Russell McVeagh
[2023] NZHC 3806
•20 December 2023
RIGHTS OF ACCESS GRANTED MAY NOT BE EXERCISED UNTIL 10 AM ON 8 JANUARY 2024 IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-2421
[2023] NZHC 3806
BETWEEN RUSSELL MCVEAGH
Plaintiff
AND
NZ FUTURE FOREST PRODUCTS LTD
Defendant
CIV-2022-404-1284 BETWEEN
ROBT JONES 151 LTD
Judgment Creditor
AND
DAVID RYAN HENRY
Judgment Debtor
Hearing: 12 October 2023 Appearances:
K M Massey for Russell McVeagh (excused) O K Thomas for David Henry
Ms V Young (applicant)
Judgment:
20 December 2023
JUDGMENT OF BREWER J
[Application for access to court documents]
This judgment was delivered by me on 20 December 2023 at 10 am pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Russell McVeagh (Auckland) for Russell McVeagh Shanahans Law Ltd (Auckland) for David Henry Copy to Victoria Young, BusinessDesk
RUSSELL MCVEAGH v NZ FUTURE FOREST PRODUCTS LTD [2023] NZHC 3806 [20 December 2023]
Introduction
[1]In his Minute of 28 July 2023, van Bohemen J recorded:
[1] Victoria Young of Business Desk has applied, in accordance with the Senior Courts (Access to Court Documents) Rules 2017 (the Rules), for access to documents on two High Court files.
[2]In the case of Russell McVeagh v NZ Future Forest Products Ltd
HC Auckland CIV-2021-404-2421, Ms Young has applied for access to: All documents on the file including but not limited to
Application to liquidate Supporting material
Any minutes, judgments or directions on the file.
[3] Ms Young says she seeks access to these documents in the public interest and requires the information as part of a feature on Mr David Henry and NZ Future Forest Products.
[4] In the case of Robert Jones 151 Ltd v David Ryan Henry HC Auckland CIV-2022-404-1284, Ms Young has applied for access to:
1.Bankruptcy application and supporting evidence
2.Opposition to bankruptcy and supporting evidence
Minutes judgments and directions which make up the formal record, which the public have an automatic right to per [the Rules] 8(1).
[5] Ms Young says she seeks access to these documents as the matter is in the public interest, she is to write an article about Mr David Henry’s debt trail, and liquidations of firms directed by Mr Henry have already been written and there is a public interest because Mr Henry has been trying to raise money, including from government agencies in the past.
[2]This Judgment determines Ms Young’s applications.
Ms Young’s applications
[3] The only opposition is from Mr David Henry who was represented by Ms Thomas. Ms Young appeared in person.
[4] I will first refer to the legal principles applicable as they are the context for the parties’ contentions.
[5]I adopt gratefully Cull J’s recent summary of the principles:1
[5] The Senior Courts (Access to Court Documents) Rules 2017 (the Rules) guide the Court’s discretion on whether to grant a third party access to court documents. Every person has a general right of access to the formal Court record in the proceeding, defined in r 4 of the Rules as including judgments, orders and minutes.2 A person may exercise such general rights by asking the Registrar, orally, for access to the documents. The formal Court record does not include pleadings, submissions or affidavits.
…
[7] In determining a request for access under r 11, the Judge “must consider the nature of, and the reasons for, the request” and take into account each of the following matters that are relevant:3
(a)the orderly and fair administration of justice:
(b)the right of a defendant in a criminal proceeding to a fair trial:
(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.
[8] The above factors are not exhaustive and nor are they hierarchical. No one factor, including open justice, has primacy: a balancing exercise of all the relevant factors is required and the weight to be given to the various factors is a matter of discretion and evaluation.4
[9] While there is no presumption in favour of disclosure, the effect of r 13(b) is to accord open justice a higher priority at the operative date of the
1 The New Zealand Animal Law Association v The Attorney-General [2020] NZHC 2376.
2 Senior Courts (Access to Court Documents) Rules 2017, r 8(1).
3 Rule 12.
4 Schenker AG v Commerce Commission [2013] NZCA 114, (2013) 22 PRNZ 286, relied on in
Crimson Consulting Ltd v Berry [2018] NZCA 460, [2019] NZAR 30 at [32].
application.5 In the context of the Rules, that means that access to information covered by the Rules is to be given greater weight than at other stages of the proceedings, and particularly in relation to documents relied on in the hearing.6 Rule 13 requires the Judge to have regard to this when balancing the r 12 matters.
