SCOTT v ANZ BANK NEW ZEALAND LIMITED [2020] NZHC 3497

SCOTT v ANZ BANK NEW ZEALAND LIMITED [2020] NZHC 3497 [22 December 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV 2019-485-376[2020] NZHC 3497BETWEEN MARY ELIZABETH SCOTTFirst Representative PlaintiffJOHN ROBERT DOUGLASSSecond Representative PlaintiffGRAY STRATTON THOMPSONThird Representative PlaintiffAND ANZ BANK NEW ZEALAND LIMITEDDefendantOn the papersJudgment: 22 December 2020JUDGMENT OF MALLON J(Access to court documents)[1] Reweti Kohere from the National Business Review (NBR) applies for accessto the pleadings, interlocutory applications, notices of opposition, supportingaffidavits, memoranda of counsel, minutes and judgments on the Court file. Theapplication is made to assist the NBR to better understand the parties' positions, tofairly and accurately report on the proceedings, and to prepare opposition to non-publication orders and suppression orders if necessary.[2] The judgments and minutes of the Court are part of the formal record. Thereis no objection to their release. I confirm that they be may be released. The questionis whether access should be granted to the remainder of the items to which access issought.[3] An earlier application for a copy of the statement was claim was made byanother journalist. This was declined by the High Court (Churchman J) who said:1[15] I accept that given the untested and damaging nature of the allegationsagainst the defendant, it is appropriate that access to the pleadings not begranted, at least until after the close of pleadings date.Conclusion[16] For these reasons, the application is declined. It may be renewed afterthe close of pleadings date. At that point, the public interest and open justicemay well require that the pleadings, or at least redacted versions of them, bedisclosed.[4] The defendant (ANZ) submits that the current application similarly should bedeclined. It says the allegations made against it are serious and untested and, at thisstage of the proceeding, the orderly and fair administration of justice and ANZ'slegitimate confidentiality and privacy interests are entitled to weight. It notes that theplaintiffs have indicated an intention to amend the statement of claim followingdiscovery. It further notes that the proceeding is yet to have its first case managementconference following ANZ's unsuccessful strike out application. That conference isscheduled for 4 February 2021. It also notes there is an interim suppression order thatpresently applies to an affidavit filed in opposition to the strike out application.[5] The representative plaintiffs have no objection to the application. However,they do accept that confidential aspects of the statement of claim and those aspects ofthe affidavit over which there are interim suppression orders would need to be redactedand not provided to NBR. The representative plaintiffs submit that the considerablepublic interest and the fact that dispute has already been aired in public through thehearing and determination of the strike out application favour granting the request.[6] In an earlier judgment in which I granted media applications relating to thestrike out application I noted that open justice considerations in this proceeding areparticularly compelling.2 That, and the fact that the proceeding is relatively complex,support granting access to the pleadings prior to the substantive hearing.1 Scott v ANZ Bank New Zealand Limited [2019] NZHC 1908.2 Scott v ANZ Bank New Zealand Limited [2020] NZHC 338[7] On the other hand, the representative plaintiffs accept that redactions would benecessary if access were to be granted at this stage. It is not clear whether, withredactions, NBR would have any more information about the case than that which isset out in some detail in my judgment on the strike out application.3 Moreover, thepleadings are at a preliminary stage and amendments are intended after discovery.There seems little point in having the parties confer on appropriate redactions to anycourt documents to which access is to be granted if the pleadings are soon to beamended. There is also the possibility of unfairness to ANZ if there is to be reportingon allegations which are likely to be amended and when the judgment on the strike outapplication already details what is presently alleged.[8] My present view is therefore that the orderly administration of justicecontinues to favour declining access to the pleadings and other documents, other thanthe formal court record, at least at this stage. My present view is that access shouldbe granted once the pleadings have closed. I will review the matter at or after theupcoming conference. For now, NBR's application is declined.Mallon J3 Scott v ANZ Bank New Zealand Limited [2020] NZHC 338.