Sylvia Park Business Centre Limited v Brookfield Multiplex Construction (NZ) Limited (in liquidation) (formerly known as Multiplex Construction (NZ) Limited)
[2014] NZHC 2058
•29 August 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-4933 [2014] NZHC 2058
BETWEEN SYLVIA PARK BUSINESS CENTRE
LIMITED Plaintiff
AND
BROOKFIELD MULTIPLEX CONSTRUCTION (NZ) LIMITED (in liquidation) (formerly known as Multiplex Construction (NZ) Limited
First defendant
BROOKFIELD AUSTRALIA INVESTMENTS LIMITED (formerly known as Multiplex Limited)
Second Defendant
DOWNER NEW ZEALAND LIMITED Third Defendant
On the papers Counsel:
JG Miles QC, JK Stewart and E Kurtovich for plaintiff DT Broadmore for the liquidators of the first defendant RG Simpson and BJ Ward for third defendant
Judgment:
29 August 2014
JUDGMENT OF FAIRE J
This judgment was delivered by me on 29 August 2014 at 3pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: MinterEllisonRuddWatts, Auckland
Buddle Findlay, Auckland
Chapman Tripp Auckland
Bell Gully, Auckland
To: National Business Review, Auckland (V Young)
Sylvia Park Business Centre Ltd v Brookfield Multiplex Construction (NZ) Ltd [2014] NZHC 2058 [29 August
2014]
[1] The National Business Review, by its owner Fourth Estate Holdings Ltd, has applied for access to the formal court documents in this proceeding. It requests permission to inspect and copy any statements of claim and defence.
[2] A copy of the request was supplied to counsel for the parties.
[3] The plaintiff’s counsel advised that the plaintiff opposed the application.
Other parties abide the court’s decision.
[4] Submissions in support and opposition have been filed. In the first instance, the parties sought an oral hearing. Fourth Estate Holdings Ltd then advised that it did not seek to be heard. On receipt of that advice, the plaintiff’s counsel advised that the plaintiff did not seek an oral hearing. I therefore proceed on the papers.
[5] Fourth Estate Holdings Ltd outlines the reasons for its request, in summary, as follows:
(a) The proceeding involves a complex, which is one of New Zealand’s
most well-known shopping centres;
(b)Cases involving leaky buildings are of public interest. The public has a right to know if a building has weathertightness issues;
(c) There is public interest in the apportionment of liability between developers, builders and local and territorial authorities;
(d)There has already been some publication of the fact the plaintiff has a building defects claim; and
(e) Access to the documents is the best way to ensure that the dispute is reported accurately.
[6] The plaintiff objects to disclosure on the following grounds, namely:
(a) This is not a leaky building case. In fact, it is a building defects case.
The focus is on materials, workmanship and fitness for purpose of a mastic-asphalt car park and the workmanship and performance of the membrane, roofs and gutters;
(b)Because it is not a leaky building case, any public interest in leaky building cases is not a justification for access in this case;
(c) Although there was an article in the New Zealand Herald there has, in fact, been no media comment about the nature of the defects at the complex, nor about the current parties;
(d)The application has been made at the pre-trial stage. The authorities it is submitted are against disclosure at this stage because:
(i)Preparation of a case is enhanced without the scrutiny of outside parties. This can affect proper discovery and disclosure of commercial sensitive information;
(ii) Settlement would be discouraged; and
(iii)The airing of contested but untested facts leads to division between the parties, which is a further disincentive to settlement;
(iv)the pleadings contain commercially sensitive private and confidential information;
(e) The principle of open justice goes to the reporting of, and comment on, court hearings and decisions. This proceeding has not yet reached the stage of a hearing with the result that there is limited value in any publicity being given to the case but, on the other hand, significant prejudice arising from the reporting of matters in pleadings which have not had the benefit of submissions and oral evidence. The
plaintiff opposed not only the granting of access, but also the disclosure of the reasons for declining access in any judgment.
