Smith v Claims Resolution Service Ltd

[2018] NZHC 3180

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000643

[2018] NZHC 3180

BETWEEN

KARLIE MARGARET SMITH

Plaintiff

AND

CLAIMS RESOLUTION SERVICE LIMITED

First Defendant

GRANT SHAND BARRISTERS AND SOLICITORS

Second Defendants

Hearing:

Dealt with on the papers

Counsel:

G A Cameron, M Smith and E J Flaszynski for Plaintiff A Barker QC and H M Weston for First Defendant

A B Darroch for Second Defendants

Judgment:

11 December 2018

JUDGMENT OF GENDALL J

KARLIE MARGARET SMITH v CLAIMS RESOLUTION SERVICE LIMITED [2018] NZHC 3180

[11 December 2018]

[1]                 Both Mediaworks and TVNZ have applied to film, take photographs and make sound recordings of all the hearings in this proceeding, including pre-trial hearings, (the Applications) under the “In-court Media Coverage Guidelines 2016” (the Guidelines).

[2]                 The plaintiff does not object to the Applications. Both defendants, however, oppose them and have filed submissions setting out their objections (although essentially directed at the earlier Mediaworks application. These submissions, and this judgment, relate only to the interlocutory hearing scheduled in this proceeding to take place on 17 and 18 December 2018.  At this hearing, the plaintiff applies under  r 4.24 High Court Rules to bring this proceeding as a representative action. That hearing will deal only with the plaintiff’s representative party interlocutory application and not the substantive proceeding.

[3]                 This Court will accept further submissions from the parties (if any) regarding the present media Applications relating to the substantive hearing in this proceeding, and indeed any other appropriate intermediate hearings in the meantime (“the subsequent hearings”), as those events approach. As I note above, this judgment does not relate to those subsequent hearings. At this point, however, given what I understand to be the broad public interest nature of any substantive hearing that might proceed in this matter, and the interests of open justice, I express a preliminary view that the Application is one that is likely to succeed for that substantive hearing.

[4]                 In both the present Applications, Mediaworks and TVNZ confirm that they will abide by the Guidelines and they request that the standard conditions set out in Schedules 1 to 5 are to apply.

[5]                 Rule 7.34 High Court Rules provides that an interlocutory application is heard in Chambers unless the Judge orders otherwise. Guideline 5(4) provides:

(4)While the Judge is sitting in court for chambers or in closed court, no electronic communication may take place.

Provisions in the Schedules to the Guidelines also prohibit the filming, recording of

sound and taking of photographs of matters heard in chambers.1 Therefore, Mediaworks and TVNZ would not be able to cover the interlocutory proceeding on 17 and 18 December 2018 in any of those manners.

[6]                 I consider this is the appropriate outcome here. I say that given the nature of interlocutory proceedings. 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 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.

[8]                 I consider that the present Applications could only be granted here with regard to the present interlocutory hearing where there are clear and compelling reasons why the public interest requires such coverage. There are no such reasons in this case. It

1      In-court Media Coverage Guidelines 2016, Sch 1, cl 4; Sch 2, cl 3 and Sch 3, cl 1.

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

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

is somewhat indicative that, as far as I am aware, to date there appear to have been no cases in New Zealand where televised or recorded coverage of an interlocutory application in chambers matter has been permitted. Given the nature of the allegations against the defendants, which might be seen at one level to do damage to their respective reputations and businesses, principles of privacy are important here.

[9]                 I note the defendants’ submissions too that they claim there are positive reasons not to grant the Applications. In their the interlocutory proceeding here, the plaintiff seeks the Court’s approval to the form of communication the plaintiff is to have with members of the proposed representative group. The defendants submit that the proceeding may be advertised in a way that is not ultimately approved by this Court. This is a factor that may give some support to the decision to refuse the Application, although I do not find it determinative.

[10]              For all these reasons, I find that the Applications should not be granted but only at this point with respect to the interlocutory hearing on 17 and 18 December 2018, and they are declined so far as that hearing is concerned. I make no determination at this point regarding coverage of the substantive trial, however. That is a matter for further submissions at the appropriate time.

...................................................

Gendall J

Solicitors:

GCA Lawyers, Christchurch Matthew Smith, Wellington

Andrew Barker QC, Barrister, Auckland Canterbury Legal, Christchurch Darroch Forrest, Wellington