Signum Holdings Limited v Okuora Holdings Limited

[2024] NZHC 1194

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-152

[2024] NZHC 1194

BETWEEN

SIGNUM HOLDINGS LIMITED

Applicant

AND

OKUORA HOLDINGS LIMITED

Respondent

Hearing:

On the papers

Counsel:

Mr Ryan in person

D R Kalderimis and T J Powell for Respondent J J Brown for Synlait Milk Limited

J A Craig and N D Chapman for The a2 Milk Company Limited

Judgment:

14 May 2024

JUDGMENT OF PRESTON J

(application by non-party for access to court documents)

This judgment was delivered by me on 14 May 2024 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

SIGNUM HOLDINGS LIMITED v OKUORA HOLDINGS LIMITED [2024] NZHC 1194 [14 May 2024]

Introduction

[1]    Paul Ryan, a non-party and a former director of Signum Holdings Limited (Signum) (now in liquidation), applies for access to court documents in these proceedings in which the Court declined Signum’s application to set aside a statutory demand issued by Okuora Holdings Limited (Okuora).1

[2]    The hearing of the substantive proceedings took place before Associate  Judge Paulsen on 15 August 2023. Mr Ryan, in his then capacity as a director and the effective controlling shareholder of Signum, gave evidence by affidavit. He attended the hearing in person.

[3]    On 1 November 2023, judgment of the Court issued in favour of Okuora. Signum was ordered to make payment to Okuora in accordance with the demand. The same day Mr Ryan resigned his directorship, as did the other director. A week later Signum’s shareholders placed the company into liquidation. The judgment was sealed on 8 December 2023. Counsel for Okuora advises payment has not been made to Okuora.

[4]    The present position is that no non-party may access the court file without order of a High Court Judge.2

[5]    Okuora and the non-parties, Synlait Milk Limited (Synlait) and The a2 Milk Company (a2MC), oppose the application.

Application

[6]    Mr Ryan seeks access to “the formal record, the transcript and the court file” under the Senior Courts (Access to Court Documents) Rules 2017 (Rules). In particular, he seeks a copy of “the full transcript of the hearing, including the … parts of the hearing that dealt with applications by [Synlait] and [a2MC] for non-publication orders”.

1      Signum Holdings Limited v Okuora Holdings Limited [2023] NZHC 3041.

2      Signum Holdings Limited v Okuora Holdings Limited [2023] NZHC 2252 at [23].

[7]    Mr Ryan states that shareholders have approached the liquidators “to explore financing an appeal or recall of the Judgement [sic] [based on] previously concealed documents uncovered by orders for disclosure … in separate proceedings”. The documents are sought to enable Mr Ryan to assess and explore whether there are proper grounds to apply for recall or for leave to appeal and to assess “[t]he submissions and evidence ... in light of other proceedings which rely on the same or similar facts”.

Approach to assessment

[8]Rules 12 and 13 provide the framework for determining the application.3

[9]    I must consider the nature of, and reasons for, the request and consider the matters set out in r 12, relevantly:

(a)the orderly and fair administration of justice:

...

(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:

...

(h)       any other matter that the Judge thinks appropriate.

[10]   No one factor has primacy over others. All relevant factors must be balanced against each other; the weight to be given to each factor is a matter of evaluation.4 Where, as here, application is made after the substantive hearing, r 13 provides that open justice has greater weight in relation to documents relied on in a determination

3      Senior Courts (Access to Court Documents) Rules 2017, r 15.

4      Crimson Consulting Ltd v Berry [2018] NZCA 460, (2018) 25 PRNZ 447 at [16] and [32].

than other documents, but protection of confidentiality and privacy interests has greater weight than would be the case during the substantive hearing.

Analysis

[11]   Associate Judge Paulsen’s substantive judgment arose out of Signum’s originating application, where Mr Ryan gave the principal affidavits for Signum and in which there were no discovery requests or orders. That judgment and an earlier judgment, in which the Associate Judge lifted non-publication orders relating to the non-parties,5 other than miscellaneous minutes comprise the formal court record and are already public.

