COMMUNITY OF THE SACRED NAME SOCIETY OR TRUST BOARD v THE ATTORNEY-GENERAL [2019] NZHC 1572

COMMUNITY OF THE SACRED NAME SOCIETY OR TRUST BOARD v THE ATTORNEY-GENERAL[2019] NZHC 1572 [5 July 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2017-409-000930[2019] NZHC 1572BETWEEN COMMUNITY OF THE SACRED NAMESOCIETY OR TRUST BOARDPlaintiffAND THE ATTORNEY-GENERALDefendantAND PAUL SMITH EARTHMOVING (2002)LIMITEDThird PartyHearing: On the papersJudgment: 5 July 2019JUDGMENT OF NATION J[1] Church Property Trustees (CPT) own or controls properties on which hardfillhas been provided by Paul Smith Earthmoving (2002) Ltd (PSE). It says there areissues as to the contamination of those properties as a result of the hardfill. CPTunderstands that its interest in PSE's potential contamination of its properties is similarto that of the Community of the Sacred Name Society or Trust Board (the plaintiff) inthese proceedings.[2] In these proceedings, the plaintiff says that it was required by the CanterburyEarthquake Recovery Authority (CERA) to demolish buildings on land which theplaintiff owned and to remove and dispose of materials from the site, to replace theexcavated ground with fill and to cover the reinstated site with topsoil and grass. Italleges CERA commissioned a third party to undertake that work. It claims that, afterthe work had been carried out, it was invoiced $226,000 for the remediation work. Ithas subsequently been found there was asbestos contamination of the site. Theplaintiff claims $500,000 for the cost of remediating that contamination.[3] CERA's functions have been transferred by legislation to Land InformationNew Zealand (LINZ) hence the plaintiff's claim against the Attorney-General onbehalf of LINZ.[4] The Attorney-General has in these proceedings joined PSE as a third party onthe basis PSE was the third party contacted by CERA to carry out the groundremediation work on the plaintiff's site.[5] By letter dated 17 June 2019, solicitors for CPT have sought access to theformal court record in the proceedings CIV-2017-409-930 including all judgments,orders, or minutes of the Court, including any record of reasons, and the followingpleadings:(a) the statement of claim;(b) all statements of defence (including those to claims against third parties);(c) all statements of reply; and(d) all third-party notices and claims.[6] The solicitors for CPT have indicated they are willing to receive the requesteddocuments on the basis the documents will not be disclosed to any unrelated thirdparty, except for the sole purpose of seeking and/or obtaining legal advice.[7] The plaintiff and defendant in proceedings CIV-2017-409-930 have noobjection to CPT having access to the documents as sought. CPT's request is opposedby PSE.[8] The request is made under the Senior Courts (Access to Court Documents)Rules 2017.[9] Rule 8(1) states "every person has the right to access the formal court recordrelating to a civil proceeding".[10] In r 4, "formal court record" is defined to mean:(a) a register or an index:(b) a published list that gives notice of a hearing:(c) a document that—(i) may be accessed under an enactment other than these rules; or(ii) constitutes notice of its contents to the public:(d) a judgment, an order, or a minute of the court, including any record of thereasons given by a Judge:(e) the permanent court record under Part 7 of the Criminal Procedure Rules2012:(f) the rolls of barristers and solicitors kept under section 56 of the Lawyersand Conveyancers Act 2006 or any former corresponding enactment[11] The only such document on the Court file in these proceedings is a minute ofAssociate Judge Lester of 10 May 2019. CPT may have access to that document.[12] CPT's application for the pleadings is made under r 11. Rule 11(2) provides:(2) A person may ask to access any document by providing the Registrar ofthe relevant court registry with a letter, an email, or any other writtenform of request that—(a) identifies the person and gives the person's address; and(b) sets out sufficient particulars of the document to enable the Registrarto identify it; and(c) gives reasons for asking to access the document, which must set outthe purpose for which the access is sought; and(d) sets out any conditions of the right of access that the person proposesas conditions that he or she would be prepared to meet were a Judgeto impose those conditions (for example, conditions that prevent orrestrict the person from disclosing the document or contents of thedocument, or conditions that enable the person to view but not copythe document).