Smith v Electrix Limited - [2021] NZSC 64

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 33/2021
[2021] NZSC 64

BETWEEN	JOHN GOODWIN SMITH Applicant
AND	ELECTRIX LIMITED First Respondent
THE FLETCHER CONSTRUCTION COMPANY LIMITED Second Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	J A Farmer QC and M Heard for Applicant K M Quinn for First Respondent M N Rathod for Second Respondent
Judgment:	16 June 2021

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.
B There is no order as to costs.

____________________________________________________________________

REASONS

Introduction

Mr Smith is writing a book on the construction of the Justice and Emergency Precinct in Christchurch. The proposed appeal relates to access to documents in the Electrix/Fletcher construction litigation.

Background

Before judgment in the substantive case was delivered, Palmer J in a judgment on 18 October 2019 (Electrix (No 1)) granted a media application giving access to:[1]
(a)the pleadings, including the counterclaim;
(b)the parties’ opening submissions, except for redactions in Electrix’s submissions for commercial confidentiality;
(c)the briefs of evidence of the witnesses of fact, subject to any redactions for commercial confidentiality;
(d)the Notes of Evidence, once they are complete; and
(e)the closing submissions, when delivered.
[1]Electrix Ltd v Fletcher Construction Co Ltd [2019] NZHC 2678, (2019) 25 PRNZ 137 (Palmer J) [Electrix (No 1)] at [19].
Access to the briefs of evidence of the experts was declined for reasons of commercial confidentiality as they largely related to cost and pricing information. Both parties were invited to redact any other commercially sensitive information in other briefs before they were provided to the media.[2]
[2]At [17].
Blanket access to the 5000 documents in the electronic bundle was declined on the basis that they may not all become evidence, but it was said:[3]
If Ms Young, or other media, wish to request any particular documents mentioned in a brief of evidence or submissions, they may do so. I would expect a document would be made available unless counsel advise there is good reason, such as commercial confidentiality, not to do so.
[3]At [18] (emphasis added).
Judgment in the substantive litigation (Electrix (No 2)) was delivered on 6 May 2020.[4]
[4]Electrix Ltd v The Fletcher Construction Company Ltd No 2 [2020] NZHC 918 (Palmer J) [Electrix (No 2)].
After the substantive litigation judgment was delivered, Mr Smith applied for access to the whole of the Court file. By minute of 13 July 2020, Palmer J declined that application but granted him access to the same material that had been provided to the media.
Mr Smith then applied for access to the documents cited by the witnesses in the case (some 1000 documents).[5]
[5]Electrix Ltd v Fletcher Construction Co Ltd (No 3) [2020] NZHC 2348, (2020) 25 PRNZ 483 (Palmer J) [Electrix (No 3)] at [3].
In a judgment of 9 September 2020 (Electrix (No 3)), Palmer J said that there is commercial sensitivity in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZSC 64
Decision Date: 16 June 2021

CaseChat Overview and Summary

In the Supreme Court of New Zealand, John Goodwin Smith sought leave to appeal against the Court of Appeal's decision that his application for an extension of time to appeal was hopeless and an abuse of process. Mr Smith is writing a book on the construction of the Justice and Emergency Precinct in Christchurch. The substantive litigation between Electrix and Fletcher Construction involved an application for access to documents, which was largely granted by Palmer J. Mr Smith's subsequent applications for access to additional documents were denied on the basis of commercial confidentiality, which the Court of Appeal upheld. Mr Smith argued that the Court of Appeal was wrong to consider his applications the same, but the respondents submitted that the principle of open justice was adequately protected and that private litigants should not be vexed with repeated disclosure applications.

The legal issues before the court were whether the Court of Appeal correctly decided that Mr Smith's application for an extension of time to appeal was hopeless and an abuse of process, and whether the Court of Appeal erred in considering Mr Smith's applications the same. The court considered the principles set out in Almond v Read for granting an extension of time to appeal and noted that the Court of Appeal had applied those principles in this case. While there may be some scope for argument as to whether Electrix (No 3) covered the current application, the significance of this argument was confined to the particular circumstances of this case.

The Supreme Court found that the Court of Appeal applied the correct principles in denying Mr Smith's application for an extension of time to appeal. The court noted that Mr Smith was not without remedy, as he could still apply for an extension of time to appeal against Electrix (No 3). The application for leave to appeal was dismissed, and there was no order as to costs.

Counsel for the parties were J A Farmer QC and M Heard for Mr Smith, K M Quinn for Electrix, and M N Rathod for Fletcher Construction. The judgment was delivered by Glazebrook, O’Regan and Ellen France JJ on 16 June 2021.

Orders