White v James Hardie New Zealand Limited
[2022] NZHC 2965
•11 November 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2015-404-2981
[2022] NZHC 2965
BETWEEN KAREN LOUISE WHITE AND THE PERSONS LISTED IN SCHEDULE 1
Plaintiffs
AND
JAMES HARDIE NEW ZEALAND LIMITED
First Defendant
STUDORP LIMITED
Second Defendant(Continued next page)
Hearing: 3 November 2022 Counsel:
No appearance for Plaintiffs
J E Hodder KC, J A McKay for Defendants K M Wilson for the Applicant
Judgment:
11 November 2022
JUDGMENT (NO 12) OF WHATA J
This judgment was delivered by me on 11 November 2022 at 4.00pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors / Counsel:
Chapman Tripp, Auckland
WHITE v JAMES HARDIE NZ LTD [2022] NZHC 2965 [11 November 2022]
JAMES HARDIE NZ HOLDINGS LIMITED
Third Defendant
RCI HOLDINGS PTY LIMITED
Fourth Defendant
JAMES HARDIE AUSTRALIA PTY LIMITED
Fifth Defendant
JAMES HARDIE RESEARCH PTY LIMITED
Sixth Defendant
JAMES HARDIE INDUSTRIES PLC
Seventh Defendant
[1] This is an application under rr 8 and 11 of the Senior Courts (Access to Court Documents) Rules 2017 (the Rules) by Ms Young of NZME to have access to the evidence given at trial, together with any memoranda relating to the plaintiffs’ case after the trial commenced.
[2] It is an ambitious application given the nature, scale, and complexity of the proceeding. The proceeding spanned more than five years, involved several hundred plaintiffs, a litigation funder, seven defendants (including overseas resident companies), a discovery of more than 1.7 million documents, 72 minutes, 11 judgments, 36 briefs of evidence from the plaintiffs, 95 affidavits, a transcript of 3055 pages and a library of common bundles.1 The amount of evidence provided to the Court for this proceeding was so large that the Registry could not upload all the documents onto the High Court’s shared electronic storage platform. The proceeding was settled after about 12 weeks of hearing.2 The plaintiffs discontinued after presenting their case on 4 August 2021 because the parties settled. Therefore, there was no final decision. Further, the plaintiffs have not been contacted because the solicitor for them at the time of trial, Ms Thorn, is no longer the instructing lawyer for the plaintiffs. The litigation funder also has not been contacted. Ms Young’s application is made more than a year after the proceedings concluded.
[3] I have resolved to decline the application in its present form, save for orders directing access to specified documents (refer to [22] below). My reasons follow.
The application
[4]The application is succinct. It seeks:
Notes of evidence from the May trial in this proceeding.
Briefs of evidence for witnesses which came before the court at trial (ie we don’t need the ones before settlement occurred)3
Any minutes following the 65th minute of Whata J on the case.
1 The table of contents for the common bundles is 672 pages.
2 The hearing ran from 17 May 2021–30 July 2021.
3 In a teleconference on 3 November 2022, Ms Wilson confirmed Ms Young sought the briefs of evidence given at trial, and that the sentence from “(ie we don’t need...)” was incorrect.
Any memoranda filed following commencement of the trial, relating to the homeowners case (ie don’t need memoranda about the Metlifecare/Waitakere proceeding).
Any minutes which refer to suppression orders so that they can be followed.
[5] Under the heading “I want to look at these documents because”, Ms Young says:
Huge public interest in understanding how class action litigation works and how the homeowners [sic] case played out.
Material from the notes of evidence could have been witnessed/reported on by the public during the trial.
I am not currently interested in material relating to the Metlifecare/Waitakere proceeding.
[6] Under the section relating to any conditions on the right to access, Ms Young stated: “I will abide by any suppression orders.”
The evaluative threshold
[7] Section 173(1) of the Senior Courts Act 2016 provides “[a]ny person may have access to court information of a senior court to the extent provided by, and in accordance with, rules of court.” The Rules govern criminal and civil proceedings in all the senior courts.4 They give courts control over every request for access to documents in their court.
[8] Pursuant to r 8 of the Rules, every person has a right to access the formal court record relating to a civil proceeding. The formal court record includes “a register or an index” and “a judgment, an order, or a minute of the court, including any record of the reasons given by a Judge.”5 It does not include pleadings or affidavits.6
[9] Requests for documents that do not fall under the general right to access can be sought by any person by a written request to the Registry under r 11.7
4 High Court, Court of Appeal and the Supreme Court.
5 Senior Courts (Access to Court Documents) Rules 2017, r 4.
6 Crimson Consulting v Berry [2018] NZCA 460, [2019] NZAR 30 at [11].
7 Senior Courts (Access to Court Documents) Rules, r 11(2).
[10]As noted by the Court of Appeal in Crimson Consulting v Berry:8
[12] Access to documents that do not fall under the general right to access can be sought by any person by a written request to the Registry. There are certain matters which must be specified, including the reasons for asking for access to the document. The Registrar must give a copy of the request to the parties to the relevant proceeding and parties who wish to object must give written notice of that objection to the Registrar, setting out the grounds of objection. It is an informal procedure. The application is then put before a judge. The judge may grant or refuse a request or may grant a request subject to conditions. Alternatively, the judge may refer the request to a Registrar for determination by that Registrar.
