Scott v ANZ Bank New Zealand Limited

[2020] NZHC 338

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 338

BETWEEN

MARY ELIZABETH SCOTT

First Representative Plaintiff

JOHN ROBERT DOUGLAS
Second Representative Plaintiff

GARY STRATTON THOMPSON
Third Representative Plaintiff

AND

ANZ BANK NEW ZEALAND LIMITED

Defendant

On the papers

Appearances:

J B M Smith QC and F J Cuncannon for Plaintiffs

N R Campbell QC, I Rosic and H E McQueen for Defendant

Judgment:

28 February 2020

JUDGMENT OF MALLON J

[1]                 The representative plaintiffs have brought civil proceedings against the defendant, with whom David Ross, Ross Asset Management Limited and related entities held bank accounts. The defendant denies the claim and has applied to strike it out. The strike out application is for hearing on 2 and 3 March 2020.

[2]The following media applications have been made:

(a)Mediaworks (film, photos, sound recording);

(b)TVNZ (film, photos, sound recording);

SCOTT v ANZ BANK NEW ZEALAND LIMITED [2020] NZHC 338 [28 February 2020]

(c)Goodas Film Productions (film, photos, recording); and

(d)RNZ (photos, film).

[3]                 The representative plaintiffs abide the Court’s decision on the media applications. The defendant opposes the applications.

[4]                 For the purposes of the High Court Rules 2016, and unless the context requires otherwise, rule 1.3 defines “hearing in chambers” as meaning:

… a hearing that takes place in circumstances in which the general public is not admitted, except with the leave of the Judge, and includes any conference held under the rules.

[5]                 Rule 7.34 provides that an “interlocutory application” for which a hearing is required “must be heard in chambers unless a Judge otherwise directs.”

[6]Rule 7.35 provides:

Particulars of a hearing in chambers of an interlocutory application or of the decision or both (including the reasons for the decision) may be published unless a Judge or Registrar, exercising jurisdiction in chambers, otherwise directs.

[7]                 Rule 1.3 provides that “an interlocutory application” means “an application made in accordance with rule 7.19 or 7.41” and “interlocutory order” is defined as including “an order striking out the whole or any part of a pleading”.

[8]                 The usual approach to applications to film, photograph or record interlocutory hearings is summarised in Smith v Claims Resolution Service Ltd:1

[6]        Interlocutory proceedings without more are generally heard in Chambers in circumstances not open to the general public except with the leave of the Judge. However, r 7.35 provides that the particulars of a hearing in Chambers of an interlocutory application and the decision, including reasons, may be published unless a Judge or Registrar directs otherwise. Generally, this is sufficient to meet the principles of open justice. As noted by Williams J in Sagapolu v Commonwealth Securities Ltd, the rules give an indication that the hearing of interlocutory applications should not be publicly broadcast unless there are good reasons for so doing.2 At the preliminary

1      Smith v Claims Resolution Service Ltd [2018] NZHC 3180.

2      Sagapolu v Comonwealth Securities Ltd (2002) 16 PRNZ 191 at [5].

stage, principles of privacy and confidentiality have greater weight than at a substantive hearing.

[7]        This view is also reflected by the approach taken to the granting of media access to Court documents under the Senior Courts (Access to Court Documents) Rules 2017. The Court of Appeal recently stated in that context:3

Prior to the hearing there is no guarantee the case will go to hearing at all. Therefore open justice has less weight. The parties are entitled to the protection of confidentiality and privacy within reasonable limits, given that they have not at that point aired the dispute in public. After the substantive hearing the need for public scrutiny diminishes in importance as time moves on. Parties are entitled to expect that the need for open justice has been met by full access during the substantive hearing stage, and that personal information not part of the formal court record or the decision will be given greater protection as the years go by. This is particularly so in a civil case as distinct from a criminal case where these considerations, while relevant, may have less weight because of the particular public interest in criminal prosecutions.

[9]                 A strike out application is an interlocutory application but, unlike other interlocutory applications, it can result in the proceeding coming to an end. For that reason, there can be heightened and legitimate public interest in the hearing of that application than may often be the case with other interlocutory applications. The number of media applications for the hearing of this strike out application is illustrative of this.

[10]In support of its application, TVNZ puts it this way:

TVNZ submits that there are good reasons for this interlocutory application to be publicly broadcast. The strike-out application relates to an action by the Plaintiffs, who represent over 550 people who collectively, lost more than

$100 million in what has been described as “New Zealand’s biggest Ponzi scheme”. Many are elderly. They are spread throughout New Zealand, with some living overseas. Most will not be able to attend in Court in person.

… TVNZ submits the initial fraud … the action by the Plaintiffs … the Defendant’s defence, including its strike out application – are of high public interest.

[11]             Open justice considerations are particularly compelling in this case because of the legitimate high public interest in this matter. If the defendant’s application is successful there will be no substantive hearing (compared with Smith v Claims Resolution Service Ltd where the interlocutory application concerned the

3      Greymouth Petroleum Holdings Ltd v Empresa Nacional del Petróleo [2017] NZCA 490 at [25].

representative party orders). I acknowledge the defendant has legitimate confidentiality and privacy interests in the proceedings, which are at a preliminary stage and concern serious and untested allegations. Recognising these interests on application to access court records has earlier been declined.4 I also acknowledge the In-Court Media Coverage Guidelines 2016 contemplate there will not be filming or recording when a Judge is sitting in Chambers. The Court, however, retains a discretion under the Guidelines as well as under the High Court Rules discussed above. If there are particularly sensitive, private or confidential matters to be aired, the Court retains the power to order that those matters not be published. The defendant will have the opportunity to seek non-publication of any such matters during the hearing.

[12]             I consider open justice must prevail in this case. I am granting the media applications made by MediaWorks, TVNZ and RNZ subject to:

(a)the standard conditions; and

(b)the condition that any broadcast of the filming or audio recording, and any report of the proceeding, complies with any non-publication orders that may be made at or in relation to the hearing on 2 and 3 March 2020.

[13]             At this stage the application by Goodas Film Productions is declined because I do not have information about whether this applicant is subject to a code of ethics and the complaints procedure of the Broadcasting Standards Authority, the Press Council or similar body.

Mallon J

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