NZME Limited v Nine Entertainment Co Holdings Limited
[2020] NZHC 1567
•3 July 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-657
[2020] NZHC 1567
BETWEEN NZME LIMITED
Plaintiff
AND
NINE ENTERTAINMENT CO. HOLDINGS LIMITED
Defendant
Hearing: 12 June 2020 Counsel:
J E Hodder QC and J W J Graham for plaintiff
J Dixon QC, K Massey and C Butters for defendant M O’Brien QC for Stuff Limited (interested party)
Judgment:
3 July 2020
JUDGMENT OF KATZ J
[Access to court records]
This judgment was delivered by me on 3 July 2020 at 3:30 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Chapman Tripp, Auckland
Russell McVeagh, Auckland
Counsel: J E Hodder QC, Barrister, Auckland
J Dixon QC, Shortland Chambers, Auckland M O’Brien QC, Barrister, Auckland
Copy to: V Young, BusinessDesk
NZME LIMITED v NINE ENTERTAINMENT CO. HOLDINGS LIMITED [2020] NZHC 1567 [3 July 2020]
Introduction
[1] In this proceeding NZME Limited alleges that Nine Entertainment Co. Holdings Limited has unlawfully repudiated an exclusivity agreement which required that, for a limited period, Nine (then the owner of Stuff Limited) would not solicit or engage in negotiations with any other party for the sale or acquisition of Stuff.
[2] NZME alleges that, in breach of the agreement, Nine entered into negotiations for the sale of Stuff with a third party. Nine, on the other hand, claims that the exclusivity agreement had come to an end at the time it embarked on negotiations with the third party.
[3] On 18 May 2020, I declined an application by NZME for an injunction to enforce the exclusivity agreement.1 The substantive proceeding remains on foot, although no timetable orders have yet been made to progress it.
[4] BusinessDesk has filed an application seeking access to the court file. The application is opposed by Nine and also Stuff (as an interested party). NZME formally abides the decision of the Court but made submissions in favour of granting access. BusinessDesk submitted a letter in support of its application. Victoria Young of BusinessDesk also made a brief oral submission at the hearing.
Access to Court Documents
Legal principles
[5] The Senior Courts (Access to Court Documents) Rules 2017 apply. Every person has a general right to access the “formal court record” relating to a civil proceeding.2 This is subject, however, to the court’s inherent power to control its own proceedings, including the power of a Judge to direct that judgments, orders, documents or files of any kind not be accessed without the permission of the Judge.3
1 NZME Ltd v Nine Entertainment Co Holdings Ltd [2020] NZHC 1029.
2 Rule 8. The formal court record includes judgments, orders, or minutes of the court.
3 Rule 5.
[6] A request may also be made to access other documents on the file (not comprised in the formal court record) including pleadings, applications and affidavits. The matters to be considered in determining such a request are set out in r 12. They include the orderly and fair administration of justice (12(a)), the right to bring and defend a civil proceeding without disclosure of any more commercially sensitive information than is necessary to satisfy the principle of open justice (12(c)), the protection of confidentiality (12(d)), the principle of open justice (12(e)), the freedom to seek and impart information (12(f)) and any other matter the judge thinks appropriate (12(h)).
[7] When considering requests for access to the court file, open justice is an important principle, but not the paramount principle. Rather, the court must undertake a balancing exercise of all relevant factors.4
[8] Rule 13 requires the court to consider the stage of the proceeding at which the request for access is made, namely whether it is before the substantive hearing, during the substantive hearing, or after the substantive hearing. Rule 13 recognises that, before the substantive hearing, the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited. During the substantive hearing, open justice carries greater weight than at other stages of the proceeding. After the substantive hearing the protection of confidentiality and privacy interests is again afforded increased weight, save in relation to documents relied on by the court in reaching its decision.
[9] In Schenker AG v Commerce Commission access to the court file was denied on the basis that there was no good reason for access and it would undermine the confidential basis on which commercially sensitive and confidential material had been produced to the court. Access to the court file was sought by a third party (Schenker AG) which considered it might have suffered loss as a result of conduct targeted in the proceedings in question.
4 Crimson Consulting Ltd v Berry [2018] NZCA 460; Greymouth Petroleum Holdings Ltd v Empresa Nacional del Petróleo [2017] NZCA 490; Schenker AG v Commerce Commission [2013] NZCA 114.
[10] More recently, in Crimson Consulting v Berry, the High Court granted the media access to the pleadings, in redacted form, after the proceeding had settled. Access to evidence and memoranda was declined. That decision was upheld on appeal.
Should BusinessDesk be granted access to the Court file?
[11] This case is at the pre-trial stage. Mr O’Brien QC (for Stuff) submitted that that is an important factor because contested information affecting a third party (Stuff) has not been tested or put in context. If the matter proceeds, Mr O’Brien advised that Stuff would seek leave to join the proceeding, in which event it would be able to update information, mitigate misapprehension and generally protect its interests.
