FUJI XEROX NZ LTD v WHITTAKER [2018] NZHC 1043

FUJI XEROX NZ LTD v WHITTAKER [2018] NZHC 1043 [14 May 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-002073[2018] NZHC 1043BETWEEN FUJI XEROX NEW ZEALAND LIMITEDFirst PlaintiffFUJI XEROX FINANCE LIMITEDSecond PlaintiffFUJI XEROX ASIA PACIFIC PTELIMITEDThird PlaintiffAND NEIL WHITTAKERFirst DefendantMARK DONALD ALLRIGHTSecond DefendantGAVIN POLLARDThird DefendantHearing: [On the papers]Appearances: K C Francis for PlaintiffsA M Callinan for First DefendantD P Hoskin for Second DefendantS M Hunter for Third DefendantJudgment: 14 May 2018JUDGMENT OF JAGOSE JThis judgment is delivered by me on 14 May 2018 at 4.30 pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarIntroduction[1] The law firm, Gibson Sheat, asks to access documents in relation to the presentproceeding, currently in interlocutory phases. The documents are "the Statement ofClaim and the proceedings index".Access to court documents[2] Access to court documents is controlled by the Senior Courts (Access to CourtDocuments) Rules 2017. People may obtain access to court documents either by right,or with the Court's permission, but in either case (as may be relevant here) subject toany limit or prohibition imposed by the Court.1[3] Rule 8(1) gives "[e]very person the right to access the formal court recordrelating to a civil proceeding". Rule 4 defines:(a) 'civil proceeding' as meaning "any proceeding other than a criminalproceeding; and does not include an interlocutory application"; and(b) 'formal court record' as relevantly meaning "any of the following keptin a registry of the court: (a) a register or an index ".[4] If Gibson Sheat has no relevant general right to access documents, r 11otherwise applies to its request. Under r 11(2), the person asking to access anydocument must provide "[a] written form of request that":(a) identifies the person and gives the person's address; and(b) sets out sufficient particulars of the document to enable the Registrar toidentify it; and(c) gives reasons for asking to access the document, which must set out thepurpose for which the access is sought; and(d) sets out any conditions of the right of access that the person proposesas conditions that he or she would be prepared to meet were a Judge toimpose those conditions (for example, conditions that prevent or restrictthe person from disclosing the document or contents of the document,or conditions that enable the person to view but not copy the document).1 Senior Courts (Access to Court Documents) Rules 2017, rr 5 and 6.[5] Subject to a judge's dispensation with the requirement, r 11 also requires theRegistrar to copy requests for access to documents not covered by general rights to theparties to the relevant proceeding, to enable their timely objection.Gibson Sheat's request[6] Gibson Sheat's request is ambiguous as to whether it is seeking access foritself, or for a client. Its explanation is:We act for a client who is currently in a dispute with Fuji Xerox. Based onpublicly available reports detailing the plaintiff's claims against thedefendants in the [present] proceeding, we reasonably apprehend that theStatement of Claim will contain allegations relevant to the dispute betweenour client and Fuji Xerox.[7] The Registrar copied Gibson Sheat's request to the parties, each of whomprovided written objection to the request:(a) the plaintiffs say the request is "'broadly cast and vague' in the sensecriticised by the Court of Appeal in Schenker AG v CommerceCommission".2 They are concerned it is "a fishing expedition". Theysay the claim contains commercially sensitive and personalinformation. They contend, inferentially by reference to the indicated"dispute", Gibson Sheat is attempting "to circumvent the requirementsof the High Court Rules for obtaining discovery in ordinary civilproceedings". And they rely on my 9 February 2018 judgment in thisproceeding, in which I declined another person's application for accessto the pleadings as "premature, at least until the pleadings arefinalised"; and(b) the defendants support the plaintiffs' reasons for opposing GibsonSheat's access. The second defendant includes correspondence withGibson Sheat, in which Gibson Sheat minorly expanded on itsexplanation to the Court:We act for a client who is in a commercial dispute with FujiXerox. Our client believes there have been aspects of the way2 Schenker AG v Commerce Commission [2013] NZCA 114, [2015] NZAR 1561 at [33].Fuji Xerox has managed its account and relationship with itthat may parallel the allegations contained in the Statement ofClaim about the way some Fuji Xerox staff have operated.Analysis—access to the proceedings index[8] It is not entirely clear what r 4 means by "a register or an index". None of theduties or powers of the Registrar – who is appointed under s 33 of the Senior CourtsAct 2016 – expressly require the keeping of a register or index in a registry of the courtas the formal court record.3 The High Court Rules only require the Registrar to 'keep'lists of proceedings either that have had their first case management conference, orhave been allocated a hearing or trial date (the latter also to record the close ofpleadings date),4 and "an appropriate record book" in which to register judgmentsunder the Reciprocal Enforcement of Judgments Act 1934. There does not appear tobe any other relevant statute or regulation.