[12]   It appears the focus of Mr Ryan’s application is upon the transcript of the argument at the substantive hearing; no other part of the court’s “file” is specified as is required to identify a document sought.6 No transcript of the hearing presently exists. That part of Mr Ryan’s request accordingly does not fall within the Rules.7 Nor do the Rules require a document not in existence to be prepared.8 Transcripts of arguments made in civil proceedings are not made available as a matter of course. Because of the time and expense to the courts in having transcripts prepared, a court will not direct that to be done unless there is a good reason in the interests of justice for doing so.9 For the reasons discussed below, I do not consider Mr Ryan’s application presents any basis to indicate that test is met here.

[13]   The application does not relate to an appeal, as Mr Ryan asserts: Signum, via its litigators has not applied for leave to appeal out of time.10 Further, judgment having been sealed some six months ago, neither Signum nor Mr Ryan is able to apply to recall the judgment under the High Court Rules.11 Although the application claims

5      Signum Holdings Limited v Okuora Holdings Limited, above n 2, at [17]–[22].

6      Senior Courts (Access to Court Documents) Rules, r 11(2)(b).

7      Rule 4 defines “document” (in relation to a civil proceeding) as meaning “any written material in the custody or control of the court that relates to the proceeding …”. See Wiki v Police [2018] NZHC 2378 at [5]–[11].

8      Senior Courts (Access to Court Documents) Rules, r 3(3).

9      Siemer v Heron [2011] NZSC 116, [2012] 1 NZLR 293 at [9]. And see Dunstan v Ministry of Social Development [2023] NCZA 164 at [14].

10 Senior Courts (Access to Documents) Rules, r 8(5).

11 High Court Rules 2016, r 11.9. The inherent jurisdiction to recall a sealed judgment is to be exercised only in exceptional circumstances: Clements v Clements [2019] NZHC 204 at [5], citing R v Smith [2003] 3 NZLR 617 (CA) at [28]–[36]. Recall cannot “be a means of collateral attack

that either course might be justified by the existence of the documents said to have been previously concealed, Mr Ryan offers no evidence of those documents, or explanation to identify them, or the basis on which it is alleged they were concealed or how they might constitute fresh and cogent evidence.

[14]   There is no evidence that the liquidators, who have the right to access the court file, have encouraged or support Mr Ryan’s present application.12 This is notable given that the liquidators have apparently been made aware of the allegedly concealed documents to which Mr Ryan refers. In these circumstances Mr Kalderimis, for Okuora, submits the application is a fishing expedition for documentation or information the applicant might wish to use to persuade Signum’s liquidators to attempt to relitigate historic grievances. Whether or not that is so, I do not consider access is necessary for the orderly and fair administration of justice on the information put before me.

[15]   I accept, as counsel submit, the principle of open justice has been satisfied throughout the proceeding. The court record indicates confidentiality issues were resolved as and when they arose. Signum had every opportunity to make submissions in relation to those issues during the proceeding. Public reporting on the file was permitted and articles written by a member of the accredited media. Further, the Court determined a post-hearing application for access to court records by The National Business Review, being careful to strike the balance between open justice and protection of commercially sensitive information in the summary application to set aside a statutory demand.

[16]   Weighing all these factors, I am not satisfied it is appropriate to grant access. I note there is no document specified as engaging r 13(c)(i), which indicates open justice has greater weight in relation to documents relied on in a determination than other documents; to the contrary, Mr Ryan’s application is based on unspecified and unproved documents said to have been revealed in other proceedings. Further, there

on a decision. A judgment should not be recalled in order to consider a challenge to substantive findings of fact or law …” Ideal Investments Ltd v Earthquake Commission [2023] NZCA 388 at [5].

12 Senior Courts (Access to Documents) Rules, r 9.

is no basis to displace the priority of protection of confidentiality and privacy interests in the post-hearing assessment, which r 13(c)(ii) indicates.

Result

[17]The application is declined.

………………………………………

Preston J

Solicitors:

Meredith Connell, Auckland

Harmos Horton Lusk Limited, Auckland Simpson Grierson, Auckland

Bell Gully,Wellington

Copy to: Mr Ryan