Wentworth Retreat (2009) Limited v Lumley General Insurance (NZ) Limited

[2018] NZHC 1519

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2014-404-000966

[2018] NZHC 1519

BETWEEN

WENTWORTH RETREAT (2009)

LIMITED and MARES PROPERTIES (NZ) LIMITED
Plaintiffs

AND

LUMLEY GENERAL INSURANCE (NZ) LIMITED

Defendant

Hearing:	(On the papers)
Judgment:	25 June 2018

JUDGMENT OF VENNING J

This judgment was delivered by me on 25 June 2018 at 10.00 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Meredith Connell, Auckland

Nicholls Law Ltd, Auckland Webster Malcolm, Auckland Fee Langstone, Auckland

Counsel:N Campbell QC, Auckland S Keall, Auckland

WENTWORTH RETREAT (2009) LIMITED and MARES PROPERTIES (NZ) LIMITED v LUMLEY GENERAL INSURANCE (NZ) LIMITED [2018] NZHC 1519 [25 June 2018]

Introduction

[1]The Registrar has referred this file to me as Duty Judge.

[2]        Through its lawyers Meredith Connell, Dell Inc (Dell) applies to the Court to access the Court documents in proceedings between Wentworth Retreat (2009) Limited (Wentworth) and Mares Properties (NZ) Limited (Mares) against Lumley General Insurance (NZ) Limited (Lumley) in CIV-2014-404-966 (the insurance proceedings). It seeks access to the pleadings, conference memoranda, affidavit of documents and list of documents. The proceedings have settled. The terms of the settlement are confidential.

[3]        The application is opposed by the solicitors for Lumley General Insurance (NZ) Limited. The solicitors have been instructed to act for Wentworth and Mares in the current proceedings brought in their name against Dell Inc in CIV-2016-404-510 (the current proceedings).

Background

[4]        In the insurance proceedings Wentworth and Mares sued Lumley for insurance cover relating to the loss of a building owned by them by fire. Lumley resisted the claim. The insurance proceedings were ultimately settled by a confidential agreement.

[5]        In the current proceedings Lumley effectively sues Dell (relying on its rights of subrogation) alleging the fire which destroyed the building was caused by a Dell computer.

Application

[6]        Dell seeks access to the documents in the insurance proceedings in order to confirm matters that were in Wentworth’s and Mares’ insurance claim so as to be able to form its own view as to whether any of them affect the issues in the current proceedings. That includes the quantum of the plaintiffs’ alleged loss. Dell notes that the plaintiffs have taken the position there is nothing in the insurance proceedings of relevance but submits minds may reasonably differ on that. Dell considers the most

time and cost efficient way to resolve the matter is to allow it to inspect the pleadings in the insurance proceedings.

[7]        Lumley opposes the application on the basis that Dell is effectively seeking to obtain information which it has previously been denied by the Court. Dell has been unsuccessful in applications to the Court in the current proceedings to obtain such information.

Procedure

[8]        Counsel for Dell has suggested that if the application is opposed they would like to be given the opportunity to be heard. I do not consider an oral hearing is required. Rule 14 of the Senior Courts (Access to Court Documents) Rules 2017 confirms that a Judge may determine the request for access and any objection in any manner the Judge considers just, including on the papers. The grounds for the application were set out fully by counsel on behalf of Dell in the letter of 6 June 2018. It was responded to fully by counsel for Lumley in his response of 11 June 2018. Dell has had the opportunity to reply to that and has done so in full by an email of 12 June 2018. The Court has also had a chance to review the file in issue. I am satisfied the application can properly be determined on the papers and an oral hearing is not required.

