Rau Paenga Limited v CPB Contractors Pty Limited

[2023] NZHC 3144

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-002246

[2023] NZHC 3144

UNDER

the Arbitration Act 1996 and Part 19 of the High Court Rules 2016

BETWEEN

RAU PAENGA LIMITED

Applicant

AND

CPB CONTRACTORS PTY LIMITED

Respondent

Hearing:	(on the papers)
Judgment:	9 November 2023

JUDGMENT OF VENNING J

Re: Application for access to Court documents

This judgment was delivered by me on 9 November 2023 at 10.00 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           MinterEllisonRuddWatts, Auckland

Lindsay & Francis, Auckland

Counsel:            A R Galbraith KC/J K Wilson, Auckland

S W P Foote KC/J K Goodall KC, Auckland Copy to:  Martin van Beynen, The Press/Stuff

RAU PAENGA LIMITED v CPB CONTRACTORS PTY LIMITED [2023] NZHC 3144 [9 November 2023]

[1]                  On 24 October 2023 the Court delivered a judgment on Rau Paenga Limited’s (RPL’s) application for interim relief against CPB Contractors Pty Limited (CPB).1 The application had been made under the Arbitration Act 1996 and r 7.53 of the High Court Rules 2016. The judgment was made publicly available and reports were made about it in the media.

[2]                  Martin van Beynen, an experienced reporter with The Press/Stuff has sought access to:

all submissions and memoranda from both parties in relation to the injunction application.

[3]                  RPL opposes the application for access to the Court documents. CPB abides the Court’s decision.

[4]Section 173(1) of the Senior Courts Act 2016 provides that:

Any person may have access to court information of a senior court to the extent provided by, and in accordance with, rules of court.

[5]                  The Senior Courts (Access to Court Documents) Rules 2017 (the Rules) apply to both criminal and civil proceedings and to all Senior Courts.

[6]                  Under the Rules every person has a right to access the formal court record relating to a civil proceeding,2 subject to a restriction in relation to certain specified Acts. The Arbitration Act 1996 is one of those Acts. The effect of the restriction is that Mr van Beynen may not access a document, a court file, or any judgment or order that relates to a proceeding brought under, in this case, the Arbitration Act, unless:

(a)the judge is satisfied that there is good reason for permitting access; or

(b)the person is a party to that proceeding.

[7]                  While there was good reason for the public distribution of the judgment given the public interest in the proceeding, the Court must now be satisfied there is good

1      Rau Paenga Limited v CPB contractors Pty Limited [2023] NZHC 2974.

2      Senior Courts (Access to Court Documents) Rules 2017, r 8.

reason for permitting access to the Court file more broadly as sought by Mr van Beynen.

[8]                  Mr van Beynen’s application for access to the further documents is brought under r 11.

[9]                  In determining the request for access under r 11 the Court must consider the nature of and the reasons given for the request and then take into account the matters set out in s 12. As relevant in this case those matters are:

(a)the orderly and fair administration of justice:

…

(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)whether a document to which the request relates is subject to any restriction under rule 7:

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

[10]              There is no hierarchy between the r 12 factors,3 however the principle of open justice is fundamental to the common law system of civil and criminal justice.

[11]              Rule 13 provides that in determining the request for access the Court must have regard to the following considerations:

(a)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:

(b)during the substantive hearing, open justice has—

3      Berry v Crimson Consulting Limited [2018] NZCA 460.

(i)greater weight than at other stages of the proceeding; and

(ii)greater weight in relation to documents relied on in the hearing than other documents:

(c)after the substantive hearing,—

(i)open justice has greater weight in relation to documents that have been relied on in a determination than other documents; but

(ii)the protection of confidentiality and privacy interests has greater weight than would be the case during the substantive hearing.

[12]              In regard to the relevant considerations under r 13, I consider r 13(a) applies to the present circumstances by analogy. Any substantive hearing between the parties will be in the course of an arbitration in which the arbitrator will rule upon the contractual disputes between the parties. The purpose of the interim orders was to preserve the position pending that arbitral process. Application of that consideration under r 13(a) supports limiting access to the Court file more generally.

[13]              Returning to r 12 and the considerations under that rule Mr van Beynen’s reasons for seeking access to the submissions and memoranda are:

The case is about Christchurch’s Metro sports centre which has been plagued by delays and budget blowouts. The project is funded by the Crown and local councils. The public interest in receiving as much information about this project is self evident.

Orderly and fair administration

[14]              Arbitration is recognised as an important alternative means of dispute resolution. It is bound by its own Act. The confidential nature of arbitration is an important feature of the arbitration process. It should not be undermined.

Commercial sensitivity/confidentiality

[15]              Also relevant in the present case is the right of the parties to bring civil proceedings without the disclosure of more information about commercially sensitive matters than is necessary to satisfy that principle. In the construction contract the parties have defined certain information as confidential. RPL was effectively forced to bring the proceedings before the Court as there was no arbitration in process. It was

required to disclose commercially sensitive and confidential material in order to support its application.

[16]              There is an extensive volume of material before the Court which was filed for the purposes of the application which covers a number of detailed and confidential matters.

Open justice/freedom to seek, receive and impart information

[17]              I agree with the submission for RPL that in this case the judgment itself provides sufficient information for the public to meet the principle of open justice and the freedom to seek, receive and impart information.

Other considerations

[18]              Relevantly, r 12(g) requires consideration of whether the documents are subject to any restriction under r 7. In this case they are.

Summary

[19]              Weighing the above considerations, the balance comes down against the application to access further material from the Court file. The proper public interest (which Mr van Beynen represents) in the delays and increased budget costs of completing the sports facility have been met by the information contained in the judgment and by the articles published about it.

Result

[20]The application is declined.

Venning J