Minister of Education v James Hardie New Zealand Ltd
[2013] NZHC 1872
•26 July 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
COMMERCIAL LIST
CIV-2013-404-1899 [2013] NZHC 1872
UNDER the Consumer Guarantees Act 1993, the
Fair Trading Act 1986, the Building Act
1991 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
Counsel: JA Farmer QC and NF Flanagan for plaintiffs
JA McKay for first and second defendants
DJ Goddard QC, RG Simpson and JK Wilson for third defendant
SC Price for fourth defendant
KH McLellan QC, AE Ferguson and GNM Tompkins for applicants for inspection
Judgment: 26 July 2013
JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application for acces to statement of claim]
This judgment was delivered by me on 26 July 2013 at 12-noon, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
THE MINISTER OF EDUCATION v JAMES HARDIE NEW ZEALAND LIMITED [2013] NZHC 1872 [26
July 2013]
Plaintiffs continued THE SECRETARY FOR EDUCATION Second Plaintiff
THE MINISTRY OF EDUCATION Third Plaintiff
THE BOARD OF TRUSTEES OF PAPATOETOE WEST SCHOOL Fourth Plaintiff
Defendants continued THE BOARD OF TRUSTEES OF HOWICK INTERMEDIATE SCHOOL Fifth Defendant
THE BOARD OF TRUSTEES OF NEW PLYMOUTH BOYS’ HIGH SCHOOL Sixth Defendant
THE BOARD OF TRUSTEES OF ROTOTUNA PRIMARY SCHOOL Seventh Plaintiff
STUDORP LIMITED Second Defendant
CARTER HOLT HARVEY LIMITED Third Defendant
CSR BUILDING PRODUCTS (NZ) LIMITED
Fourth Defendant
The application
[1] Opus International Consultants International Ltd (Opus) applies for access to the statement of claim filed by the Ministry of Education, the first plaintiff in this proceeding. The application is made in reliance on r 3.13 of the High Court Rules.
Position of the parties in this proceeding to the application
[2] Counsel for the plaintiffs advises that the plaintiffs do not oppose the request to access the statement of claim, subject to appropriate undertakings begin given.
[3] The first, second, third and fourth defendants oppose permission being granted to access the statement of claim.
Relevant High Court Rules and procedure to be followed
[4] The application is made pursuant to r 3.13, which provides:
3.13Applications for permission to access documents, court file, or formal court record other than at hearing stage
(1) This rule applies whenever the permission of the court is necessary under these rules and is sought to access a document, court file, or any part of the formal court record, except where access may be sought under rule 3.9.
(2) An application under this rule is made informally to the Registrar by a letter that—
(a) identifies the document, court file, or part of the formal court record that the applicant seeks to access; and
(b) gives the reasons for the application.
(3) The application is heard and determined by a Judge or, if a Judge directs the Registrar to do so, by the Registrar.
(4) On receipt of an application made in accordance with subclause (2), the Judge or Registrar may direct that the person file an interlocutory application or originating application.
(5) The applicant must give notice of the application to any person who is, in the opinion of the Judge or Registrar, adversely affected by the application.
(6) The Judge or Registrar may dispense with the giving of notice under subclause (5) if it would be impracticable to require notice to be given.
(7) The Judge or Registrar may deal with an application on the papers, at an oral hearing, or in any other manner the Judge or Registrar considers just.
[5] Following receipt of the application and its referral to me, I gave directions that required the application to be given to the legal representatives of the parties to this proceeding. I directed that any objection must be notified within five working days.
[6] Following receipt of objection by the first, second, third and fourth defendants a telephone conference was called for the purpose of giving directions for the disposal of the application. My minute of 19 June 2013 recorded the position reached at that telephone conference. The important parts of this minute provided as follows:
[2] Counsel are agreed that a formal application is not required and that the matter should be determined on the papers and after submissions in opposition and reply are received.
[3] The submissions in support are contained in a memorandum filed on behalf of the second defendant in Civ-2012-404-415, dated 13 June
2013 – court document 10.
[4] Counsel are agreed that it is likely that a single set of submissions can be advanced in opposition on behalf of the first and second defendants, the third defendant and fourth defendant (the 1899 proceeding) and that the draft will be circulated on 26 June 2013. On that basis, submissions in opposition to the request shall be filed and served by 3 July 2013.
[5] Submissions in reply shall be filed and served by 8 July 2013.
[6] The Registrar shall refer the file to a Judge or Associate Judge for determination of the request as soon as possible after receipt of the reply submissions.