[13] Rules 12 and 13 provide:Determining requests for access12 Matters to be consideredIn determining a request for access under rule 11, the Judge must consider thenature of, and the reasons given for, the request and take into account each ofthe following matters that is relevant to the request or any objection to therequest:(a) the orderly and fair administration of justice:(b) the right of a defendant in a criminal proceeding to a fair trial:(c) the right to bring and defend civil proceedings without the disclosure ofany more information about the private lives of individuals, or mattersthat are commercially sensitive, than is necessary to satisfy the principleof open justice:(d) the protection of other confidentiality and privacy interests (includingthose of children and other vulnerable members of the community) andany privilege held by, or available to, any person:(e) the principle of open justice (including the encouragement of fair andaccurate reporting of, and comment on, court hearings and decisions):(f) the freedom to seek, receive, and impart information:(g) whether a document to which the request relates is subject to anyrestriction under rule 7:(h) any other matter that the Judge thinks appropriate.13 Approach to balancing matters consideredIn applying rule 12, the Judge must have regard to the following:(a) before the substantive hearing, the protection of confidentiality andprivacy interests and the orderly and fair administration of justice mayrequire that access to documents be limited:(b) during the substantive hearing, open justice has—(i) greater weight than at other stages of the proceeding; and(ii) greater weight in relation to documents relied on in the hearing thanother documents:(c) after the substantive hearing,—(i) open justice has greater weight in relation to documents that havebeen relied on in a determination than other documents; but(ii) the protection of confidentiality and privacy interests has greaterweight than would be the case during the substantive hearing.[14] CPT says, for the reasons referred to, it has an interest in the CIV-2017-409-930 proceedings. It submits there is a presumption of disclosure that is to apply incivil court proceedings, especially in relation to pleadings, citing Erceg v Erceg andBNZ Investments Ltd v Commissioner of Inland Revenue.1[15] Counsel for PSE submitted Erceg is not authority for the presumption ofdisclosure in relation to pleadings. Counsel submitted Erceg did not engage the issueof access to the Court file.[16] Counsel referred to Palmer J's statement in FE Investments Ltd v Keddell:2 where a request for access is made before the substantive hearing, theprotection of confidentiality and privacy interests, and the orderly and fairadministration of justice may require access to documents to be limited.3Open justice has less weight prior to hearing when there is no guarantee thecase will go to hearing at all.4[17] In that case, Palmer J permitted the National Business Review access only tothe formal decision of Venning J and the statement of claim which was necessary toprovide context. Access to the remainder of the file was refused.[18] Counsel for PSE also referred to the judgment of Wild J in the High Court inBNZ Investments Ltd v Commissioner of Inland Revenue and his reference tocomments from judgments from Australia and the United Kingdom where it was said:5An application for permission to use the court file as a source of potentiallyuseful information to assist in other litigation does not engage the principle ofopen justice.[19] Wild J also said:[32] Thus, as in the United Kingdom; open justice is the paramountconsideration in determining access to Court files in Australia. As stated bySackville J in Seven Network Ltd and Anor v News Ltd and Ors (No 2) (2005)148 FCR 1 at [27], the corollary is that:1 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2]; BNZ Investments Ltd v Commissionerof Inland Revenue (2009) 20 PRNZ 311 (HC) at [33] and [36].2 FE Investments Ltd v Keddell [2018] NZHC 2516 at [9].3 Berry v Crimson Consulting Ltd [2017] NZHC 3026 at [17]-[18].4 Greymouth Petroleum Holdings Ltd v Empresa Nacional Del Petróleo [2017] NZCA 490, [2017]NZAR 1617 at [25].5 BNZ Investments Ltd v Commissioner of Inland Revenue, above n 1, at [31].[...] a convenient touchstone for determining the question of access by non-parties is whether the documents or other material have been admitted intoevidence.[33] If the documents in question have not been adduced in evidence, or havenot been read by the Court at some other (i.e. non evidentiary) stage, the moralimpetus behind 'open justice' does not apply, because the material neverentered the public domain.[20] PSE submitted that providing assistance to a litigant in an allegedly similarcase is not a ground for disclosure in terms of r 11(2)(c). PSE submitted that, instead,r 12(c) provided for the Court to take into account the right to defend civil proceedingswithout the disclosure of any more information about the private lives of individualsor matters that are commercially sensitive, than is necessary to satisfy the principle ofopen justice. Counsel submitted it is a fundamental principle that documents providedby a litigant in the course of discovery are not to be used by other parties for anypurpose other than the conduct of the particular litigation. Counsel argued thatallowing CPT access to the pleadings would inevitably result in the release ofinformation that would derive from that discovery.[21] PSE submitted the application for access should be declined because:(a) The proceedings are at an early stage. It is possible they will neverget to trial.(b) No documents have entered the public domain through the courtprocess.