Tempest Litigation Funders Ltd v Kamal

[2020] NZHC 193

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-504

[2020] NZHC 193

BETWEEN

TEMPEST LITIGATION FUNDERS LTD

Applicant

AND

IMRAN KAMAL

Respondent

Hearing:	On the papers
Counsel:	A S Botterill for Applicant K P Sullivan for Respondent
Judgment:	18 February 2020

JUDGMENT OF CLARK J

Introduction

[1]This judgment determines two applications for access to court documents.

[2]        The underlying proceeding concerns a dispute between creditors and the liquidator, Mr Kamal. Tempest Litigation claims Mr Kamal is in breach of his duties as liquidator and seeks a declaration under the Companies Act 1993 as to the validity of Mr Kamal’s appointment. Tempest Litigation was granted leave to commence the proceeding by originating application in August 2019. The matter is set down to be heard on 11 March 2020.

The applications

[3]        Jessica Matheson, an Auckland barrister, seeks a copy of “the High Court Applications filed under CIV-2019-485-504”. Ms Matheson wishes to review the

TEMPEST LITIGATION FUNDERS LTD v KAMAL [2020] NZHC 193 [18 February 2020]

orders sought and the grounds the applicant relies on as her clients are intending to file proceedings against the respondent, Mr Kamal.

[4]        A second application is made by Lindsay McCormack who says she is involved in a similar case and wishes to access the statement of claim.

[5]        Tempest Litigation abides the decision of the Court. The respondent opposes the applications for access. Counsel for the respondent, Mr Sullivan, submits the originating application, notice of opposition and affidavit evidence should not be accessed for the following reasons:

(a)This is not a matter involving creditors per se. It is really a dispute about the initial creditors’ meeting and the requirement to disclose voting records,

(b)Mr Kamal has concerns about the applicants’ evidence which attaches correspondence marked “without prejudice”. He intends to challenge the evidence at the commencement of the hearing,

(c)There is no public interest in this type of proceeding unless, and until, it goes to Court and is the subject of judicial comment.

Discussion

[6]        Access to court documents is governed by the Senior Courts (Access to Court Documents) Rules 2017 (the Rules). Any person may apply to access any document on the court file under r 11. A judge may grant the request, with or without conditions, after considering the nature of and reasons for the request and taking into account those of the factors listed in r 12(a)–(h) that are relevant. Rule 13 deals with the approach to balancing matters in r 12. It provides that “before the substantive hearing, the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited.”

[7]        Both requests are made, it  seems,  for the purpose of  intended  litigation.  Ms Matheson seeks access “to the High Court applications filed” which I take to mean

access to the originating application seeking orders. Ms McCormack seeks the statement of claim. In this case the proceeding was commenced by originating application, not a statement of claim. For the purpose of my decision I will assume Ms McCormack seeks a copy of the first document filed that is, the originating application.

[8]        Parallel litigation may be a legitimate reason for seeking access to a court file. There are a number of High Court  decisions  granting access  on  those  grounds.1 Mr Sullivan, for the respondent, argues this is a fishing expedition by the other lawyers involved in separate matters before the court. But the suggestion that an applicant may be “fishing” does not of itself disqualify the request.2 Where, however, the proceeding involves potentially confidential matters the courts have displayed a reluctance to provide access for the purpose of parallel proceedings without good reason.3

[9]        One of the matters to be considered under r 12(c) is 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. The originating application is advanced on the basis of asserted serious failures by the respondent.  In  my view  Mr Kamal has the right to defend the accusations without the scrutiny of third parties.4 The protection of confidentiality and privacy interests have greater weight where an application for access is made before a substantive hearing. Mr Sullivan also points out that one of the affidavits on the court file refers to communications marked “without prejudice”. But neither application for access seeks access to affidavits, so the possibility of without prejudice communications being released does not arise.

[10]      Weighing against privacy interests is the freedom to seek, receive and impart information.5 Transparency of court proceedings “maintains public confidence in the

1      See for example GFD I LLP v Melview (Kawarau Falls Station) Investments Ltd (in rec) [2012] NZHC 1796; and Minister of Education v James Hardie New Zealand Ltd [2013] NZHC 1872.

2      See Fuji Xerox New Zealand Ltd v Whittaker [2018] NZHC 1043.

3      See GFD I LLP v Melview (Kawarau Falls Station) Investments Ltd (in Rec) [2012] NZHC 677, (2012) 21 PRNZ 125 at [18].

4 At [16].

5      Senior Courts (Access to Court Documents) Rules 2017, r 12(a).

administration of justice by guarding against arbitrariness or partiality, and suspicion of arbitrariness or partiality, on the part of courts”.6 Mr Sullivan, however, submits there is no public interest in this type of proceeding as it is not a matter involving creditors generally but is a dispute about the procedural steps taken by the liquidator for this particular liquidation. I agree. The applicants for access are not representatives of the media but seek documents for their private use. The principle of open justice does not have the same weight in those circumstances.

[11]      Overall, given the nature of the contentions in the originating application and the paucity of reasons given for the requests for access, the balance comes down in favour of declining disclosure. In arriving at that conclusion I am aware the matter is set down to be heard in three weeks’ time. Should the applicants continue to seek access they are free to reapply. It may be that any future application will contain more detailed reasons setting out the purpose for the requests.7

[12]Accordingly, the applications for access are denied.

Karen Clark J

Solicitors:

Langford Law, Wellington for Respondent

6      Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2] (footnotes omitted), as cited in

Crimson Consulting Ltd v Berry [2018] NZCA 460 at [33].

7      As required by r 11(2)(c) of the Rules.