[7] The plaintiffs in both proceedings adopt a neutral position with respect to the request but on the basis that appropriate undertakings can be given. It is desirable that the form of these undertakings be settled and made available to the court. As it affects all parties, Mr McLellan will circulate draft undertakings to all counsel by 24 June
2013. It is anticipated that counsel will confer with a view to agreeing on the formal language in relation to the proposed
undertakings so that the position can be advised to the court when the request is considered.
[7] Submissions in opposition and reply have been filed. The parties’ positions
on an appropriate undertaking have also been covered in separate memoranda.
[8] Rule 3.16 lists the factors that must be taken into account by the court when considering an application under r 3.13. Rule 3.16 provides as follows:
3.16 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.
Background
[9] Opus is the second defendant in CIV-2012-404-415, which I shall refer to as the “Reremoana” proceeding. It is a proceeding in which the Minister of Education is the plaintiff.
[10] This proceeding is a proceeding commenced by the Minister of Education and others against James Hardie New Zealand Limited and others. I shall refer to this proceeding as the “James Hardie” proceeding.
[11] Both the James Hardie proceeding and the Reremoana proceeding relate to the construction of schools.
Reasons advanced by Opus for the application
[12] Opus alleges that there is likely to be an overlap between the key allegations by the plaintiffs in both proceedings. In his memorandum, Mr McLellan particularises that position as follows:
a.Opus understands that the James Hardie Proceeding relates principally to alleged issues with the design, constructions and installation of exterior cladding systems in schools. While the Reremoana Proceeding relates to alleged defects in one school only, there are extensive allegations in relation to the design, construction and installation of the exterior cladding systems in that school.
b.It is possible that the cladding systems in issue in the Reremoana Proceeding were designed, manufactured and/or installed by one or more of the defendants in the James Hardie Proceeding.
c.Alternatively, if the exterior cladding systems in issue in the James Hardie Proceeding are different to those used in the construction of Reremoana school, the allegations raised, and core facts, in the James Hardie Proceeding may still be relevant to Opus’s defence of contributory negligence by the Minister and/or its agents or consultants.
[13] Mr McLellan submits that Opus will not be aware of the extent of the overlap between the proceedings until it has seen the statement of claim in the James Hardie proceedings.
The defendants’ grounds of objection to access to the statement of claim
[14] The four defendants adopt a common basis for opposing the request for access and submit that access should be declined for the following reasons:
(a) The request is premature given the early stage of the proceedings.
None of the defendants have yet filed a statement of defence, nor has the matter been heard at a first call or directions hearing. Further,
the statement of claim is lacking in relevant particulars. It is
therefore anticipated that there will be a need for the plaintiffs to file an amended statement of claim before defences are due.
(b) Rule 3.16 of the High Court Rules sets out the matters to be taken into account when determining a request for access to a court file by a non-party. Neither Mr McLellan QC’s letter nor the application filed by Opus in CIV-2012-404-415 specify the particular matters that are said to justify the granting of access in terms of rule 3.16. The reasons set out in Ms Swan’s affidavit for wishing to peruse the statement of claim in CIV-2013-404-1899 do not find support under any of the grounds set out in rule 3.16 and, in any event, are
outweighed by the interests in the orderly administration of justice at this very early stage of CIV-2013-404-1899.
The Court’s approach to applications under r 3.13
[15] In Schenker AG v Commerce Commission the Court of Appeal gave guidance when assessing the factors to be taken into account in r 3.16 and said:1
Rule 3.16 is not hierarchical. None of its subclauses, including subcl (c), can be prioritised. The relevance and weight ascribed to each subclause will depend on the context of each r 3.9 request and in particular the nature of and the reasons for an application or request. It is trite to observe that each request will give rise to different considerations and will require a specifically focussed evaluation.
[16] Where there is objection to disclosure there is no presumption in favour of disclosure. The judge is required to determine the request and objection applying r 3.16, which sets out the matters to be taken into account.2
[17] Open justice is not a paramount consideration in the current access regime. It is just one of the matters to be taken into account. In this respect, the Court of Appeal3 has confirmed the approach adopted by Mallon J in Chapman v P4 in preference to that of Wild J in BNZ Investments Ltd v Commissioner of Inland Revenue.5
Analysis
[18] I deal with each of the matters referred to in counsel’s submissions and
identified in r 3.16.
