RE COWIE v BRUCE [2021] NZHC 1617

RE COWIE v BRUCE [2021] NZHC 1617 [16 July 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2016-409-1223[2021] NZHC 1617UNDER Senior Courts (Access to Court Documents)Rules 2017RE ADRIAN COWIEApplicantIN THE MATTER of a proceeding between JOANNETRACEY BRUCE, STEPHEN LESLIEBRUCE and LESLIE GORDONWILLETTS as trustees of the JO ANDSTEPHEN FAMILY TRUSTPlaintiffsAND IAG NEW ZEALAND LIMITEDDefendantAND ORANGE H MANAGEMENT LIMITED(formerly Hawkins Management Limited)(in receivership and in liquidation)First Third Partycontinued ..2Hearing: (Determined on the papers)Judgment: 16 July 2021JUDGMENT OF ASSOCIATE JUDGE LESTERThis judgment was delivered by me on 16 July 2021 at 12.00 pmPursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy Registrar16 July 2021AND ORANGE H GROUP LIMITED (formerly HawkinsGroup Limited) (in receivership and in liquidation)Second Third PartyAND QBE INSURANCE (AUSTRALIA) LIMITEDThird Third Party[1] The applicant, Mr Cowie, has applied for access to specific documents inproceeding CIV-2016-409-1223. The application is made under the Senior Courts(Access to Court Documents) Rules 2017 (the Rules).[1] As between the plaintiffs and the defendant, the proceeding is at an end. Ina judgment dated 20 December 2018, Mallon J determined liability in favour of theplaintiffs.1 The quantum was resolved at a settlement conference with costsdetermined by her Honour in a judgment dated 18 November 2020.2 The proceedingas it concerns the defendant and the third party remains unresolved.[2] Mr Cowie seeks a copy of the brief of evidence of the expert witness called bythe defendants, details of what he describes as a "BRANZ Publication", and copies ofthe transcript or submissions that refer to that publication.[3] The Registry has contacted counsel for the defendant, who do not oppose thesearch request. Indeed counsel has helpfully provided a copy of the report and advisedthat it can be found in the common bundle as document CB1633. Counsel for QBEhas no objection to the access request.[4] The report was produced in the proceeding between the plaintiffs and thedefendants. The Registry contacted counsel for the plaintiffs to see if there was anyobjection to the access request.1 Bruce v IAG New Zealand Limited [2018] NZHC 3444.2 Bruce v IAG New Zealand Limited [2020] NZHC 3051.[5] The plaintiffs opposed the request on a number of grounds including that theysigned a confidentiality agreement with IAG at the judicial settlement conference.Mr Cowie's request does not trespass on the matters covered at the judicial settlementconference – he only seeks access to material referred to in open court.[6] The plaintiffs do not want their case to be in the public eye again – they saythey want to move on. The plaintiffs also say if the request is granted it may haveconsequences (unspecified) for them in the future.[7] While I can understand the plaintiffs wanting to put the proceedings behindthem, I do not see how Mr Cowie's focused request can have any consequences forthem. The information he seeks does not concern the plaintiffs' private lives(a consideration under r 12(c)) of the Rules, nor is it confidential so as to engager 12(d). The BRANZ Report is not confidential. The plaintiffs' desire for privacy willbe addressed through the condition that will attach to Mr Cowie's access.[8] I am satisfied that the applicant, Mr Cowie, has a genuine reason for seekingaccess to the materials as required by r 11(2)(c). Mr Cowie has given expert evidencein a number of earthquake proceedings and he wishes to understand the evidencearound the particular BRANZ Report so that he will be able to fully meet hisobligations as an expert witness should the issue to which the BRANZ Report relatesarise in a future case. I consider Mr Cowie being able to explain, if required, theReport and how it was treated in the hearing is a relevant factor which I can haveregard to under rr 12(e) and 12(h) of the Rules.[9] Given the material sought was referred to in open court and in part ina judgment of this Court, and in the absence of any objections, I am satisfied none ofthe factors in r 12 warrant declining the application.[10] Accordingly, Mr Cowie's application is granted. The Registrar may supplya copy of the brief of evidence and the BRANZ Report to Mr Cowie.[11] The balance of Mr Cowie's application is a request for portions of the transcriptof evidence where the report is discussed and any other evidence or submission thatdescribes the publication or touches on it. Mr Cowie may have access to the Courtfile to identify the relevant passages in the file covered by his request, but it is not forthe Registry to carry out the type of review that would be required to identify the othermaterial sought by Mr Cowie. If Mr Cowie wishes to attend the Registry and inspectthe file, he may make arrangements with the Registry in that regard.[12] For the avoidance of doubt, leave does not extend to any settlement conferencepapers that may remain on the file.[13] It is a condition of granting access that Mr Cowie, in using the material heobtains from the file, is not to refer to the names of the plaintiffs unless the matterhe wishes to refer to is already in the public domain through the earlier judgments inthis proceeding being publicly available.______________________________Associate Judge Lester