[6] Mr Henry does not object to Ms Young having access to the formal Court record. His objection (particularly) is to her having access to the affidavits which he filed in both proceedings.
Mr Henry’s submissions
[7] Ms Thomas points out that NZ Future Forest Products Ltd (NZFF) has been liquidated. Mr Henry has been declared bankrupt. Therefore, she submits, the principle of open justice does not carry as much weight as it might have done if the application had been made while the two proceedings were undetermined. Rule 13(c) provides:
[A] fter 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.
[8] Ms Thomas submits that the principle of open justice is to ensure fair and accurate reporting of a case. These two cases have been determined. The Judgments and the rest of the formal court record are available to inform the public of what happened, and why. Mr Henry’s right to confidentiality and privacy should be given greater weight.
[9] Ms Thomas refers to an order by Venning J in a Minute of 8 December 2022 (in the CIV-2022-404-1284 case, the bankruptcy case):
[18] I accept, however, that publication of the financial details in his affidavit of 5 December 2022 could affect the financial transactions he refers to in that affidavit. For those reasons I make a limited suppression order. While I decline the application for suppression in relation to the identification of Mr Henry as the judgment debtor, I make an order suppressing the details
5 See paragraph (a)(ii) of the definition of “substantive hearing” in r 4.
6 Rule 13.
of the evidence of the financial matters set out in his affidavit of 5 December 2022.
[10] The Judge did not suppress publication of the other information on the file, particularly the creditor’s application and affidavit in support.
[11] Ms Thomas also submits that Ms Young has an ulterior purpose arising out of allegations that Mr Henry is somehow connected to the NZ First political party. I note that attached to Ms Young’s application are copies of two previous articles. One relates to NZFF, is dated 4 December 2019, and the headline reads, “NZ First – linked company applied for $15m govt loan, pledges transparency”. Mr David Henry is named in the article. The second, dated 27 April 2021 and written by Ms Young, has the headline, “David Henry firms in court as Bob Jones suit emerges”. The first paragraph of the article is:
Property magnate Bob Jones has come out of the woodwork as another court opponent for David Henry, who is already fighting liquidation proceedings brought by an ad agency against his company, NZ Future Forest Products (NZFFP).
[12] Ms Thomas submits that because the two cases have ended, and because of media interest which goes beyond the cases and focuses on Mr Henry for wider reasons:
The privacy interests of [Mr Henry] is therefore a paramount consideration and, in this case, outweighs the principle of open justice.
Ms Young’s submissions
[13] Ms Young submits that Mr Henry is a businessman who, in a relatively short period, raised large sums of money, was part of a company which applied to the government for money, and then he and NZFF defaulted causing considerable loss. Ms Young submits there is a public interest, including for people who might in future have business dealings with Mr Henry, in having the knowledge that a properly researched article could provide.
[14] At my suggestion, and on a confidential basis, I allowed Ms Young to read the three affidavits by Mr Henry which are at the heart of his objection. My purpose was to enable Ms Young to tell me whether their contents actually fall within the ambit of
her necessarily general submissions. Ms Young told me that with the exception of a personal statement, they do.
[15] Ms Young denied that she has any ulterior motive relating to the status of NZ First as a political party. She pointed out that she had agreed to extend the time for Ms Thomas to make submissions to a date just before the then-pending election, which means it would not have been possible to publish anything which might have affected NZ First’s political opportunity.
Discussion
[16]I refer first to the NZFF liquidation file.
[17]The order putting NZFF into liquidation was sealed on 19 July 2022.