[13] As Palmer J noted, under r 12 the judge “must consider the nature of, and the reasons for, the request” and take into account each of the matters set out that is relevant to the request or any objection to the request. Those matters are:
(a)the orderly and fair administration of justice:
(b)the right of a defendant in a criminal proceeding to a fair trial:
(c)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:
(d)the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person:
(e)the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions):
(f)the freedom to seek, receive, and impart information:
(g)whether a document to which the request relates is subject to any restriction under rule 7:
(h)any other matter that the Judge thinks appropriate.
(citations omitted)
[11] Rule 13 divides the proceeding into three stages and identifies a balancing process depending on the stage:
13 Approach to balancing matters considered
In applying rule 12, the Judge must have regard to the following:
8 Crimson Consulting v Berry, above n 6, at [12]–[13].
(a)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:
(b)during the substantive hearing, open justice has—
(i)greater weight than at other stages of the proceeding; and
(ii)greater weight in relation to documents relied on in the hearing than other documents:
(c)after the substantive hearing,
(i)open justice has greater weight in relation to documents that have been relied on in a determination than other documents; but
(ii)the protection of confidentiality and privacy interests has greater weight than would be the case during the substantive hearing.
[12] As the Court of Appeal in Crimson also stated, there is no hierarchy between the r 12 factors, however, the principle of open justice is fundamental to the common law system of civil and criminal justice.9 This principle means not only that judicial proceedings should be held in open court and be accessible by the public, but also that media representatives should be free to provide fair and accurate reports of what occurs in court.10 The related principle of freedom to seek and receive information is also particularly relevant when a member of the media is involved.11
[13] But these considerations must be carefully balanced against the orderly and fair administration of justice and the right to privacy. The former gives focus to the undesirability of interfering with access to justice through the courts by discouraging filing of proceedings because of the fear of damaging or embarrassing publicity. The right to be let alone and the protection of confidential information are also important principles to be weighed.12
9 Crimson Consulting v Berry, above n 6, at [32]. See also The New Zealand Animal Law Association v The Attorney-General [2020] NZHC 2376 at [8]; and Scheneker AG v Commerce Commission [2013] NZCA 114, (2013) 22 PRNZ 286 at [29] and [36].
10 Crimson Consulting v Berry, above n 6, at [33], citing Erceg v Erceg [2016] NZSC 310, [2017] 1 NZLR 310 at [2].
11 At [33].
12 At [35].
Assessment
[14] The application makes no real attempt at assessing these important matters. While the process is envisaged to be informal, in cases of the present scale and complexity, some careful attention needs to be paid to them. However, Ms Wilson, appearing for the applicant, made the following points in oral argument:
(a)The principle of open justice is engaged.
(b)There have not been many class actions of the present kind and there is heightened interest in them, exemplified by the recent release of the report of the Law Commission: Ko ngā Hunga Take Whaipānga me ngā Pūtea Tautiringa | Class Actions and Litigation Funding.13
(c)How the case unfolded, how the process worked and what played out before the Court is particularly important, and a detailed understanding of the evidence, as well as the Court documents, is necessary to report on these matters.
(d)Media already reported on the evidence, so to that extent privacy interests are already affected, but a clearer picture can be given now.
(e)NZME wishes to report on the proceedings in a fair and accurate manner and NZME can be expected to report responsibly on the case.
(f)NZME will abide by any relevant suppression orders and it is not necessary to redact any documents, provided the areas to be suppressed are identified.
[15] I acknowledge the force of these submissions, but I am not satisfied on the information available to me that I should make the orders sought. First, I am not clear about the purpose of the request. Ms Wilson was hesitant to narrow the scope of it,
13 Te Aka Matua Ture | Law Commission Ko ngā Hunga Take Whaipānga me ngā Pūtenga Tautiringa | Class Actions and Litigation Funding (NZLC R147, 2022). I note that I was a Law Commissioner at the time of the release of this report.
preferring to rely on the general public interest in how this case “played out”. I also understand her to be saying that the right and ability of the media to report should not be pre-empted in advance. The latter point is a strong one. But in a case like the present, potentially bearing on personal trauma and corporate reputation, some clarity is needed as to the reason for the request. This Court may wish to take a more cautious approach to reportage which is directed to the conduct of particular parties or the merits of their position than say reportage directed to process, or to advance the understanding of the law. If the former, then the need to hear from those affected parties is heightened, and the orderly administration of justice and privacy considerations are squarely in focus. This is particularly so when there is no final decision against which to benchmark the reportage on such matters.