The orderly and fair administration of justice
[19] The two proceedings involve:
(a) the same plaintiffs; and
1 Schenker AG v Commerce Commission [2013] NZCA 114 at [37].
2 At [21].
3 At [19]–[23].
4 Chapman v P (2009) 20 PRNZ 330 (HC).
5 BNZ Investments Ltd v Commissioner of Inland Revenue (2010) 24 NZTC 23,997 (HC).
(b)schools where it is alleged that there are issues with the design, construction and installation of exterior cladding systems.
[20] The plaintiffs’ pleadings in the James Hardie proceedings undoubtedly contain core allegations that may help the applicant Opus in its decision whether or not to seek joinder of additional parties in the Reremoana proceedings.
[21] What Opus is seeking is information relating to the allegations raised by the plaintiffs in the James Hardie proceedings. That has, no doubt, importance so far as possible joinder of additional parties is concerned, but also on the question of whether or not there are any issues that might support a defence of contributory negligence. The reason for the application in what is a limited form, namely access to a statement of claim, is legitimate and, having regard to the general allegations in both proceeding, is not of a fishing nature.
[22] Both proceedings involve publicly owned buildings which are alleged to be leaky buildings where there is strong public interest in the Court ensuring that justice is administered through the fair and efficient apportionment of liability amongst culpable parties. This case is therefore distinguishable from Sanofi-Aventis Deutschland GMBH v AFT Pharmaceuticals Ltd.6
[23] The defendants are concerned that they should be able to ventilate the dispute raised by the current statement of claim without scrutiny from outside observers. There is justification for that objection, certainly in the wider context where interlocutories, including discovery and interrogatories and also, perhaps, notices seeking further particulars, are involved. That position has been recognised in a number of decisions.7
[24] Where, however, the access is limited simply to a pleading, as it is in this case, the objection cannot be regarded as so strong. In GFD I LLP v Melview
(Kawarau Falls Station) Investments Ltd (in rec) Winkelmann J granted access to
6 Sanofi-Aventis Deutschland GMBH v AFT Pharmaceuticals Ltd [2012] NZHC 1051, (2012)
21 PRNZ 130.
7 Sanofi-Aventis, above n 6; Commerce Commission v Air New Zealand Ltd [2012] NZHC 271.
pleadings whilst denying access to the balance of the material sought.8 On balance, and applying r 3.16(a), I consider that the orderly and fair administration of justice in this case, subject to conditions that I will refer to later, support access to the current statement of claim.
The protection of confidentiality, privacy interests … and any privilege held by, or
available to, any person
[25] The defendants refer specifically to r 3.16(b) and the need for protection of confidentiality and private interests. I do not regard this as a significant factor in this case. The application relates to the plaintiffs’ statement of claim only. It therefore relates simply to allegations made by the plaintiffs against the defendants. There is no attempt, in the request, to seek the defendants’ response to same. There will, of course, always be a desire to allow parties to conduct a private dispute without scrutiny by non-parties. In addition, there is an added factor, and that is the applicant’s offer to give undertakings restricting access to the statement of claim to the legal advisers and expert instructed in the Reremoana proceedings.
[26] Where the request is limited, as it is in this case, and there is the protection of undertakings, which I will refer to more fully later in this judgment, I consider the balance is best achieved by ordering disclosure.
The principle of open justice, namely encouraging fair and accurate reporting of and comment on, court hearings and decisions
[27] The parties, in their submissions, did not specifically refer to r 3.16(c) and the principle of open justice. That is understandable because this application is not about the reporting of, or comment upon the James Hardie proceeding.
The freedom to seek, receive and impart information
[28] In evaluating this criterion, the applicant’s position will always be
strengthened where the request has direct relevance to the applicant’s position. Here
8 GFD I LLP v Melview (Kawarau Falls Station) Investments Ltd (in rec) [2012] NZHC 677, (2012) 21 PRNZ 125. See also the comment in Schenker AG v Commerce Commission, above n
1, at [44] and of Asher J at first instance: [2012] NZHC 271 at [41].
the applicant is seeking information to assist with the private purposes, namely its own case.9
[29] In addition, there is the public interest factor in this case, which I have referred to in [22], which distinguishes the request made in this case from the request which was considered by the court in the Sanofi-Aventis Deutschland GMBH v AFT Pharmaceuticals Ltd.10 I therefore reject the defendants’ contention that little weight should be given to this factor in this case.
[30] Apart from the question of undertakings, counsel did not address specifically on the criteria set out in r 3.16(e) and (f). That is understandable because neither have specific significance so far as the current application is concerned.
The undertakings
[31] Counsel accepted the Court had jurisdiction to impose conditions if any application for access pursuant to r 3.13 was granted. Indeed, that is apparent from the rule itself and, in particular, the provisions of r 3.13(7).