[18] There are affidavits on the file in support of the Notice of Proceeding for putting NZFF into liquidation. There are three affidavits of Mr Henry in support of an application to restrain advertising (which ultimately did not succeed). In my view, there is nothing in those affidavits which is particularly private to Mr Henry. He speaks of commercial opportunities and commercial fears, mostly in general terms.
[19] The situation is similar for the bankruptcy file. The creditor was a commercial creditor. There was nothing of a personal or private nature in the creation of the debt or in the proceedings taken to enforce it.
[20] Mr Henry filed an affidavit dated 5 December 2022 opposing the bankruptcy application. This, as is usual, sets out his position at the time in relation to debts, assets and income. I accept that the detail in this affidavit raises privacy issues.
[21] Mr Henry, on 6 December 2022, filed a second affidavit in support of an application to suppress his name and the contents of his affidavit of 5 December 2022. It is general in nature and does not give the details contained in the earlier affidavit.
[22] On 8 December 2022, Venning J declined to suppress Mr Henry’s name. The Judge’s decision to suppress the financial details in Mr Henry’s affidavit of
5 December 2022 was a limited one on the basis that publication could affect the transactions referred to. There is no suggestion those transactions are continuing.
[23] In my view, the current application for access to the files comes down to a balancing of the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, Court hearings and decisions) and Mr Henry’s right to defend civil proceedings without the disclosure of any more information about his private life, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice.
[24] Because the substantive hearings have concluded, open justice has greater weight in relation to documents that have been relied on in a determination than other documents. However, the protection of confidentiality and Mr Henry’s privacy interests has greater weight than would be the case during the substantive hearing.
[25] The principle of open justice is not a makeweight principle. It is one of the cornerstones of our democracy. Disputes of every kind come to the Courts. They include disputes between individuals and the State, disputes between the weak and the powerful, disputes between those with political connections and those without – to name a few. It is important that responsible news media are able to inform the public of what is happening in the Courts.
[26] I disagree with Ms Thomas that the principle of open justice as referred to in the Rules is solely for the purpose of ensuring fair and accurate reporting of a case. Certainly, the principle of open justice includes the encouragement of fair and accurate reporting (as is stated in r 12(e)), but that is not the sole focus of the principle or the Rules. For example, the principle of open justice includes encouraging fair and accurate comment on Court decisions. Often, it is comment on a Court decision which puts it in perspective and calls attention to a wider context. That is really the basis for Ms Young’s application.
[27] However, the matters to be considered set out in r 12 are not hierarchical. Each, including the principle of open justice, must be given weight according to the
circumstances. And, the approach to balancing matters considered set out in r 13 must be taken into account.
[28] I consider that the NZFF liquidation file does not really engage Mr Henry’s right to have his confidential and privacy interests protected. On the other hand, the principle of open justice, and the encouragement of accurate reporting and comment on decisions of the Courts, is engaged. NZFF had a brief but turbulent history and Mr Henry’s affidavits are central to understanding it.
[29] I view the bankruptcy file differently. Mr Henry’s affidavit of 5 December 2022 contains personal financial details of significance to Mr Henry. But, now that Mr Henry has been adjudicated bankrupt those details can be of little forensic use to creditors. It might be that the contents of the affidavit would be relevant to Ms Young’s proposed comment (and that was her reaction when she viewed the affidavit in Court). Nevertheless, having regard to r 13, and in relation to that affidavit alone, I find the protection of Mr Henry’s privacy interests outweighs the principle of open justice.
Decision
[30] I grant Ms Young’s application in respect of access to CIV-2021-404-2421 (the NZFFP liquidation file).
[31] I grant Ms Young’s application, with one condition, for access to CIV-2022- 404-1284 (Mr Henry’s bankruptcy file). The condition is that Ms Young may not have access to Mr Henry’s affidavit dated 5 December 2022.
[32] Ms Thomas, courteously, asked me to delay by seven days the commencement of any right of access to the files if such should be my decision. Given the time of the year, the rights of access I have granted herein may not be exercised until 10 am on 8 January 2024.
Brewer J
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