[7] This application is made in reliance on r 3.13 of the High Court Rules. The matters which are required to be taken into account are set out in r 3.16
3.16 Matters to be taken into account
... the Judge ... must consider the nature of, and the reasons for, the application or request and take into account each of the following matters that is relevant to the application, request, or objection:
(a) the orderly and fair administration of justice:
(b) the protection of confidentiality, privacy interests (including those of children and other vulnerable members of the community), and any privilege held by, or available to, any person:
(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:
(e) whether a document to which the application or request relates is subject to any restriction under rule 3.12:
(f) any other matter that the Judge or Registrar thinks just.
The applicable principles - general
[8] Two different views have been expressed on applicable principles. In Chapman v P and Commerce Commission v Air New Zealand Ltd, Mallon and Asher JJ respectively, held that the principle of open justice to which r 3.16(c) refers does not assume primacy.1 In taking that view they disagreed with the contrary approach taken by Wild J in BNZ Investments Ltd v Commissioner of Inland Revenue.2 Mallon and Asher JJ took the view that the “open justice” principle was one of a number of factors to be taken into account in the balancing exercise required under the Rules.
[9] The fact that an application is made prior to the substantive hearing phase and, in this case, at a very early stage of the case means that the principle of open
1 Chapman v P (2009) 20 PRNZ 330 (HC); Commerce Commission v Air New Zealand Ltd [2012] NZHC 271.
2 BNZ Investments Ltd v Commissioner of Inland Revenue (2010) 24 NZTC 23,917 (HC) at [38].
justice, relating as it does to the fair and accurate reporting of court hearings, has much less force than privacy considerations.3
The orderly and fair administration of justice
[10] This application is made in the early days of this litigation. The parties’ statements of claim and statements of defence are untested allegations. Publication of their contents, therefore, will serve no useful purpose. The High Court Rules require the parties to cooperate to bring a case to hearing. Scrutiny by outside parties is unlikely to assist as they dispose of interlocutory matters. I am not satisfied that the orderly administration of justice in this case supports the disclosure that is sought.
Protection of confidentiality, private interests … and any privilege held by or
available to any person
[11] The parties must attend to their discovery obligations. The High Court Rules prohibit the use of documents discovered unless read in court: r 8.30. The parties are encouraged to make proper discovery having regard to the protections provided to that process by the High Court Rules. The parties should also be encouraged to explore resolution of their cases. Settlement discussions and documents pertaining to that process attract a privilege by the operation of s 57 of the Evidence Act 2006. Bearing in mind, again, the early stage of this proceeding I am not satisfied that disclosure is justified.
The principle of open justice
[12] This subrule relates directly to the fair and accurate reporting of and comment on court hearings and decisions. Because of the current position of this proceeding, that objective is not yet engaged and, as some of the authorities have referred to, has much less force at this stage. In addition, the plaintiff’s counsel has confirmed that the case is not a leaky building case. The public interest factor referred to, therefore, at [5]b) of this judgment does not apply. The same can be said
about the public’s interest in the apportionment of liability between various parties involved in leaky building disputes. As an issue that will not arise until the hearing.
[13] The third matter referred to was that the fact that there had been some publication relating to the case. The plaintiff’s response, which is summarised in [6]c) of this judgment discloses that the issues in this litigation have not been the subject of publication.
[14] The result of this analysis is that there is nothing under this subpart of the
Rule which would justify access at this stage.
Remaining matters in r 3.16
[15] So far as the balance of the matters that are to be considered under r 3.16 are concerned none, in my view, apply at this stage of the proceeding.
Publication of this judgment
[16] Rule 13.3 does not apply as permission of the court is not necessary under the rules to access a judgment, in the normal course of events. The only way to suppress publication of this judgment is if I make such an order through the exercise of my inherent jurisdiction.
[17] The starting point is the presumption in favour of open justice. The court’s inherent jurisdiction ought to be exercised sparingly, and the applicant must show exceptional circumstances in order to outweigh the principle of open justice.4 The normal course of events is that judgments discussing applications to access court documents are not suppressed. I see no reason to depart from that in this case.
Conclusion
[18] Accordingly, I reach the view that there is no justification for granting the access sought at this stage. I decline to order that this judgment should not be published.
Orders
[19] Accordingly, I refuse the application. I decline to order that this judgment, which records the reasons for that refusal, be not published.
JA Faire J
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