FONTEIN V BANK OF NEW ZEALAND HC AK CIV-2009-404-7769

FONTEIN V BANK OF NEW ZEALAND HC AK CIV-2009-404-7769 13 September 2010IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2009-404-7769UNDER The Insolvency Act 2006 IN THE MATTER OF the Bankruptcy of Patrick Marinus Fontein BETWEEN PATRICK MARINUS FONTEIN Judgment Debtor AND BANK OF NEW ZEALAND Judgment Creditor Hearing: (on papers) Judgment: 13 September 2010 at 4.30 p.m.JUDGMENT OF ASSOCIATE JUDGE DOOGUE [concerning Evidence and Media Access]This judgment was delivered by me on13.09.10 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar DateCounsel:Mr David Connor, P O Box 3897, Auckland - david.connor@davidconnor.co.nz Mr Scott Barker, Buddle Findlay, Wellington – scott.barker@buddlefindlay.com Ms Anne Gibson, Property Editor, The New Zealand Herald – anne.gibson@nzherald.co.nz[1] An application has been made by Anne Gibson, the property editor of the New Zealand Herald, for access to Court documents. The application falls to be decided under R 3.11 of the High Court Rules. The judgment creditor does not oppose the application. [2] The judgment creditor however, while consenting to the application, requests that the Court make an order that media representatives such as Ms Gibson are granted access to all documents on the Court file on the express condition that such media give appropriate and balanced prominence to both the nature of the claim and the nature of the defence. I understand that the judgment creditor's wish arises from the fact that the documents which Ms Gibson identified in her application that she wanted to view were "BNZ statement of claim and affidavits". The judgment creditor is concerned that, in the interests of balance, Ms Gibson not restrict herself to those documents. [3] Rule 3.16 sets out a number of matters that are to be taken into account in deciding an application of this kind. Included is:(c) The principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, Court hearings and decisions.[4] It is important in my view to understand that this provision was inserted into the rules to provide guidance on the question of whether the Court should make an order for access to documents on the Court file. It was not intended to also control the indirect consequences of making such an order which might include that a media representative would, after sighting documents on the Court file, decide to produce a publication. That is to say, I do not consider that it was an objective of the rule that the Court should have power to give directions to the media as to the quality and nature of the media coverage that they should give to the proceedings in which orders for access are made. It would be surprising in my opinion that in reliance on subordinated legislation designed to regulate the procedures of the High Court, the Court could make orders trenching on basic rights of freedom of expression, underpinned as they are by s 14 of the New Zealand Bill of Rights. In my view the reference to the principles of open justice and fair and accurate reporting in the rules are founded on the assumption that granting access to Court files will be conduciveto those socially valuable objectives being attained. But they do not confer upon the Court the added duty of ensuring that beyond the stage where the right to inspect has been exercised, the Court should have a responsibility to make sure that what indirectly results is actually fair and accurate reporting etc. [5] In other words, the presence in the rules of the various criteria under r 3.16 is to provide guidance to the Court on how it should exercise its decision, and is not there to provide guidance to the Court on how it should control any reporting by the media which may indirectly result from the media exercising their rights to inspect the Court file. [6] It is not necessary to consider the difficulties that might arise if a complaint was subsequently made that the reporter did not comply with the conditions on which access to the file was granted. Difficult issues could arise though. [7] I surmise that the way in which the classes of documents are described in Ms Gibson's application do not reflect a conscious choice on her part to restrict herself only to the limited range of documents that she has referred to. It is my intention to in fact give leave to her to have access to the Court file generally in terms of r 3.11 and I order accordingly. [8] I make the orders that Ms Gibson has sought. _____________ J.P. Doogue Associate Judge