Rascals International Limited v Taylor

[2025] NZHC 2471

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1041

[2025] NZHC 2471

BETWEEN

RASCALS INTERNATIONAL LIMITED

First Plaintiff

ZURU INC
Second Plaintiff

AND

GRANT BRUCE BYRON TAYLOR

First Defendant

KEITH ROBERT TAYLOR
Second Defendant

JJK GROUP LIMITED

Third Defendant

TAONGA IP LIMITED

Fourth Defendant

Hearing:

On the papers

Counsel:

C T Walker KC/J W J Graham/T F Cleary/S Patel for the Plaintiffs S M Lowery/M Pitt for the Third Defendant

J C Suyker for the Fourth Defendant

Judgment:

28 August 2025

JUDGMENT OF GARDINER J

[Application for access to court documents]

This judgment was delivered by me on 28 August 2025 at 11.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors/Counsel:

C Walker KC, Barrister, Auckland Chapman Tripp, Auckland

Bankside Chambers, Auckland S Patel, Barrister, Auckland

RASCALS INTERNATIONAL LTD v TAYLOR [2025] NZHC 2471 [28 August 2025]

[1]                 Matt Nippert is a journalist for the New Zealand Herald. He has been observing the trial each day and reporting on it regularly. Mr Nippert has applied for access to the following documents to assist with a “wrap” of the trial after its conclusion:

(a)the most current statements of claim and defence;

(b)opening submissions from all counsel;

(c)briefs of evidence filed by Nick Mowbray, Keith Taylor, Grant Taylor, Kirk Penney, Jarrod Armitage, James Collie,  Chris  Quin  and  Angela Deehan;

(d)an  electronic  copy  or  transcript  of  the  phone   call   between   Nick Mowbray and Kirk Penney;

(e)a copy of the file note taken by Keith Taylor of the 5 March 2020 meeting; and

(f)closing submissions from all counsel.

Legal principles

[2]                 Access to court documents is governed by the Senior Courts (Access to Court Documents) Rules 2017.

[3]                 Broadly, the Rules provide for access to two kinds of documents. The first is access to the “formal court record”, to which the public have a general right of access. The second are any other documents, where the Court must exercise a discretion before the documents can be released.

[4]                 The documents sought do not fall within the category of documents constituting the “formal court record”, so Mr Nippert’s application falls for consideration under rr 11–13.

[5]                 A Judge may grant such a request with or without conditions, having considered:1

(a)the nature of the request;

(b)the reasons for the request; and

(c)each of the matters set out in r 12 that are relevant to the request or any objection to the request.

[6]The matters for consideration under r 12 are:

(a)the orderly and fair administration of justice:

(b)…

(c)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:

(d)the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person:

(e)the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions):

(f)the freedom to seek, receive, and impart information:

(g)…

(h)any other matter that the Judge thinks appropriate.

[7]                 The approach to balancing the r 12 considerations is set out in r 13, which makes a distinction as to whether the request is made before, during or after any substantive hearing. Under r 13(b), during the substantive hearing, open justice has greater weight than at other stages of the proceeding, and greater weight in relation to documents relied on in the hearing, than other documents. The Court of Appeal has stated:2

1      Senior Courts (Access to Court Documents) Rules 2017, r 12.

2      Greymouth Petroleum Holdings Ltd v Empresa Nacional Del Petróleo [2017] NZCA 490, [2017] NZAR 1617 at [25].

When a Court is engaged in hearing a dispute its workings, including documents referred to or relied on, should be open to full scrutiny by all members of the public, unless there are particular and strong reasons to the contrary. The public should be able to follow and understand the hearing process.

Analysis

[8]                 The application is largely unopposed, although counsel notes that Kirk Penney and Chris Quin did not provide briefs of evidence. Counsel for the plaintiffs suggests that where there are ‘confidential’ and ‘non-confidential’ version of briefs of evidence, the ‘non-confidential’ versions are provided. Counsel for the plaintiffs objects to provision of the audio recording of the phone call between Nick Mowbray and    Kirk Penney.

[9]                   Mr Nippert’s request is made in the context of a substantive hearing currently being held. At this stage, the value of open justice has greater weight than at other stages of the proceeding. There is public interest in this proceeding, involving a commercial dispute between two well-known New Zealand brands in New Zealand’s supermarket duopoly. It is important that Mr Nippert is able to produce a fair and accurate report of the proceeding.

[10]             Accordingly, I am satisfied that Mr Nippert should be granted access to the documents requested, with the following qualifications.

[11]             Mr Penney did not provide a written brief of evidence. Instead, his evidence-in-chief was led orally. Therefore, Mr Nippert should have access to the Notes of Evidence of Mr Penney’s evidence-in chief.

[12]             Mr Nippert also requested Mr Quin’s brief of evidence. However, he similarly refused to prepare one and ultimately, he was not called at trial.

[13]             Mr Nippert will have access to the non-confidential versions of the briefs of evidence. This reflects non-publication orders I made at the outset of the trial in relation to the specific confidential information Grant Taylor is alleged to have

disclosed to JJK Group Ltd.3 I note that in any event Mr Nippert has been careful to observe these confidentiality orders in his reporting to date.

[14]             In terms of the audio recording of the phone call between Nick Mowbray and Kirk Penney, the correct balance between open justice and the privacy interests of the parties is struck by provision of the transcript of the phone call, rather than access to the audio recording itself. The privacy interest engaged here is that Mr Penney was not aware he was being recorded. While this does not disqualify the media from being able to report on the phone call, particularly when Mr Penney was able to respond to it in his evidence, it does mean there is sensitivity around the recording such that it is more appropriate to grant access to the transcript.

[15]             In terms of the briefs of evidence, evidence of a witness in a brief of evidence is supplemented and sometimes altered or retracted by further evidence-in-chief and under cross-examination and re-examination. To be fair and balanced, Mr Nippert should take into account cross-examination and re-examination as reflected in the Notes of Evidence on a particular issue, rather than relying only on briefs of evidence. Accordingly, I direct the Registry to make the Notes of Evidence concerning the cross-examination and re-examination of Nick Mowbray, Keith Taylor, Grant Taylor, Jarrod Armitage, James  Collie,  Kirk  Penney,  and  Angela  Deehan  available  to Mr Nippert. Before doing so, any commercially sensitive or private information subject to existing non-publication orders should be redacted. Counsel will need to indicate to the Registrar any information of this nature that should be redacted.4 This is to be done within three days of the release of this judgment.

Result

[16]Accordingly, Mr Nippert is granted access to:

(a)the latest statement of claim and statement of defence, including the counterclaim;

3      Rascals International Ltd v Taylor HC Auckland CIV-2021-404-1041, 4 August 2025 (Minute of Gardiner J).

4      This is not an invitation to seek redactions beyond the terms of the non-publication orders that I have already made during the trial.

(b)the parties’ opening submissions;

(c)the  ‘non-confidential’  briefs  of  evidence  of  Nick   Mowbray,  Keith Taylor, Grant Taylor, Jarrod Armitage, James Collie and Angela Deehan;

(d)the Notes of Evidence of Kirk Penney’s evidence-in-chief;

(e)the Notes of Evidence of the cross-examination and re-examination of Nick  Mowbray,  Keith  Taylor,  Grant  Taylor, Jarrod  Armitage, Kirk Penney, James Collie and Angela Deehan, except for redactions made for commercial confidentiality or privacy;

(f)a copy of the transcript of the recording between Nick Mowbray and Kirk Penney;

(g)a copy of the file note made by Keith Taylor in relation to the 5 March 2020 meeting; and

(h)the parties’ closing submissions, once they have been filed.

Gardiner J