Rani v Bhatti
[2019] NZHC 2975
•14 November 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2014-404-1769
[2019] NZHC 2975
BETWEEN SANTOSH RANI
Plaintiff
AND
MUHAMMAD ILYAS BHATTI
First Defendant
AND
SHIRLEY SHAO
Second Defendant
AND
TAHIR UMAR
Third Defendant
AND
DEO RAJAN
Fourth Defendant
AND
LYDIA RAJAN
Fifth Defendant
Continued over page ...
Hearing: On the papers Appearances:
C T Patterson, for Richa Choubey, seeking access Phillip Rice for Muhammad Bhatti
G Bilkey for Tahir Umar
K Lakshman for Santosh RaniJudgment:
14 November 2019
JUDGMENT OF ASSOCIATE JUDGE BELL
RANI v BHATTI [2019] NZHC 2975 [14 November 2019]
CIV-2014-404-2318 BETWEEN
DEO RAJAN and LYDIA RAJAN
CreditorsAND
SANTOSH RANI
Debtor
This judgment was delivered by me on 14 November 2019 at 3.30 pm.
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors:
C T Patterson, instructed by Hornbrook McDonald Richa Choubey, Non-party
Mr Phillip Rice, instructed by Mr Bharat Parshotam for First Defendant, Mr Bhatti Mr Bilky, Graham & Co, for Third Defendant
Mr K Lakshman, Lower Hutt Law Centre, for Ms Rani
Copy for: Karl Allen
[1] Richa Choubey, of Victoria Australia, applies under the Senior Courts (Access to Court Documents) Rules 2017 for access to all documents on these files. The Registrar has notified the parties of the application. There have been responses from all parties, except from Shirley Shao, the second defendant in CIV-2014-404-1769, and Mr and Mrs Rajan, the fourth and fifth defendants in CIV-2014-404-1769 and creditors in CIV-2014-404-2318, a bankruptcy matter.
[2] Santosh Rani was formerly married to Muhummad Bhatti. In the ‘1769’ proceeding, she claimed against her former husband and those to whom he had transferred certain properties, alleging that the dispositions were made to defeat her rights. In a minute of 25 September 2014, I held that her claims should properly be brought under s 44 of the Property (Relationships) Act 1976, not at common law. The case was to go to hearing in December 2015 but settled.
[3] The ‘2318’ bankruptcy matter arose from an order for costs against Ms Rani. She had caveated a property; and a bank as mortgagee had the caveat removed and obtained the costs order at the same time. It assigned the debt to Mr and Mrs Rajan. They issued a bankruptcy notice, which Ms Rani applied unsuccessfully to set aside. The court file has an adjudication application, but Ms Rani was not adjudged bankrupt. The matter appears to have settled.
[4] Mr Choubey’s request is to assist parallel litigation. Claiming information for parallel litigation may be a legitimate purpose in seeking access to Court documents.1 Mr Choubey’s interest is in Mr Muhammad Ilyas Bhatti. In another proceeding Mr Choubey is the plaintiff and Mr Bhatti is the first defendant. Counsel for Mr Choubey is interested in exploring how Mr Bhatti structured transactions in the 2014 proceedings to see if that may assist in his claim. He makes his request for access under rr 8 and 11 of the Senior Courts (Access to Court Documents) Rules 2017.
1 Greymouth Petroleum Holdings Limited v Empresa Nacional del Petroleo [2017] NZCA 490 at [36].
CIV-2014-404-2318
[5] Under r 8, every person has the right to access the formal court record relating to a civil proceeding. The formal court record includes “a judgment, an order, or a minute of the court, including any record of the reasons given by a Judge”.2 It also includes other documents that are unlikely to be of interest to Mr Choubey and his lawyers.
[6] On the face of it, Mr Choubey can have access to the minutes and decisions on the bankruptcy file. That includes Keane J’s decision on her application to set aside the bankruptcy notice.3 The public’s right of access under r 8 may, however, be restricted under r 6. One of those restrictions is a court order limiting or prohibiting access or publication.
[7] The minutes comprising the formal court record are routine and are unlikely to be of any interest or relevance to Mr Choubey. Keane J’s decision is already publicly available. No order has been made restricting access to it. I see no reason now to make any order restricting access to his decision. Mr Bhatti was not a party to the bankruptcy proceeding. In support of her application to set aside the bankruptcy notice, Ms Rani made allegations against Mr Bhatti, but as Keane J did not uphold them, his decision is unlikely to be of any assistance to Mr Choubey.