[16] Second, privacy considerations identified at r 13(c) and (d) of the Rules are not adequately addressed, if at all, by the application. There are multiple aspects to these privacy considerations, some procedural, some substantive:
(a)For reasons beyond the control of the Registrar, the plaintiffs have not been afforded the opportunity to comment as envisaged by the Rules and some of the evidence reveals personal trauma suffered by some of the plaintiffs.
(b)While it may not be reasonable to obtain the consent or advice of all the plaintiffs, it is reasonable to try to obtain the views of those plaintiffs who gave evidence, especially of personal trauma.
(c)The privacy interests in this case have greater weight because there has been no determination, and a substantial amount of time has elapsed since the hearing.
(d)Some of the defendants’ evidence is commercially sensitive. How this is identified and then handled needs to be addressed. It is not sufficient, particularly in a case of the present scale and complexity, to simply leave it to court to sift through the court record to identify those parts that are or should be subject to suppression orders. In this regard,
review by the applicant of the court record of suppression or admissibility orders in advance of the application for the evidence, would have been a reasonable step to take so as to bring those aspects to the court’s attention, as well as discussion with counsel for the defendants in this case about these aspects.
[17] Third, the hearing was reported on during the trial. While this factor bears on privacy considerations in that they have already been compromised, it can also be said that the principle of open justice has been served when needed most, namely during trial.14
[18] Fourth, if the purpose of the request is to examine the merits of the claims, then I agree with Mr Hodder KC for the defendants that as only half the case was heard – that is, the plaintiff’s case – then it is doubtful that a full and accurate account of the merits can be reported. In this regard, the problem is exacerbated by the absence of cross-examination of the defendants’ experts, so the impression left by the record may skew favourably to the defendants’ case. Conversely, the defendants might reasonably complain that as their case was not heard at all other than through cross-examination, there is a risk of unfair reportage of their case. While clearly not a determinative factor by itself, this further highlights the need for careful consideration of the parties’ legitimate interest in being let alone having reached a settlement resolving their dispute.
[19] Fifth, I also agree with Mr Hodder that the prosaic yet important issue of disclosure of evidence – which was subject to challenge – needs to be addressed. If the application is to be properly advanced, this aspect will need to be resolved.
[20] Sixth, given the broad nature of the request (in combination with the lack of clarity as to the reasons for the request), it is difficult to assess whether, overall, the evaluative criteria favour access and, in particular, whether it is necessary to satisfy the principle of open justice. In this regard, no attempt was made to seek evidence by
14 In my minute (no.65) dated 24 May 2021, I granted Ms Young access to the opening submissions of the trial and invited the media to liaise with counsel about accessing the timetable of witnesses (at [4]).
person or subject matter (for example evidence by named individual, or as to causation, damage, quantum, fact, corporate, expert, or other potential categories). I also note that the request for briefs of evidence presumably includes parts of the common bundle referred to in the briefs and in cross-examination. That is a very substantial amount of information.
Result
[21] I decline the application as presently framed. However, Ms Young and NZME15 are entitled to access to the formal court record as of right including the court index, minutes, and the judgments. I have already granted Ms Young access to the opening submissions, and so extend that order to any further submissions made by counsel during the trial. I am also minded to grant access to the pleadings and the common bundle index. But as I have not heard from the parties on that, I simply invite submissions if access to those documents is not agreed.
[22] Together, these documents should provide sufficient insight into the proceedings to enable Ms Young to refine her application to address the issues identified in this judgment. In this regard, without in any way prejudging the matter, I also leave open the opportunity for a refined application by NZME, which:
(a)clarifies the reasons for the request. I note that if the reasons remain generically “how the homeowners’ case played out”, then the application will be determined accordingly.
(b)clarifies the evidence sought by NZME (including by reference to type of evidence and whether corresponding parts of the common bundle are also sought).
(c)clarifies what steps have been or may be taken to obtain the views of the plaintiffs, especially those plaintiffs who gave evidence.
15 Including Ms Young’s legal counsel and advisors at NZME.
(d)identifies how privacy interests of the plaintiffs might be addressed, including the evidence relating to the trauma allegedly suffered by the plaintiffs.
(e)better identifies how commercially sensitive evidence might be addressed.
(f)better identifies how evidence subject to challenge should be addressed.
[23] Finally, if the focus of the request is to report on how a class action works, the pleadings, the hundreds of pages of court and bundle indexes, the 72 minutes and now 12 judgments, together with the submissions given at trial, as well as observations made during more than 12 weeks of trial, should provide a very good starting point for such reportage. It should also enable a much more focused request for access to the court documents relating to this matter, which fall outside the formal court record.
Whata J
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