Scott v ANZ Bank New Zealand Ltd

[2019] NZHC 1908

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-376

[2019] NZHC 1908

BETWEEN

MARY ELIZABETH SCOTT

First Plaintiff

JOHN ROBERT DOUGLAS
Second Plaintiff

GRAY STRATTON THOMPSON
Third Plaintiff

AND

ANZ BANK NEW ZEALAND LIMITED

Defendant

On the papers:

Counsel:

J B M Smith QC and F J Cuncannon for Plaintiffs M Smith and I Rosic for Defendant

J Tibshraeny in person

Judgment:

7 August 2019

JUDGMENT OF CHURCHMAN J

[1]                 By email dated 16 July 2019, Jenée Tibshraeny, a journalist with “interest.co.nz” asked the Registrar to provide her with a copy of the statement of claim in this matter. This request was forwarded by the Registrar to counsel for both the plaintiffs and defendant.

[2]                 Counsel for both the plaintiffs and defendant filed separate memoranda dated 22 July 2019. Both opposed the application.

SCOTT v ANZ BANK NEW ZEALAND LIMITED [2019] NZHC 1908 [7 August 2019]

[3]                 The position adopted by counsel for the plaintiffs was that the application was premature and that any such application was best dealt with in the context of the representative orders application.1

[4]                 The memorandum filed by counsel for the defendant was more comprehensive. It submitted that the request should be declined for the following reasons:

(a)first, the request does not comply with the minimum procedural requirement set out in r 11 of the Senior Courts (Access to Court Documents) Rules 2017 (“the Rules”);

(b)second, the Court’s general practice has been not to allow access to the pleadings until, at a minimum, both parties’ pleadings are available to allow a balance reporting. The application is premature on any view; and

(c)third, at this very early stage of the proceeding, it is not appropriate to release the statement of claim, given the serious and untested nature of the allegations made in it, and the need to adequately protect the orderly and fair administration of justice.

[5]The legal propositions relied on were:

(a)the application is governed by the Rules;

(b)the statement of claim is not part of the formal Court record (r 8), and interest.co.nz is not a party to the proceeding (r 9). Accordingly, the applicable rules are rr 11 to 14;

(c)rule 12 sets out the mandatory relevant considerations for the Court in considering access;

1      In reliance on Strathboss Kiwifruit Limited v Seeka  Kiwifruit  Industries  Limited  [2015] NZHC 1596 at [77].

(d)under r 13(a), as this application is made before the substantive hearing stage “the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited”; and

(e)the exercise is evaluative, not discretionary: Crimson Consulting Ltd v Berry [2018] NZCA 460 at [18]-[31].

[6]                 The memorandum noted that the applicant had failed to give reasons for asking for access to the document, or indicate the purpose for which access was sought, thereby failing to comply with r 11(2)(c) of the Rules.

[7]                 Counsel for the defendant agreed with counsel for the plaintiffs that the application was premature, and that the Court’s general practice was not to allow access to the pleadings until, at a minimum, both parties have filed substantive pleadings.2

[8]                 Counsel also noted that the statement of claim contained serious and untested allegations about the defendant’s conduct, and those allegations were denied and will be strongly contested.

[9]                 It was submitted that because of the nature of the allegations, the Court should not give non-parties access to the statement of claim while the allegations in it remained untested.

[10]              Counsel referred to the requirement in r 13(a) of the Rules which provides that in the period prior to 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”.

[11]              In  response  to  the  grounds  of   opposition   advanced   by   the   parties, Ms Tibshraeny sent another email to the Court dated 5 August 2019. That email explained what the interest of the applicant was in obtaining a copy of the pleadings

2      Referring to Fuji Xerox New Zealand Limited & Ors v Whittakers & Ors [2018] NZHC 78 at [6].

referring to both open justice and the public interest. The email did not address the issue of whether the application was premature given that it preceded the filing by the defendant of its defence, or the argument that the nature of the untested allegations was such that the orderly and fair administration of justice required the application to be declined.

Analysis

[12]              The Court’s general practice is not to allow access to pleadings until, at a minimum, both parties have filed substantive pleadings.3

[13]As the Court of Appeal said in Crimson Consulting Ltd v Berry:4

[39]   […]When matters are still at the pleadings stage, there is an element  of unfairness on parties in the publication of one side of the story. The allegations in the statement of claim have not yet been tested by the giving of evidence. There being no hearing in Court, the need for transparency and public scrutiny is less, because pre-trial the Court is generally not determining substantive issues.

[14]              The earlier judgment of the Court of Appeal in Greymouth Petroleum Holdings Ltd & Ors v Empresa Nacional Del Petroleo, it adopted a similar approach.5

[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.

3      Fuji Xerox New Zealand Limited & Ors v Whittakers & Ors [2018] NZHC 78, above n 2 at [6].

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

5      Greymouth Petroleum Holdings Ltd & Ors v Empresa Nacional Del Petroleo [2017] NZCA 490 at [25].

Churchman J

Solicitors:

Meredith Connell, Wellington for Plaintiffs Gilbert Walker, Auckland for Defendant

cc:        J Tibshraeny