SHANE HANSEN AND ESCAPE RENTALS LIMITED

[2017] NZHC 2185

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-001162

[2017] NZHC 2185

BETWEEN

SHANE HANSEN

Plaintiff

AND

ESCAPE RENTALS LIMITED

Defendant

Hearing:	5 September 2017
Appearances:	C Elliott QC for the Plaintiff B Cain for the First Defendant
Judgment:	11 September 2017

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 11 September 2017 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Haigh Lyon, Auckland

Ward Adams Bryan-Lamb, Invercargill C Elliott QC, Auckland

HANSEN v ESCAPE RENTALS LTD [2017] NZHC 2185 [11 September 2017]

Request for right of access to court documents

[1]    Ms Victoria Young of the National Business Review has made written request for a general right of access to formal court documents on the Court’s file in this proceeding.

[2]    Ms Young submits that NBR would like to access the Court file to view the statements of claim and defence in order to cover the proceedings and present ‘both sides of the story’ in a  timely  and  accurate  manner.  She  notes  in  support  that the “fact of the case and some detail” has already been reported upon in the  Northern Advocate.

[3]    The request relies on High Court Rules 3.9 and 3.13, and particularly on the following matters which are found in High Court Rule 3.16:¹

(c)    the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, court hearings and decisions:

(d)  the freedom to seek, receive, and impart information:

[4]    These rules have since been overtaken by the Senior Courts (Access to Documents) Rules 2017, where the above  matters  are  restated  in  a  new  rule (Rule 12), without any material change. Under the new rule 12 the Judge must consider “the nature of, and the reasons given for, the request”. The Judge must also take into account specific matters which relevantly include “the orderly and fair administration of justice”.

[5]    The plaintiff has no objection to NBR’s request. The defendant, on the other hand, has an objection which really boils down to the perceived risk that the lack of settled pleadings will not enable balanced reporting. Its concern is that the parties’ pleadings – and the statement of defence particularly – may require re-pleading after discovery in order to remove any inaccuracies which could lead to a distorted view of the defendant’s position being reported.

1      These relevant rules are now set out in the Senior Courts Rules 2017, and I therefore treat the application as one made under rr 11 and 12 of the new rules, which essentially restate rr 3.13 and 3.16.

[6]    But the defendant’s opposition is not indefinite. It accepts that at it may soon be appropriate to allow the NBR (and other media) to access the pleadings on the Court file.

Assessment

[7]    Ms Young’s request for access to the court file appears to be made for good reasons, but it is premature.

[8]    The proceeding is in its early stage, and the pleadings may yet change. So I accept that there is a risk that premature reporting might present an unbalanced perspective on the parties’ positions. In these circumstances the fair and orderly administration of justice must prevail over the legitimate interest of the media in having access to the court file.

[9]    However, that risk is likely to be gone once discovery has been completed and the defendant has had a brief opportunity to amend its pleading. The directions that the court has made for discovery mean that both sides should complete discovery by the end of September. The NBR therefore has leave to renew  its request after mid October. If there is still opposition then the court will need to consider whether to require a formal application and to allocate to hear from the parties; or whether to simply consider the matter on the basis of memoranda without the need for a hearing.

Result

[10]   The application is denied, but without prejudice to the NBR’s right to make a further request in or after mid-October 2017.

Associate Judge Sargisson