BNZ BRANCH PROPERTIES LIMITED v WELLINGTON CITY COUNCIL [2021] NZHC 3013

BNZ BRANCH PROPERTIES LIMITED v WELLINGTON CITY COUNCIL [2021] NZHC 3013 [9 November 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2019-485-429[2021] NZHC 3013BETWEEN BNZ BRANCH PROPERTIES LIMITEDFirst Plaintiff BANK OF NEW ZEALAND Second PlaintiffAND WELLINGTON CITY COUNCILDefendant BECA CARTER HOLLINGS AND FERNER LIMITED First Third Party JOHN BARRIE MANDER Second Third PartyHearing: On the PapersCounsel: J Farmer QC, S A Shortall and P H Bremer for First and Second Plaintiff L J Taylor QC, A B Darroch and B J Sanders for Defendant M G Ring QC and T C Cleary for First Third PartyJudgment: 9 November 2021JUDGMENT OF ISAC JIntroduction[1] Vero Insurance New Zealand Ltd (Vero) seeks access to all pleadings and "supporting documents" filed in these proceedings, pursuant to r 11 of the Senior Courts (Access to Court Documents) Rules 2017 (the Rules).[2] In 2019 Bank of New Zealand Branch Properties Ltd (BNZ) commenced these proceedings against Wellington City Council. They relate to the failure and subsequent demolition of the Harbour Quays BNZ building as a result of the 2016 Kaikoura earthquake.[3] BNZ was a tenant in the Harbour Quays building. It claims that the Council was negligent in performing various statutory functions including its grant of a building consent and in issuing a code compliance certificate. Wellington City Council has in turn brought a third-party claim against Beca Carter Hollings & Ferner Ltd (Beca), who were the engineers responsible for the engineering design of the building. Beca applied to this Court to strikeout the third-party claim and in the alternative sought summary judgment, on the basis that the claim was time barred. Clark J dismissed Beca's application,1 and her decision is currently under appeal.[4] Vero was one of the insurers of the Harbour Quays BNZ building. In 2018, Vero, alongside its co-insurers, settled the building owner's insurance claim for $93 million dollars. It now seeks access to the pleadings and supporting documents. Vero says it should be provided access to these documents as it may have a cause of action against both Wellington City Council and Beca for their role in the failure of the Harbour Quays building. Allowing Vero access to the Court documents would "ensure the relevant related interests could be considered and would allow the just, speedy and inexpensive determination of related proceedings".[5] The application is opposed by the defendant Council and Beca. The plaintiff has not filed a memorandum in response to the application, so its position is unknown.The access framework[6] Rules 12 and 13 guide the Court in determining whether to grant access to Vero's request. I must consider the nature of, and reasons for the request and consider the matters listed in r 12, namely:(a) the orderly and fair administration of justice:1 BNZ Branch Properties Ltd v Wellington City Council [2021] NZHC 1058.(c) the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice:(d) the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person:(e) the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions):(f) the freedom to seek, receive, and impart information:(h) any other matter that the Judge thinks appropriate.[7] No one factor takes primacy over others. All relevant factors must be balanced against each other, with the weight to be given to each factor a matter of evaluation.2However, r 13 indicates that before the substantive hearing, protection of confidentiality and privacy interests and the orderly administration of justice may require that access to court documents be limited.3Analysis[8] Beca raises legitimate concerns about the scope of the documents sought by Vero. While pleadings are easily identifiable, it is unclear what Vero considers are "supporting documents". Beca submits that Vero may mistakenly consider the interlocutory notices of application and opposition are "pleadings", or it could be that Vero seeks any affidavits filed in support.[9] In seeking access to court documents, an applicant is required to set out sufficient particulars of a document to enable its identification. 4 I accept Beca's submission that Vero's request for "supporting documents" fails to provide any necessary particularity. Vero's application for access therefore falls to be considered as a request for access to the pleadings alone.2 Crimson Consulting Ltd v Berry [2018] NZCA 460, (2018) 25 PRNZ 447 at [16] and [32].3 Senior Courts (Access to Court Documents) Rules 2017, r 13(a).4 Rule 11(2)(b).[10] Beca submits that providing Vero access to the pleadings would be contrary to the orderly and fair administration of justice. The proceeding is still in its preliminary stages. The parties are awaiting Beca's appeal against an interlocutory judgment of this Court dismissing its strikeout application. Discovery has not yet been completed. As a result it is certainly possible that the pleadings will be amended prior to the substantive hearing. I accept that to make the pleadings available at this juncture may provide Vero with a potentially inaccurate or incomplete overview of BNZ's claim, and the other parties' responses to it.[11] Beca also submits that Vero should already have sufficient information to evaluate whether to pursue a claim. The relevant information would have been largely available to it at the time Vero settled the building owner's insurance claim. Further, the publicly available strikeout judgment released earlier this year provides an overview of the present claim and the parties involved. 5 This overview establishes the cause of action and the quantum of damages sought by BNZ (over $100 million.) Material facts (albeit centred on Beca's position) are also canvassed at [18]–[26] of that judgment.[12] Both Wellington City Council and Beca note that any proceeding initiated by Vero would amount to parallel litigation. This Court has previously noted that requesting access for the purpose of providing support for parallel litigation is not a particularly compelling request. 6 In Cridge v Studorp, the Court declined an applicant's comprehensive access request in aid of parallel litigation, granting access solely to the pleadings at the commencement of the trial.7 In that case, the third party seeking access had already brought separate proceedings against the defendants. They sought access to Court documents in another proceeding to assist with their preparation of their own claims.5 BNZ Branch Properties Ltd v Wellington City Council, above n 1.6 BNZ Investments Ltd v Commissioner of Inland Revenue (2009) 20 PRNZ 311 (HC) at [38].7 Cridge v Studorp Ltd [2020] NZHC 1836.[13] Simon France J observed that access requests to support separate proceedings may have an adverse effect on the administration of justice:[20] in relation to efficiencies, it is difficult to see that parallel proceedings of this type should be encouraged. They appear at this point to be occupying a large amount of judicial and court resource, and there must inevitably be considerable duplication. To the extent that granting this sort of access will encourage parallel proceedings of this type, in my view the application should be resisted.[14] Weighing up all relevant factors, it is not appropriate at this early stage to provide Vero access to the pleadings. They are liable to be amended following discovery and may provide a misleading impression. And, more fundamentally, they contain nothing more than unproven allegations of fact. Their value as evidence on which Vero might rely when considering whether to advance its own claim is, at best, limited.[15] I consider confidentiality and privacy interests, and the right under r 12(c), are the primary considerations here. The judgment of the Court dismissing Beca's strike- out application provides Vero with a good deal of information about the pleadings, at least insofar as they concern Beca and the Council. And the Court of Appeal is yet to determine Beca's appeal which, if successful, would bring an end to the proceeding at least as far as it concerns the third parties.[16] Finally, I doubt the Rules were intended to promote further litigation by providing would-be plaintiffs with access to potential evidence. That approach would not be conducive to the orderly and fair administration of justice, a matter the Court is required to have regard to in terms of r 12.[17] The principle of open justice is afforded greater weight at the substantive hearing of proceedings. 8 It may be that an application for documents at a later stage may have better prospects of success. But my overall assessment is that the balance is clearly against granting access at this time.8 Senior Courts (Access to Court Documents) Rules 2017, r 13(b).Orders[18] The application is declined.Isac JSolicitors:Minter Ellison Rudd Watts, Wellington, for PlaintiffsDarroch Forrest, Wellington for DefendantChapman Tripp, Wellington for First Third Party