[32] Although not accepting the appropriateness of the making of an order granting access in this case, but for one area, counsel were agreed on the content of a proposed undertaking.
[33] The form of the undertaking proposed by the applicant is as follows:
I, hereby undertake that
1.Except to the extent that such information is within the public domain, other than through breach of this or a similar confidentiality undertaking by me or any of the other people listed in Schedule A, I will keep the Statement of Claim filed in CIV-2013-404-1899
(“Proceeding”), its existence and all information contained within
it, including the identity of the parties, confidential and will not disclose or discuss the Statement of Claim or any of its contents, except where such disclosure or discussion:
9 Schenker AG v Commerce Commission, above n 1, at [30].
10 Above n 6.
(a) Is with Opus International Consultant’s Limited’s (“Opus”) legal advisers for the purposes of preparing for and defending CIV-2012-404-415; or
(b) Is with other people who have provided a similar confidentiality undertaking in respect of the Statement of Clam (including those listed in Schedule A) for the purposes of preparing for and defending CIV-2012-404-415; or
(c) Has previously been agreed with the parties to the
Proceeding; or
(d) Is otherwise directed by the Court or required by any law, rule or regulation.
2.I will keep secure any copies of the Statement of Claim that are provided to me, and will only make further copies of the Statement of Claim as are required for the purposes of preparing for and defending CIV-2012-404-415.
3.The obligations set out in this undertaking may be varied: (a) By agreement with the parties to the Proceeding; or
(b) As may be directed by the Court or required by any law, rule or regulation.
[34] The applicant proposes that:
The following persons are authorised to discuss and disclose the Statement of Claim and the information contained within it to the other people listed in this Schedule to the extent that it is necessary to do so for the purposes of Opus preparing for and defending CIV-2012-404-415:
(a) Alison Ferguson, of Wilson Harle (b) Guy Tompkins, of Wilson Harle (c) Daniel McLellan QC
(d) Alison Swan, General Counsel of Opus
(e) Dallas Bates, Service Excellence Leader for the Architecture
Division of Opus;
(f) Any administrative support staff employed by Wilson Harle, Daniel McLellan QC and Opus, and to whom disclosure is reasonably necessary to enable Opus and its legal advisers to prepare for and defend CIV-2012-404-415; and
(g) Any other person which the parties to the Proceeding agree that disclosure may be made, and who have provided a similar confidentiality undertaking.
[35] The defendants submit that in the event that the Court is minded to grant access, the Court should add to the undertaking additional words following clause 1 as I have set in [33] as follows:
Provided that if I consider that I am required by law to make any disclosure or justified in making any disclosure by reason of the information being in the public domain in terms of clause 1 of this Undertaking, then before disclosing that information, I will give the parties in CIV-2013-404-1899:
(e) notice of my intention to disclose; and
(f) a reasonable opportunity to comment on whether that information should be disclosed, and if so, on what terms, or to apply to the Court for emergency relief.
[36] The applicant submits that the addition to the undertaking is unnecessary for four reasons:
(a) The obligations of confidentiality are only necessary and justifiable for so long as the information remains confidential;
(b)All but one of the proposed givers of the undertakings are lawyers, who can be expected to take seriously the undertakings. The remaining person will have the benefit of legal advice;
(c) There would be no utility in requiring prior notice and agreement to release from the obligations once the information has become public because there would be no reasonable basis to restrict disclosure of public information; and
(d)Given the number of parties to the James Hardie proceeding, it would be unnecessarily burdensome to require agreement to release once the information becomes public.
[37] Whilst there is some force in the applicant’s objections to the additional words to be placed in the undertaking, I note that the additional words will not affect the applicant’s purpose in any way of obtaining access to the statement of claim. A cautious approach is justified in the circumstances and as there is no real detriment to the applicant obtaining information which is the foundation for its application, I
consider that it is appropriate that the additional words be included in the undertaking.
Orders
[38] I order that Opus be granted access to the current statement of claim in the James Hardie proceeding on the basis that access is restricted to the persons referred to in [34]. Access is conditional on such persons completing an undertaking in the form referred to in [33] and with the additional words referred to in [35].
Costs
[39] I reserve costs. If counsel cannot agree, memoranda in support, opposition and reply shall be filed and served at five working day intervals.
JA Faire
Associate Judge
Solicitors: Meredith Connell, Auckland Chapman Tripp, Auckland Bell Gully, Auckland
MinterEllisonRuddWatts, Auckland
Wilson Harle, Auckland
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