SCOTT v ANZ BANK NEW ZEALAND LIMITED [2020] NZHC 338

SCOTT v ANZ BANK NEW ZEALAND LIMITED [2020] NZHC 338 [28 February 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV 2019-485-376[2020] NZHC 338BETWEEN MARY ELIZABETH SCOTTFirst Representative PlaintiffJOHN ROBERT DOUGLASSecond Representative PlaintiffGARY STRATTON THOMPSONThird Representative PlaintiffAND ANZ BANK NEW ZEALAND LIMITEDDefendantOn the papersAppearances: J B M Smith QC and F J Cuncannon for PlaintiffsN R Campbell QC, I Rosic and H E McQueen for DefendantJudgment: 28 February 2020JUDGMENT OF MALLON J[1] The representative plaintiffs have brought civil proceedings against thedefendant, with whom David Ross, Ross Asset Management Limited and relatedentities held bank accounts. The defendant denies the claim and has applied to strikeit out. The strike out application is for hearing on 2 and 3 March 2020.[2] The following media applications have been made:(a) Mediaworks (film, photos, sound recording);(b) TVNZ (film, photos, sound recording);(c) Goodas Film Productions (film, photos, recording); and(d) RNZ (photos, film).[3] The representative plaintiffs abide the Court's decision on the mediaapplications. The defendant opposes the applications.[4] For the purposes of the High Court Rules 2016, and unless the context requiresotherwise, rule 1.3 defines "hearing in chambers" as meaning: a hearing that takes place in circumstances in which the general public isnot admitted, except with the leave of the Judge, and includes any conferenceheld under the rules.[5] Rule 7.34 provides that an "interlocutory application" for which a hearing isrequired "must be heard in chambers unless a Judge otherwise directs."[6] Rule 7.35 provides:Particulars of a hearing in chambers of an interlocutory application or of thedecision or both (including the reasons for the decision) may be publishedunless a Judge or Registrar, exercising jurisdiction in chambers, otherwisedirects.[7] Rule 1.3 provides that "an interlocutory application" means "an applicationmade in accordance with rule 7.19 or 7.41" and "interlocutory order" is defined asincluding "an order striking out the whole or any part of a pleading".[8] The usual approach to applications to film, photograph or record interlocutoryhearings is summarised in Smith v Claims Resolution Service Ltd:1[6] Interlocutory proceedings without more are generally heard inChambers in circumstances not open to the general public except with theleave of the Judge. However, r 7.35 provides that the particulars of a hearingin Chambers of an interlocutory application and the decision, includingreasons, may be published unless a Judge or Registrar directs otherwise.Generally, this is sufficient to meet the principles of open justice. As noted byWilliams J in Sagapolu v Commonwealth Securities Ltd, the rules give anindication that the hearing of interlocutory applications should not be publiclybroadcast unless there are good reasons for so doing.2 At the preliminary1 Smith v Claims Resolution Service Ltd [2018] NZHC 3180.2 Sagapolu v Comonwealth Securities Ltd (2002) 16 PRNZ 191 at [5].stage, principles of privacy and confidentiality have greater weight than at asubstantive hearing.[7] This view is also reflected by the approach taken to the granting ofmedia access to Court documents under the Senior Courts (Access to CourtDocuments) Rules 2017. The Court of Appeal recently stated in that context:3Prior to the hearing there is no guarantee the case will go to hearingat all. Therefore open justice has less weight. The parties are entitledto the protection of confidentiality and privacy within reasonablelimits, given that they have not at that point aired the dispute in public.After the substantive hearing the need for public scrutiny diminishesin importance as time moves on. Parties are entitled to expect that theneed for open justice has been met by full access during thesubstantive hearing stage, and that personal information not part ofthe formal court record or the decision will be given greater protectionas the years go by. This is particularly so in a civil case as distinctfrom a criminal case where these considerations, while relevant, mayhave less weight because of the particular public interest in criminalprosecutions.[9] A strike out application is an interlocutory application but, unlike otherinterlocutory applications, it can result in the proceeding coming to an end. For thatreason, there can be heightened and legitimate public interest in the hearing of thatapplication than may often be the case with other interlocutory applications. Thenumber of media applications for the hearing of this strike out application is illustrativeof this.[10] In support of its application, TVNZ puts it this way:TVNZ submits that there are good reasons for this interlocutory application tobe publicly broadcast. The strike-out application relates to an action by thePlaintiffs, who represent over 550 people who collectively, lost more than$100 million in what has been described as "New Zealand's biggest Ponzischeme". Many are elderly. They are spread throughout New Zealand, withsome living overseas. Most will not be able to attend in Court in person. TVNZ submits the initial fraud the action by the Plaintiffs theDefendant's defence, including its strike out application – are of high publicinterest.[11] Open justice considerations are particularly compelling in this case because ofthe legitimate high public interest in this matter. If the defendant's application issuccessful there will be no substantive hearing (compared with Smith v ClaimsResolution Service Ltd where the interlocutory application concerned the3 Greymouth Petroleum Holdings Ltd v Empresa Nacional del Petróleo [2017] NZCA 490 at [25].representative party orders). I acknowledge the defendant has legitimateconfidentiality and privacy interests in the proceedings, which are at a preliminarystage and concern serious and untested allegations. Recognising these interests onapplication to access court records has earlier been declined.4 I also acknowledge theIn-Court Media Coverage Guidelines 2016 contemplate there will not be filming orrecording when a Judge is sitting in Chambers. The Court, however, retains adiscretion under the Guidelines as well as under the High Court Rules discussed above.If there are particularly sensitive, private or confidential matters to be aired, the Courtretains the power to order that those matters not be published. The defendant will havethe opportunity to seek non-publication of any such matters during the hearing.[12] I consider open justice must prevail in this case. I am granting the mediaapplications made by MediaWorks, TVNZ and RNZ subject to:(a) the standard conditions; and(b) the condition that any broadcast of the filming or audio recording, andany report of the proceeding, complies with any non-publication ordersthat may be made at or in relation to the hearing on 2 and 3 March 2020.[13] At this stage the application by Goodas Film Productions is declined becauseI do not have information about whether this applicant is subject to a code of ethicsand the complaints procedure of the Broadcasting Standards Authority, the PressCouncil or similar body.Mallon J4 Scott v ANZ Bank New Zealand Limited [2019] NZHC 1908.