MINISTER OF EDUCATION AND OTHERS
First to Fourth Plaintiffs
AND
CARTER HOLT HARVEY LIMITED
Defendant
AND
AUCKLAND COUNCIL AND OTHER TERRITORIAL AUTHORITIES LISTED IN SCHEDULE 1 TO THE FIRST
AMENDED STATEMENT OF CLAIM BY THIRD DEFENDANT AGAINST FIRST TO FIFTIETH THIRD PARTIES
First to Fiftieth Third Parties
Hearing: On the papers Counsel:
N Flanagan, J Carlyon, L Farmer and V Fowler for plaintiffs D Salmon, M Heard, D Nilsson and H Bush for defendant
Judgment:
30 July 2020
JUDGMENT (No. 10) OF FITZGERALD J
[As to request for access to Court file]
This judgment was delivered by me on 30 July 2020 at 3pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Meredith Connell, Auckland
LeeSalmonLong, Auckland
To: Adina Thorn Lawyers, Auckland (A Thorn)
Minister of Education v Carter Holt Harvey Limited [2020] NZHC 1871 [30 July 2020]
AND AUCKLAND COUNCIL AND OTHER
TERRITORIAL AUTHORITIES LISTED IN SCHEDULE 1 TO THE FIRST AMENDED STATEMENT OF CLAIM BY THIRD DEFENDANT AGAINST FIRST TO FIFTIETH THIRD PARTIES
First to Fiftieth Third Parties
Introduction
[1] The plaintiffs (collectively, the Ministry) sue Carter Holt Harvey Ltd (Carter Holt) in relation to what is alleged to be Carter Holt’s inherently defective product “Shadowclad”. Shadowclad has been used to clad a number of school buildings around New Zealand. The Ministry’s claim relates to approximately 830 such buildings nation-wide. Carter Holt disputes its product is defective, and says the problems experienced in the school buildings is caused by a range of construction, installation and design defects. A six month Stage 1 trial is due to commence before me on 3 August 2020.
[2] In Paine v Carter Holt Harvey Ltd, the plaintiffs are the owners of 144 residential buildings who also say Shadowclad is inherently defective and is causing their buildings to leak (the Paine Proceedings).1 A Stage 1 hearing in the Paine Proceedings is scheduled to commence in February 2022. While there are some differences between the two sets of proceedings, there is no doubt there are a number of common factual and legal issues.
[3] The Applicants seek access to the Court file in this proceeding, and orders that they be provided (in some instances on a “rolling basis”) with copies of certain documents from the commencement of the Stage 1 trial on 3 August 2020. The request is somewhat sweeping in nature. The Applicants request:
(a)copies of all documents from the Court file which fall within the definition of “formal court record”, as defined in r 4 of the Senior Courts (Access to Court Documents) Rules 2017 (the Rules);
(b)“the right to inspect all documents on [this] file which are not subject to any applicable confidentiality or privilege restrictions, and receive copies of any documents requested” (emphasis added);2
1 Paine v Carter Holt Harvey Ltd CIV-2018-404-1143. I will refer to the plaintiffs in the Paine Proceedings as “the Applicants” in the balance of this judgment.
2 This request is limited to material relating to the plaintiffs and defendant in these proceedings; materials relating to third parties is not sought.
(c)the right to receive copies of:
(i)all opening and closing submissions in these proceedings after they are read in Court;
(ii)all briefs of evidence after they are read in Court;
(iii)the notes of evidence from the Stage 1 trial as they are produced; and
(iv)any materials handed up to the Court during the Stage 1 hearing.
The parties’ response to the request
[4]The Applicants’ request has been provided to the parties for comment.
The Ministry’s response
[5] The Ministry does not object, at least in broad terms, to the request, but says the following:
(a)Access to the briefs of evidence, if granted, should be on the basis that provision only occurs in concert with the transcript and at the close of the evidence phase of the trial. The Ministry says that the briefs are only part of a witness’s evidence, and provision of them at the same time as the (complete) notes of evidence will enable counsel to review the transcript for accuracy before provision to the Applicants.
(b)It objects to provision of the written submissions. While accepting access to written submissions is sometimes granted to ensure accurate reporting of such submissions,3 there is no legitimate reason advanced in the Applicants’ request as to why access to the written submissions is required in this case for the purposes of the Rules. The Ministry also
3 Electrix Ltd v Fletcher Construction Company Ltd [2019] NZHC 2678, (2019) 25 PRNZ 137 at [16].
notes that written submissions are only “the starting point” of each party’s case, being completed by counsel’s oral (opening and closing) submissions at the hearing.
[6] The Ministry is also concerned that provision of materials to the Applicants does not unduly interfere with, or cause inconvenience during, the lengthy Stage 1 trial. It therefore seeks a direction that, to the extent the request is granted, provision of the relevant materials is to be facilitated by the Registry rather than by the parties themselves.
Carter Holt’s response
[7] While Carter Holt is concerned at the sweeping nature of the access request, it states it will take a pragmatic approach and therefore does not object to access being granted to:
(a)the formal court record;
(b)briefs of evidence after they have been read into evidence (and accordingly subject to any necessary amendments as a result of rulings on admissibility);
(c)materials handed up during the course of the trial (subject to any restrictions on matters such as confidentiality and privilege); and
(d)the notes of evidence, once finalised.