[12] The key document on file is the injunction judgment of 18 May 2020. A redacted copy of that judgment has already been released publicly. I have directed, in a separate judgment of today’s date, that the redactions are to remain in force for a further six months. The injunction judgment will be released publicly, in unredacted form, on 3 December 2020.
[13] The remaining documents comprising the formal court record are various court minutes. The minutes of 15 May 2020, 19 May 2020, 21 May 2020, 2 June 2020, 4 June 2020, and 12 June 2020 do not refer to the substance of any confidential information. The principle of open justice therefore favours the release of those documents to BusinessDesk. My minute of 20 May 2020 is in a different category, however, as it refers to the substance of the confidential information that has been redacted from the injunction judgment. Release of that minute will therefore also be deferred until 3 December 2020, when the confidentiality restrictions will be lifted.
[14] I turn now to consider the other documents on the court file, which do not form part of the formal court record.
[15] First, there is no opposition to BusinessDesk being provided with a copy of the statement of claim. NZME’s interlocutory application for an injunction covers much of the same ground. Release of such documents in the absence of a statement of defence or notice of opposition could potentially provide a somewhat one-sided
picture. I note, however, that a representative of BusinessDesk (and other media organisations) attended the injunction hearing and are therefore aware of Nine’s position on the key issues raised in the pleading and application. I have also referred to Nine’s position (fairly briefly) in the injunction judgment. Overall, I am satisfied that the principle of open justice favours release of these documents.
[16] Different considerations arise in relation to the affidavits that have been filed. These do not form part of the formal court record (as defined in the Rules). As I have noted above, factors the court must consider in relation to such documents include the protection of confidentiality and the right to bring and defend a civil proceeding without disclosure of any more commercially sensitive information than is necessary to satisfy the principle of open justice.
[17] Much of the content of the affidavits is confidential and commercially sensitive. They refer, extensively, to significant information provided by Nine to NZME under a strict confidentiality agreement and regime agreed in or about September 2019. In particular, NZME and Nine agreed to maintain confidentiality of all information provided during the due diligence and negotiation process for a possible sale of Stuff. Stuff, as well as Nine, was an intended beneficiary of that confidentiality regime.
[18] It is also of note that we are currently in the pre-trial phase of this proceeding. The affidavits have not been tested in Court, and Stuff (as a non-party) has not had an opportunity to respond to them. Although some of the information in the affidavits may not ultimately be relevant to NZME’s substantive claims, significant portions of the affidavits will be.
[19] NZME is a competitor of Stuff. Some of the information included in the affidavits is competitor sensitive. Publication of such information would likely be harmful to Stuff and potentially beneficial to NZME as its competitor. Some of the competitor sensitive information was also provided to the Commerce Commission by Nine, and later NZME, on the same basis of strict confidentiality. It is subject to confidentiality orders in that jurisdiction. I also note that commercially sensitive information was redacted from public versions of the High Court and Court of Appeal
judgments delivered in the context of the previous merger application between NZME and Stuff, in 2016.5
[20] Not all the content of the affidavits is confidential or commercially sensitive, however. I have therefore considered whether some affidavits, or some portions of the affidavits, could be released. I have concluded that the interests of fair and balanced reporting would not be advanced by the release of selected portions of evidence, taken out of its full context. Such an approach would be potentially misleading. The same applies to the memoranda of counsel on file, many of which refer to confidential information.
[21] The protection of confidential and commercially sensitive information weighs heavily against granting the media access to the affidavits filed in this case. Such concerns must be balanced, however, against the principle of open justice. That balancing exercise, in my view, favours the protection of confidentiality. The principle of open justice is adequately served by public release of the judgment, which identifies the issues and explains the reasons for declining to grant an injunction. To the extent that information contained in the affidavits was material to my decision, it is referred to in the judgment. Access to the underlying affidavits (or memoranda of counsel) is not necessary to enable the public to understand the reasoning process that was adopted. The injunction judgment stands alone. It is currently publicly available, in redacted form. The redactions are fairly modest. The full judgment will be made publicly available on 3 December 2020.
Result
[22] The application is granted to the following extent. Copies of the following documents are to be provided to BusinessDesk:
(a)the statement of claim;
(b)NZME’s interlocutory application for an interim injunction, dated 13 May 2020;
5 NZME Ltd v Commerce Commission [2017] NZHC 3186, at, for example. [93]; NZME Ltd v Commerce Commission [2018] NZCA 389 at [130]-[131] and fn 150.
(c)the minutes of 15 May 2020, 19 May 2020, 21 May 2020, 2 June 2020, 4 June 2020, and 12 June 2020.
[23] BusinessDesk was, obviously, entitled to make this application pursuant to the Rules and has acted appropriately throughout. It has not, however, incurred any legal costs. I anticipate that there will be no costs issues in relation to BusinessDesk. If there are any costs issues between the parties and/or Stuff, leave is reserved to file memoranda. Any party seeking costs is to file a memorandum by 17 July 2020. Any responses are to be filed by 24 July 2020.
Katz J
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