Minister of Education v James Hardie New Zealand Limited

[2013] NZHC 3258

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-001899 [2013] NZHC 3258

UNDER the Consumer Guarantees Act 1993, the Fair Trading Act 1986 and the Building Act 2004

BETWEEN  THE MINISTER OF EDUCATION First Plaintiff

.../continued over

ANDJAMES HARDIE NEW ZEALAND LIMITED

First Defendant

.../continued over

Hearing:                   On the papers

Judgment:                6 December 2013

JUDGMENT OF ASHER J (Application for access to court record)

This judgment was delivered by me on Friday, 6 December 2013 at 1.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Meredith Connell, Auckland. Chapman Tripp, Auckland.

Bell Gully, Auckland.
Minter Ellison Rudd Watts, Auckland.

Copy to:

Simpson Grierson, Auckland.

THE MINISTER OF EDUCATION v JAMES HARDIE NEW ZEALAND LTD [2013] NZHC 3258 [6

December 2013]

Plaintiffs continued

THE SECRETARY FOR EDUCATION Second Plaintiff

THE MINISTRY OF EDUCATION Third Plaintiff

BOARD OF TRUSTEES OF PAPATOETOE WEST SCHOOL Fourth Plaintiff

BOARD OF TRUSTEES OF HOWICK INTERMEDIATE SCHOOL

Fifth Plaintiff

BOARD OF TRUSTEES OF NEW PLYMOUTH BOYS’ HIGH SCHOOL Sixth Plaintiff

BOARD OF TRUSTEES ROTOTUNA PRIMARY SCHOOL

Seventh Plaintiff

Defendants continued

ANDSTUDORP LIMITED Second Defendant

CARTER HOLT HARVEY LIMITED Third Defendant

CSR BUILDING PRODUCTS (NZ) LIMITED

Fourth Defendant

Introduction

[1]      The Auckland Council, a non party, applies for access to the court record in these proceedings.   The parties ask that the application to be determined on the papers.  Submissions have been filed by the Council and the parties.

[2]      This is a proceeding commenced by the Minister of Education against James Hardie New Zealand Ltd and others, and relates to alleged defects in the construction of schools (the present proceeding).  The plaintiffs include the Minister of Education and Boards of Trustees of particular schools.

[3]      The defendants James Hardie New Zealand Ltd, Studorp Ltd and Carter Holt Harvey Ltd are designers, manufacturers and suppliers of cladding sheets and cladding systems which were purchased and installed in school buildings.   CSR Building Products (NZ)  Ltd is an importer and supplier of cladding sheets and cladding systems purchased and installed in school buildings.

[4]      Such applications fall under r 3.13 of the High Court Rules.  The process is informal.1  All persons adversely affected by the application are entitled to be heard,2 if it is practicable to give them notice.3   The application must set out the reasons for the request.4

[5]      The factors to be taken into account in assessing such an application are set out in r 3.16.  Open justice is not the paramount consideration, but just one of the matters to be considered. The list at r 3.16 is not hierarchical.5

[6]      The Council is named as a third party in a leaky school claim before the High Court at Auckland, proceeding CIV-2012-404-7673 (the school proceeding).   The school  is  situated  at  2 Franklyne  Road,  Otara,  known  as  Sir  Edmund  Hillary

Collegiate.  The plaintiffs include both the Minister and the Secretary.  The plaintiffs

1      High Court Rules, r 3.13(2).

2      Rule 3.13(5).

3      Rule 3.13(6).

4      Rule 3.13(2)(b).

5      Schenker AG v Commerce Commission [2013] NZCA 114 at [19], [21], [23] and [37].

allege that buildings built at the school contain defects that allow moisture ingress causing damage.

[7]      The Council claims that the subject buildings in the school proceeding were built with cladding systems designed, manufactured, imported and/or supplied by James Hardie.  It is these buildings that the plaintiffs alleged fail to comply with the Building Code and allow moisture ingress, causing damage, resulting in their loss. The plaintiffs did not name James Hardie as a defendant in the school proceeding.

[8]      The  Council     originally  asserted  that  the  formal  Court  record  of  the Ministry’s proceeding was likely to be relevant to the school proceeding, and access to parts of the formal Court record would assist with the preparation of pleadings, evidence and submissions in the school proceeding.

[9]      These  present  proceedings  have  now  been  amended  so  that  the  school buildings are removed from those subject to the claim.  Mr Fairnie, counsel for the Auckland Council nevertheless submits:

… it remains [the] former statement of claim contained information that is the subject of proceeding CIV-2012-404-7673.   The Council’s application can therefore be limited to access to the previous statement of claim which contained the common buildings in both proceedings.