[8] The next question is whether I should allow access to other documents on the file under r 11. All the factors under r 12 must be considered. The r 12 factors are not listed in any order of hierarchy; any particular factor may have greater relevance and weight in a particular case. The factors of interest here are:
(a)the orderly and fair administration of justice;
(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;
2 Senior Courts (Access to Court Documents) Rules 2017, r 4.
3 Rajan v Rani [2015] NZHC 715.
(c)the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions); and
(d)the freedom to seek, receive and impart information.
[9] As the Court of Appeal noted in Greymouth Petroleum Holdings Limited v Empresa Nacional del Petroleo, under r 13 the balancing of matters has regard to the stage that a proceeding has reached.4 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 stage, open justice has greater weight. After the hearing open justice has greater weight in relation to documents that have been relied on in a determination, but the protection of confidentiality and privacy interests have greater weight than would be the case during the substantive hearing.
[10] Ordinarily there is a public interest in ensuring open justice in insolvency matters. The publicity that goes with insolvency proceedings often promotes the efficient disposal of those proceedings and allows the market to be better informed. The debtor’s privacy interest may accordingly have less weight, but Mr Bhatti was not the debtor in that proceeding. The proceeding was ultimately resolved, and Ms Rani was not adjudicated bankrupt. The matter was resolved more than four years ago.
[11] The factors which the Court of Appeal identified as counting against access, the lapse of time since settlement, the parties’ interests in putting a dispute behind them and moving on, and the limited relevance of the information to the party seeking access apply equally in this case. Admittedly Greymouth was major commercial litigation, whereas the bankruptcy matter was a minor debt collecting exercise. Nevertheless, this part of the Court’s decision is relevant:5
While open justice had to be given full weight during the hearing, and there were no restrictions on media access and access by any interested member of the public, the parties could reasonably have expected that the arguments and
4 Greymouth Petroleum Holdings Limited v Empresa Nacional del Petroleo [2017] NZCA 490 at [24] – [28].
5 At [26].
what was said and done during the hearing would become in due course forgotten. The parties will have moved on, and as time goes by the courts will be more reluctant to allow old and completed disputes to be stirred up and brought out of the darkness. The Court file is not a permanent library available to any party who wishes to read a document.
As the bankruptcy application never went to a full hearing, these considerations apply even more so in this case.
[12] In my judgment, these factors outweigh the interests of Mr Choubey in looking at the court file to see if there is something which might assist his proceeding. Accordingly, while access to formal court record is available, I decline access to any other documents on the file.
CIV-2014-404-1769
[13] This proceeding was a claim by Ms Rani against her husband and other people to whom he had transferred properties under s 44 of the Property (Relationships) Act. The proceeding is accordingly caught by r 7 of the Senior Courts Access to Court Documents Rules:
7 Restriction on access in proceedings under certain enactments
(1)A person may not access a document, a court file, or any judgment or order that relates to a proceeding brought under the enactments listed in subclause (2) unless –
(a)the Judge is satisfied that there is a good reason for permitting access; or
(b)the person is a party to that proceeding.
(2)The enactments are –
...
(p) Property (Relationships) Act 1967.
...
[14] I am not satisfied under r 7(1)(a) that there is good reason for permitting access. A common ground for barring access to court files dealing with relationship property proceedings is that the proceedings are private and often deal with confidential matters. That general ground applies here. In addition, the case never went to a
substantive hearing. Allegations made in the proceeding were not tested in a substantive hearing. The parties settled. The benefits of settlement include bringing a dispute to an end by resolving differences without a public hearing and allowing the parties to move on. Those benefits may be eroded by allowing third parties access to the court file. Mr Choubey’s wish to see if information on the court file could assist his case is not a strong enough factor to overcome the normal rule that there should not be access to the court file.
[15] Accordingly, I decline access to any documents on the file CIV-2014-404- 1769.
Outcome
[16] Mr Choubey has access to the formal court record in CIV-2014-404-2318, but not to other documents. He does not have access to any documents in CIV-2014-404- 1769.
……………………………….
Associate Judge R M Bell