[8] Accordingly, and at least in relation to these materials, Carter Holt takes broadly the same approach as the Ministry.
[9] Carter Holt also says that the request for access to the remaining documents (such as all documents concerning all prior interlocutory applications) is not required by the principle of open justice and will not enhance the fair and orderly administration of justice. Carter Holt is also concerned that the broad access sought will undermine discovery orders agreed and made in the Paine Proceedings, given the relevance of
documents filed in these proceedings has been considered and subject to considerable discussion between the parties in the Paine Proceedings. Carter Holt notes that at no stage during the discovery process in the Paine Proceedings did the Applicants seek discovery of all documents on this file, and a broader scope of discovery in the Paine Proceedings should not be achieved via a request to access the Court file.
[10] Carter Holt is also opposed to access being given to the written submissions, though for slightly different reasons than the Ministry. Carter Holt says providing the Applicants with written copies of Carter Holt’s opening and closing submissions will unfairly advantage the plaintiffs in the Paine Proceedings, given they will have a full written version of Carter Holt’s defence to the case in relation to Shadowclad well in advance of Carter Holt receiving the Paine plaintiffs’ own evidence or submissions in the Paine Proceedings. Carter Holt says provision of the briefs of evidence and notes of evidence in these proceedings, once the evidential phase of the hearing is complete, is sufficient to ensure the orderly and fair administration of justice is met. Carter Holt also notes that the Applicants, or their representatives, will be able to observe all open sessions of the trial in this proceeding, including when submissions are presented.
[11] While the request for access does not specifically refer to the electronic casebook in this matter, it is strictly captured by the request to inspect all documents on the Court file (given it has recently been filed with the Court). Carter Holt opposes access to the electronic casebook because it is not yet known which of those documents will be relied on and produced during the hearing. In addition, all documents in the common bundle that are relevant in the Paine Proceedings will have been discovered in that proceeding in any event.
[12] Carter Holt also notes that the most recent versions of the pleadings in this case have already been discovered by it in the Paine Proceedings, and no reason has been advanced why earlier versions of the pleadings are required.
[13] Finally, and like the Ministry, Carter Holt says that access to any documents should not be on the “rolling” basis sought by the Applicants, given the length of the trial and the number of witnesses to be called, it would place a significant administrative burden on the Registry and/or the parties.
Approach
[14] Access to court documents is governed by the Rules. Any person may apply to access any document on the Court file under r 11. A Judge may grant the request, with or without conditions, after considering the nature of, and reasons for, the request and taking into account those of the factors listed in r 12(a) to (h) that are relevant (as to which see [16] below). As to the reasons for the request, there is no dispute that access to court documents for use or assistance in parallel litigation is prima facie a legitimate reason for seeking access to a Court file.4
[15] Rule 13 sets out the approach to balancing the matters listed in r 12. Relevantly for the purposes of the present request, open justice has greater weight during the substantive hearing phase than at other phases of a proceeding, as well as greater weight in relation to documents relied on in the hearing than other documents.
Discussion
[16] I consider the following matters from r 12 are relevant to the Applicants’ request:
(a)The orderly and fair administration of justice: This principle can be advanced by those with an interest in parallel proceedings having access to documentation in another file in which similar legal and/or factual matters are to be determined. This principle is plainly applicable here.
(b)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: This principle is relevant because the present
4 See for example GFD I LLP v Melview (Kawarau Falls Station) Investments Ltd (in rec) [2012] NZHC 1796; Minister of Education v James Hardie New Zealand Ltd [2013] NZHC 1872; Community of the Sacred Name Society or Trust Board v Attorney-General [2019] NZHC 1572 [28]; and Sanofi-Aventis Deutschland GMBH v AFT Pharmaceuticals Ltd [2012] NZHC 1051, (2012) 21 PRNZ 130 at [6].
request seeks access to all interlocutory materials in these proceedings since they were commenced in 2013.
(c)The principles of open justice and the freedom to seek, receive and impart information: These principles will be relevant to most if not all requests for access to a Court file. The principle of open justice attracts more weight, however, in the context of requests for access by media organisations who wish to report on the working of the court (rather than the basis for the present request, which is ultimately to advance a private interest).5 It is also relevant that the principle of open justice will be given more weight in relation to documents admitted in evidence in the hearing than to other documents.6
[17] Taking these matters into account, and conducting the balancing exercise required by r 13, I am satisfied that at least parts of the Applicants’ request ought to be granted. Like the parties, however, I have some concern in relation to the broad and sweeping nature of the request, as well as the expectation that access to some materials will be provided on a “rolling” basis. Given the nature of these proceedings and the Stage 1 hearing itself, this would no doubt impose a quite significant and additional burden on Registry staff during the course of the hearing. In my view, this risks detracting from, rather than enhancing, the orderly and fair administration of justice.
