SCOTT v ANZ BANK NEW ZEALAND LIMITED [2019] NZHC 1908

SCOTT v ANZ BANK NEW ZEALAND LIMITED [2019] NZHC 1908 [7 August 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2019-485-376[2019] NZHC 1908BETWEEN MARY ELIZABETH SCOTTFirst PlaintiffJOHN ROBERT DOUGLASSecond PlaintiffGRAY STRATTON THOMPSONThird PlaintiffAND ANZ BANK NEW ZEALAND LIMITEDDefendantOn the papers:Counsel: J B M Smith QC and F J Cuncannon for PlaintiffsM Smith and I Rosic for DefendantJ Tibshraeny in personJudgment: 7 August 2019JUDGMENT OF CHURCHMAN J[1] By email dated 16 July 2019, Jenée Tibshraeny, a journalist with"interest.co.nz" asked the Registrar to provide her with a copy of the statement ofclaim in this matter. This request was forwarded by the Registrar to counsel for boththe plaintiffs and defendant.[2] Counsel for both the plaintiffs and defendant filed separate memoranda dated22 July 2019. Both opposed the application.[3] The position adopted by counsel for the plaintiffs was that the application waspremature and that any such application was best dealt with in the context of therepresentative orders application.1[4] The memorandum filed by counsel for the defendant was more comprehensive.It submitted that the request should be declined for the following reasons:(a) first, the request does not comply with the minimum proceduralrequirement set out in r 11 of the Senior Courts (Access to CourtDocuments) Rules 2017 ("the Rules");(b) second, the Court's general practice has been not to allow access to thepleadings until, at a minimum, both parties' pleadings are available toallow a balance reporting. The application is premature on any view;and(c) third, at this very early stage of the proceeding, it is not appropriate torelease the statement of claim, given the serious and untested nature ofthe allegations made in it, and the need to adequately protect the orderlyand fair administration of justice.[5] The legal propositions relied on were:(a) the application is governed by the Rules;(b) the statement of claim is not part of the formal Court record (r 8), andinterest.co.nz is not a party to the proceeding (r 9). Accordingly, theapplicable rules are rr 11 to 14;(c) rule 12 sets out the mandatory relevant considerations for the Court inconsidering access;1 In reliance on Strathboss Kiwifruit Limited v Seeka Kiwifruit Industries Limited [2015]NZHC 1596 at [77].(d) under r 13(a), as this application is made before the substantive hearingstage "the protection of confidentiality and privacy interests and theorderly and fair administration of justice may require that access todocuments be limited"; and(e) the exercise is evaluative, not discretionary: Crimson Consulting Ltd vBerry [2018] NZCA 460 at [18]-[31].[6] The memorandum noted that the applicant had failed to give reasons for askingfor access to the document, or indicate the purpose for which access was sought,thereby failing to comply with r 11(2)(c) of the Rules.[7] Counsel for the defendant agreed with counsel for the plaintiffs that theapplication was premature, and that the Court's general practice was not to allowaccess to the pleadings until, at a minimum, both parties have filed substantivepleadings.2[8] Counsel also noted that the statement of claim contained serious and untestedallegations about the defendant's conduct, and those allegations were denied and willbe strongly contested.[9] It was submitted that because of the nature of the allegations, the Court shouldnot give non-parties access to the statement of claim while the allegations in itremained untested.[10] Counsel referred to the requirement in r 13(a) of the Rules which provides thatin the period prior to the substantive hearing "the protection of confidentiality andprivacy interests and the orderly and fair administration of justice may require thataccess to documents be limited".[11] In response to the grounds of opposition advanced by the parties,Ms Tibshraeny sent another email to the Court dated 5 August 2019. That emailexplained what the interest of the applicant was in obtaining a copy of the pleadings2 Referring to Fuji Xerox New Zealand Limited & Ors v Whittakers & Ors [2018] NZHC 78 at [6].referring to both open justice and the public interest. The email did not address theissue of whether the application was premature given that it preceded the filing by thedefendant of its defence, or the argument that the nature of the untested allegationswas such that the orderly and fair administration of justice required the application tobe declined.Analysis[12] The Court's general practice is not to allow access to pleadings until, at aminimum, both parties have filed substantive pleadings.3[13] As the Court of Appeal said in Crimson Consulting Ltd v Berry:4[39] []When matters are still at the pleadings stage, there is an elementof unfairness on parties in the publication of one side of the story. Theallegations in the statement of claim have not yet been tested by the giving ofevidence. There being no hearing in Court, the need for transparency andpublic scrutiny is less, because pre-trial the Court is generally not determiningsubstantive issues.[14] The earlier judgment of the Court of Appeal in Greymouth Petroleum HoldingsLtd & Ors v Empresa Nacional Del Petroleo, it adopted a similar approach.5[15] I accept that given the untested and damaging nature of the allegations againstthe defendant, it is appropriate that access to the pleadings not be granted, at least untilafter the close of pleadings date.Conclusion[16] For these reasons, the application is declined. It may be renewed after the closeof pleadings date. At that point, the public interest and open justice may well requirethat the pleadings, or at least redacted versions of them, be disclosed.3 Fuji Xerox New Zealand Limited & Ors v Whittakers & Ors [2018] NZHC 78, above n 2 at [6].4 Crimson Consulting Limited v Berry [2018] NZCA 460.5 Greymouth Petroleum Holdings Ltd & Ors v Empresa Nacional Del Petroleo [2017] NZCA 490at [25].Churchman JSolicitors:Meredith Connell, Wellington for PlaintiffsGilbert Walker, Auckland for Defendantcc: J Tibshraeny