[9] Plainly "a register or an index" has to be given some contextual meaning. Itcannot mean any register or index that happens to be kept in a registry – for example,the index of registry staff contact details, or a register of workplace accidents andincidents. That much is clear from the Rules' reference to the register or index as partof the formal court record. The definition otherwise includes formal notices,judgments, orders, minutes, the permanent court record under Part 7 of the CriminalProcedure Rules 2012, and the rolls of barristers and solicitors kept under s 56 of theLawyers and Conveyancers Act 2006.[10] Notably absent from the definition is pleadings, the documents filed, in civilproceedings: notices of proceeding; statements of claim and defence; originating andinterlocutory applications; affidavits; memoranda; etc. Rules 6 and 7 appear to identifya hierarchy of increasing generality from "a document", to "a court file", to "the formalcourt record". Rule 4 defines 'document' in a civil proceeding as:3 Section 33 enables appointment of a "Registrar for the conduct of the business of the HighCourt", with duties and powers either conferred by any enactment or the High Court Rules, or"necessary or desirable to ensure the efficient and effective administration of the business of theHigh Court".4 High Court Rules, rr 7.12 and 7.13.(i) mean[ing] any written material in the custody or control of the courtthat relates to the proceeding (including any interlocutory applicationassociated with the proceeding), whether or not it is kept on a court file;and(ii) includes documentary exhibits, video recordings, records in electronicform, films, photographs, and images in electronic form .and 'court file' as:mean[ing] a collection of documents in the custody or control of the court thatrelate to a civil proceeding or a criminal proceeding (including aninterlocutory application associated with the proceeding) or an appeal.I take the view, by "a registry or an index", the Rules meant to include any list of thosedocuments or court files.[11] Formerly, the registry maintained a register, into which was entered the civilproceedings filed in each court's registry. It was effectively a list of the registry's courtfiles. And each court file contained an index of the documents collected in it. Now theMinistry of Justice maintains a record of each registry's operation in an electronicdatabase, known as CMS, from which may be generated user-defined lists of itscontents. Among those is a document styled 'Register of documents filed', which isproduced for each civil proceeding.[12] I interpret Gibson Sheat's request for access to the "proceedings index" to beto the register of documents filed in the present proceeding.[13] As a register kept in the registry of the court, subject to any applicablelimitation or prohibition, Gibson Sheat has the right to access the register as part ofthe formal court record.[14] I have reviewed the proceeding's register of documents filed. In terms of r 5, Icannot identify any qualification on, or reason to qualify, Gibson Sheat's access to theregister.—access to the statement of claim[15] I apprehend Gibson Sheat's only reason for seeking access is on its client'sbehalf. If so, r 11(2)(a) is to be understood as requiring identification of its client andgiving the client's address.[16] Further, Gibson Sheat's explanation does not set out the purpose for which theaccess is sought, as required by r 11(2)(c). The 'purpose for which access is sought'should be articulated in a way that allows me to weigh "the nature of, and the reasonsgiven for, the request" in terms of the relevant factors set out at r 12, and against themandatory countervailing factors of "the protection of confidentiality and privacyinterests and the orderly and fair administration of justice" in r 13. I cannot make thatassessment from Gibson Sheat's unparticularised apprehension (however"reasonable") the claim's allegations are indeterminately relevant to some unspecifieddispute its anonymous client is said to have with Fuji Xerox.[17] Gibson Sheat's advice to the second defendant makes out the plaintiffs'characterisation of the request as a "fishing expedition" – looking for, rather than at,the object of its interest – but that is not in itself disqualifying of its request. Neitheris my earlier refusal of access determinative of Gibson Sheat's request here. But theparties' other objections are well made, and Gibson Sheat's request sets out noproposed conditions of the right of access by which the objections could be met. Givenr 11(2)(d) requires an access seeker to set out any conditions it would "be prepared tomeet were a Judge to impose those conditions", I might infer Gibson Sheat has noconditions to propose, or is not prepared to meet any such conditions.[18] Given Gibson Sheat's request does not meet the minima for consideration, Iam not prepared presently to grant it access to the statement of claim.Result[19] I direct the registrar to give Gibson Sheat access to the register of documentsfiled in the present proceeding, subject to:(a) the registrar's confirmation nothing in the register is "subject to anyenactment, court order, or direction limiting or prohibiting access orpublication";5 and(b) Gibson Sheat's payment of any prescribed fee.6[20] Under r 11(8), I refuse Gibson Sheat's request for access under r 11 to thestatement of claim solely for the reason the request does not comply with r 11(2)(a),(c), and (d).—Jagose JSolicitors:Meredith Connell, Auckland (Plaintiffs)Simpson Grierson, Auckland (First Defendant)Steindle Williams Legal, Auckland (Second Defendant)S M Hunter, Barrister, Auckland (Third Defendant)Copy to:D Calder, Gibson Sheat, Auckland5 Senior Courts (Access to Court Documents) Rules 2017, r 6(a).6 Rule 6(d).