[18]Turning to the particular materials or documents already on the Court file:
(a)Access is granted to all judgments and minutes issued by the Court in these proceedings. These materials fall within the definition of “formal court record” to which the Applicants have a (prima facie) right of access. However, the Applicants request copies of all such documents (that is, not only access). Given these proceedings have been on foot since 2013, there have been a large number of judgments delivered and an even larger number of minutes issued. I do not consider it is
5 The principle of open justice in r 12 therefore expressly refers to the encouragement of fair and accurate reporting of and comment on court hearings and decisions.
6 Greymouth Petroleum Holdings Ltd v Impresa Nacional Del Petroleó [2017] NZCA 490, [2017] NZAR 1617 at [15] at [25].
consistent with the orderly and fair administration of justice to require the Registry to undertake the very considerable task of copying all earlier minutes and judgments in these proceedings. This is particularly so when all judgments will be available to the Applicants through the Courts of New Zealand website (or similar legal databases), and a large number of the minutes are likely to be wholly irrelevant to matters arising in the Paine Proceedings. Access to the judgments and minutes is accordingly to be effected by the Applicants attending the Registry and reviewing the judgments and minutes issued in these proceedings.
(b)Access to the pleadings is declined. The Applicants already have copies of the most recent versions of the pleadings through their discovery in the Paine Proceedings. No reasons have been advanced as to why access to all earlier versions of the pleadings ought to be granted. Again, given the sheer size of the pleadings and the number of iterations of them, arranging access to and/or copying all earlier versions (which are now of no relevance to the matters to be determined at trial) would place a significant burden on the Registry.7
(c)I decline the present request to access all other documents on this file. By referencing “all other documents”, the request extends to all materials relating to all previous interlocutory applications in these proceedings. As noted, these proceedings were commenced in 2013. There have been numerous interlocutory applications and hearings.8 The interlocutory applications will in large part be bespoke to these proceedings. And again, all judgments delivered on the interlocutory applications will be available to the Applicants through publicly available sources. I have also granted access to all minutes issued in these proceedings. Retrieving and organising all of these materials for access will be a significant undertaking for the Registry. If, having
7 Declining this aspect of the request is without prejudice to a renewed application for access to earlier versions of the pleadings, which would need to specify why such access is consistent with the Rules.
8 As can be seen, this is my tenth interlocutory judgment in these proceedings since I commenced case managing them in late 2017.
reviewed the judgments and/or minutes, the Applicants seek access to particular interlocutory applications or related documents, a more targeted request may be made.
(d)For the reasons give by Carter Holt and summarised at [11] above, I decline access to the full electronic casebook.
[19] For completeness, while the request for access extends to all documents making up the “formal court record”, this extends to:9
(a)a register or an index;
(b)a published list that gives notice of a hearing; and
(c)a document that may be accessed under an enactment other than these Rules or constitutes notice of its contents to the public.
[20] I do not understand the Applicants to seek access to these aspects of the formal court record. Nor, on the materials presently before the Court, do I see how they could be of relevance to, or of use in, the Paine Proceedings in any event. And arranging access to or copies of these aspects of the formal court record would also be a significant undertaking for the Registry. I accordingly decline to grant access to those aspects of the formal court record summarised at [19] above. Leave is reserved, however, for the Applicants to bring this aspect of the request back before the Court with further information as to why access to this information is consistent with the Rules.
[21]In terms of materials to be generated by or produced in the Stage 1 trial itself:
(a)I grant the request that copies of all briefs of evidence, after they have been read in court, are provided to the Applicants. For the reasons advanced by the parties, however, this is to be attended to (by the Registry) at the close of the evidence phase of the hearing (which is
9 Senior Courts (Access to Court Documents) Rules 2017, r 4.
likely to be near the end of this year). In addition, only those copies which are signed by the witness in Court (and thus capturing any amendments made to the briefs during evidence-in-chief) are to be provided.
(b)I also grant the request that a copy of the notes of evidence be provided to the Applicants. Again, however, this is to be attended to (by the Registry) at the completion of the evidence phase of the hearing, and after counsel have had a reasonable opportunity to review and make any necessary amendments to the notes of evidence.
(c)I decline the request for copies of all opening and closing submissions after they are read in Court. It is not clear that the detailed opening and (yet to be produced) closing submissions will be “read in court”. Counsel’s oral submissions may, for example, depart quite significantly from the written materials. I also have some sympathy with Carter Holt’s submission as to the forensic advantage to the Applicants by receiving Carter Holt’s full written opening and closing submissions in this case before Carter Holt has received the Applicants’ evidence (and submissions) in the Paine Proceedings. It will also be open to the Applicants to attend the Stage 1 trial, including during the presentation of submissions.
(d)I decline the request to receive copies of any materials handed up to the Court during the hearing. It is not yet known what materials might be handed up during the hearing and what restrictions, if any, might attach to them. It is not appropriate to deal with such a request in a vacuum. This request should therefore be revisited once the evidence phase of the proceeding is complete.
Condition of access
[22] The access granted by this judgment is on the condition that, other than materials already in the public domain (such as judgments), the materials are to be
used solely for the purpose of the Paine Proceedings and are not to be disclosed to any third parties other than for that purpose.
Costs
[23]I make no order as to costs on the application.
Fitzgerald J
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