Scott v ANZ Bank New Zealand Limited

[2020] NZHC 3497

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2019-485-376

[2020] NZHC 3497

BETWEEN

MARY ELIZABETH SCOTT

First Representative Plaintiff

JOHN ROBERT DOUGLASS
Second Representative Plaintiff

GRAY STRATTON THOMPSON
Third Representative Plaintiff

AND

ANZ BANK NEW ZEALAND LIMITED

Defendant

On the papers
Judgment:	22 December 2020

JUDGMENT OF MALLON J

(Access to court documents)

[1]    Reweti Kohere from the National Business Review (NBR) applies for access to the pleadings, interlocutory applications, notices of opposition, supporting affidavits, memoranda of counsel, minutes and judgments on the Court file. The application is made to assist the NBR to better understand the parties’ positions, to fairly and accurately report on the proceedings, and to prepare opposition to non- publication orders and suppression orders if necessary.

[2]    The judgments and minutes of the Court are part of the formal record. There is no objection to their release. I confirm that they be may be released. The question is whether access should be granted to the remainder of the items to which access is sought.

SCOTT v ANZ BANK NEW ZEALAND LIMITED [2020] NZHC 3497 [22 December 2020]

[3]    An earlier application for a copy of the statement was claim was made by another journalist. This was declined by the High Court (Churchman J) who said:1

[15]      I accept that given the untested and damaging nature of the allegations against the defendant, it is appropriate that access to the pleadings not be granted, at least until after the close of pleadings date.

Conclusion

[16]      For these reasons, the application is declined. It may be renewed after the close of pleadings date. At that point, the public interest and open justice may well require that the pleadings, or at least redacted versions of them, be disclosed.

[4]    The defendant (ANZ) submits that the current application similarly should be declined. It says the allegations made against it are serious and untested and, at this stage of the proceeding, the orderly and fair administration of justice and ANZ’s legitimate confidentiality and privacy interests are entitled to weight. It notes that the plaintiffs have indicated an intention to amend the statement of claim following discovery. It further notes that the proceeding is yet to have its first case management conference following ANZ’s unsuccessful strike out application. That conference is scheduled for 4 February 2021. It also notes there is an interim suppression order that presently applies to an affidavit filed in opposition to the strike out application.

[5]    The representative plaintiffs have no objection to the application. However, they do accept that confidential aspects of the statement of claim and those aspects of the affidavit over which there are interim suppression orders would need to be redacted and not provided to NBR. The representative plaintiffs submit that the considerable public interest and the fact that dispute has already been aired in public through the hearing and determination of the strike out application favour granting the request.

[6]    In an earlier judgment in which I granted media applications relating to the strike out application I noted that open justice considerations in this proceeding are particularly compelling.2 That, and the fact that the proceeding is relatively complex, support granting access to the pleadings prior to the substantive hearing.

1      Scott v ANZ Bank New Zealand Limited [2019] NZHC 1908.

2      Scott v ANZ Bank New Zealand Limited [2020] NZHC 338

[7]    On the other hand, the representative plaintiffs accept that redactions would be necessary if access were to be granted at this stage. It is not clear whether, with redactions, NBR would have any more information about the case than that which is set out in some detail in my judgment on the strike out application.3 Moreover, the pleadings are at a preliminary stage and amendments are intended after discovery. There seems little point in having the parties confer on appropriate redactions to any court documents to which access is to be granted if the pleadings are soon to be amended. There is also the possibility of unfairness to ANZ if there is to be reporting on allegations which are likely to be amended and when the judgment on the strike out application already details what is presently alleged.

[8]    My present view is therefore that the orderly administration of justice continues to favour declining access to the pleadings and other documents, other than the formal court record, at least at this stage. My present view is that access should be granted once the pleadings have closed. I will review the matter at or after the upcoming conference. For now, NBR’s application is declined.

Mallon J

3      Scott v ANZ Bank New Zealand Limited [2020] NZHC 338.