Prior interlocutory applications

[9]        There have been a number of previous interlocutory applications in the current proceedings. In a judgment delivered on 31 October 2017 Associate Judge Christiansen dismissed Dell’s application for a further and more explicit statement of claim.1  Dell had sought more explicit pleadings regarding the plaintiffs’ insurance. In the course of his decision Associate Judge Christiansen confirmed that the plaintiffs’ insurance details were not relevant to the claim because the claim was about negligence and that, even if they were relevant, they would not be a matter for pleadings but documentary evidence provided through discovery. Further it was a fundamental principle of subrogation that a third party sued by an insured cannot avoid

1      Wentworth Retreat (2009) Ltd v Dell Inc [2016] NZHC 2592.

liability on the ground the insured has been fully indemnified for his loss. The details of the insurance policy were not a pleadings issue.

[10]      Dell then sought to obtain the information by making an application for further and better discovery. Associate Judge Bell dismissed that application, finding that the plaintiffs’ insurance policy and schedule relating to the property for the 2013/2014 policy year, and the subsequent settlement agreement between the plaintiffs and their insurer, were entirely irrelevant to a tort claim in a case such as the claim by the plaintiffs against Dell.2

[11]      I note that although the Judge subsequently reserved leave for Dell to bring an application for further discovery no such further application has been pursued.

[12]      Dell’s solicitors say in their response of 12 June 2018 that Dell is not seeking the insurance policy or related documents and that any specific reference to insurance policies or clauses contained within the pleadings could be redacted if so required. Dell accepts that they cannot access the settlement (which will not be on the Court file) but still suggest that pleadings as to the indemnity value of the property and other information on the file could be relevant.

Relevant principles

[13]      As the insurance proceedings have been resolved the protection of confidentiality interests has greater weight than would have been if the case had been heard and particularly as would have been the case at the substantive hearing of the case.3

[14]      The following matters are the particularly relevant considerations in the present case.

2      Wentworth Retreat (2009) Ltd v Dell Inc [2017] NZHC 1627.

3      Senior Courts (Access to Court Documents) Rules, r 13.

The orderly and fair administration of justice

[15]      Despite Dell’s protests to the contrary, the information it seeks from the insurance proceedings significantly overlaps with the information that it unsuccessfully sought to obtain first by way of particulars and second by way of discovery. The focus of the previous claim was entirely directed at the plaintiffs’ application for insurance cover. The orderly and fair administration of justice will not be enhanced if a party in Dell’s position fails on interlocutory applications properly brought and argued before the Court, but can then obtain the information by using the access to documents rules. There is potential to abuse the processes of the Court. I  do not suggest that is Dell’s intention in this case but that would be the consequence of allowing the application given the pleadings and matters in issue in the insurance proceedings.

Right to bring and defend civil proceedings without the disclosure of any more information about matters that are commercially sensitive, than is necessary to satisfy the principle of open justice

[16]      The principle of open justice requires that if and when the current proceedings proceed to a trial the trial will be in public and open to the media. The principle does not support the disclosure of matters that are commercially sensitive, i.e. the matters pleaded in earlier proceedings which ultimately culminated in an out of Court settlement.

Open justice

[17]      As noted the principle of open justice will be met by the ability of the media to report this proceeding in due course.

The freedom to seek information

[18]      Dell is free to seek the information, but the Court is entitled to consider the relevance of the information to the current proceedings. It is also important to record that Dell has had the opportunity to exercise its rights under the interlocutory processes in the High Court Rules to obtain relevant information in order to prepare the defence of its case in the current proceedings.

Any other matter that the Judge thinks appropriate

[19]      This general catch all overlaps with the orderly and fair administration of justice point in this case. On my review of the file, the clear emphasis in the insurance proceeding was on the insurance policies. To the extent that Dell refers to issues such as the proper value of the plaintiffs’ property and the quantum of loss they are matters for the plaintiffs to prove in the present proceeding, and for Dell to respond to. References in the previous proceedings to the value of the insured property and details of insurance are no more relevant to the current proceedings than are the terms of the agreed settlement.

[20]      Further, as noted, it would be wrong for this Court to permit the access to documents rules to override the procedural rules in the High Court.

Result

[21]For the above reasons the application to access the documents is declined.

Venning J