If the Council’s application is not successful, it will await discovery from the first, second and third plaintiffs in proceeding CIV-2012-404-7673 of any related information and materials that were previously the subject of this proceeding.

[10]     A number of submissions have been received in opposition.   It has been pointed out for James Hardie and Studorp that given the removal of the duplicate buildings from these proceedings, there is no risk of inconsistent judgments, double recovery or multiplicity of proceedings.  Therefore the material in the James Hardie proceedings is unlikely to assist in the other proceedings.  There is no formal overlap between the claims.

[11]     It is  suggested that  something more than the  potential of some practical assistance in drafting and running a different proceeding is required.  It is submitted that there is no presumption in favour of disclosure and that the Council’s request is

not aimed at the orderly and fair administration of justice, but at fishing for new information about “… a general scenario that the Council is well familiar with”.

[12]     Carter Holt Harvey also opposes the request.  On the other hand, the fourth defendant does not oppose, providing undertakings are provided and the documents are limited to the statement of claim.

[13]     In their most recent submissions, the plaintiffs point out that there were no particular reasons put forward for seeking access to the court record and that it is not clear why the Council contends that it is desirable for the Court to grant access.  It is claimed that discovery in the school proceedings is the proper avenue for the Council to obtain non-privileged documents.

Decision

[14]     A person seeking access to court records is obliged to set out the reasons for the application.   The Court must be able to discern a legitimate reason for the application.  Certain reasons, for instance a request by a competitor of a party for access so that material helpful to the competitor could be obtained, are unlikely to be seen as valid.   Such a request would not further the orderly and fair administration of justice, nor advance the principle of open justice.

[15]     The fact that an application is part of an attempt to obtain information that is not known, and therefore in that sense “fishing”, will not be fatal to the application. Inevitably applications will only be made if the applicant is not at that point privy to the information and is uncertain as to what detail will be disclosed.  Otherwise it is unlikely that any application would be made.   Equally, however, an unfocussed application that is just a “shot in the dark” in the hope that something unspecified might be hit that will be of use, may not succeed.

[16]     Taking into account these points I turn to the factors raised in r 3.16.

[17]     Given the lack of any identified heads of information that are being sought, and the lack of any common subject matter in the proceedings, I cannot see how the orderly and fair administration of justice is advanced by granting the application.

Nor is the principle of open justice or the freedom to receive information advanced by granting the application of help to the applicant, as there is no evidence of public interest in the material, and no identified reason in the public interest for its disclosure. These facts are against granting the application.

[18]     It is in favour of the application that I am unable to identify any particular confidentiality or privacy interests that arise in relation to the statement of claim, save for the general interest of confidentiality and privacy that all litigants will have. The position here can be contrasted with that in Commerce Commission v Schenker AG where disclosure was refused.6   Much of the material sought there was properly characterised as confidential.

[19]     However, as in Schenker, there is in the end no satisfactory explanation given by the applicant as to why the access is required.  This case is different to Minister of Education v James Hardie New Zealand Ltd7 where Associate Judge Faire granted a similar application.  In that case, there were buildings that were common to both sets of proceedings, and the plaintiff did not oppose the application.

[20]     I am not satisfied that there is a legitimate reason for the present request. There may well have been when there were common buildings in both proceedings. But now there is not.  Any relevant material can be obtained through the process of discovery in the school proceedings, as the Council fairly concedes.  Of course, there may be no material relating to this proceeding that is discoverable.   That is not known.

[21]     I am  reluctant  also  to  grant  access  to  an  earlier statement  of claim  that contains causes of action or material that have been abandoned by the plaintiffs.  The primary focus of the principle of open justice insofar as it applies to court proceedings, is in relation to what happens in the courtroom.  This is reflected in the High  Court  Rules  which  distinguish  between  the  substantive  hearing  phase  of

proceedings and other phases.   There is a more permissive regime that applies to

6      Commerce  Commission  v  Schenker  AG  [2012]  NZHC  271,  affirmed  in  Schenker  AG  v

Commerce Commission [2013] NZCA 114.

7      Minister of Education v James Hardie New Zealand Ltd [2013] NZHC 1872.

access once the substantive hearing in underway.8   The principles of open justice and freedom to receive information have less force when they are applied to earlier discarded pleadings that will not be relied on or used in the courtroom phase.  It will often be the case that prior to trial a plaintiff withdraws allegations which the defendant  has  denied,  and  the  plaintiff  can  no  longer  support.   The  Court  will hesitate before directing that court records relating to such discarded and disputed allegations be made available.

Result

[22]     The application is declined.

[23]     As to costs, they are reserved for further submissions should a party choose to pursue the issue.

……………………………..

Asher J

8      Rule 3.9.