(c) The access is sought not in furtherance of the public interest but in theapplicant's own commercial interests.(d) The application exposes the Third Party to an unfair disadvantage inconducting its defence of the proceedings given that everything it does maybe used against it in completely unrelated proceedings.(e) The authorities and rules recognise a sharp distinction betweendocuments referred to in the course of a hearing in open court.[22] In response to the submission filed for PSE, CPT says that it is relevant:(a) CPT has agreed not to disclose the documentation to third parties (exceptfor the sole purpose of seeking and/or obtaining legal advice);(b) the application for the documentation is limited to the pleadings, not theevidence or discovery documents;(c) CPT is a charitable organisation based in New Zealand that owns land andbuildings for the benefit of the public. The provision of the documents isin the public interest;(d) CPT and PSE are not commercial competitors. There can be nocommercial prejudice to PSE; and(e) the alleged commercially sensitive material will likely need to be disclosedto CPT in the event CPT files proceedings against PSE. If the Court is stillconcerned with commercially sensitive material being disclosed, CPTwould accept access to the documents with the commercially sensitivematerial redacted.Analysis[23] Of the pleadings CPT seeks, these are on the Court file:(a) Plaintiff's statement of claim, dated 28 November 2017;(b) Amended statement of defence, dated 14 November 2018;(c) Reply to amended statement of defence dated 14 November 2018, dated29 November 2017 [sic];(d) Third party notice, dated 12 December 2018;(e) Defendant's statement of claim against third party, dated 12 December2018;(f) Statement of defence by third party to defendant's statement of claimagainst third party dated 12 December 2018 (includes defence to plaintiff'sstatement of claim), dated 14 February 2019;(g) Plaintiff's reply to statement of defence of third party dated 14 February2019, dated 28 February 2019; and(h) Defendant's reply to third party's statement of defence, dated 28 February2019.[24] I note that neither the plaintiff nor the defendant has any objection to thedisclosure of their documents.[25] CPT and its lawyers appear to be considering filing a claim that is similar innature, and involving the same defendant and third party, to the proceeding at hand.CPT does not have parallel litigation underway at this point. It has applied withreasonable specificity as to the documents it seeks, the purpose of its application, andthe agreed restriction on any further dissemination of the material aside from for thepurpose of obtaining legal advice.[26] The matters the Court must consider in deciding whether a request for accessto documents on a civil file should be granted as set out in r 12 replicate what used tobe in r 316 of the High Court Rules. Cases decided under those rules thereforecontinue to be relevant. A review of the cases under the current and previous regimesindicates that decisions tend to be case-specific. McGechan on Procedure goes so faras to say there is "no common theme in the cases" as to how the Court will respond torequests from applicants involved in similar litigation.6 It is a matter of weighing theconsiderations in rr 12 and 13 as they apply in the case at hand.[27] There is no hierarchy to the matters to be considered in deciding an applicationspecified in r 12. Contrary to both parties' submissions, open justice is not theparamount consideration.7 There is no presumption of disclosure. This is particularlyso before the proceedings have had the substantive hearing. Rule 13(a) provides thatthe protection of confidentiality and privacy interests and the orderly and fairadministration of justice may require that access to documents be limited when theproceedings have not yet reached trial. That is the case here. These considerations6 McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [SCD12.04].7 Both parties relied on BNZ Investments Ltd v Commissioner of Inland Revenue (2009) 20 PRNZ311 (HC). The High Court in Commerce Commission v Air New Zealand Ltd [2012] NZHC 271reviewed the differing approaches taken by BNZ Investments and Chapman v P (2009) 20 PRNZ330 (HC) and preferred the non-hierarchical approach taken in Chapman. This has been endorsedby the Court of Appeal in Schenker AG v Commerce Commission [2012] NZCA 245, (2012) 21PRNZ 167 and in Crimson Consulting Ltd v Berry [2018] NZCA 460, [2019] NZAR 30.must be weighed against the principle of open justice and the freedom to seek, receiveand impart information under rr 12(e) and (f).[28] While the principle of orderly and fair administration of justice is usuallyapplied in relation to the proceedings at hand, I consider it can be applied more widelyto include possible future proceedings. It is in the public interest that persons whomight have a similar interest in the issues which are already before the Court inproceedings with which they are not currently involved should be informed of whatprecisely is at issue in those proceedings. Thus, if they choose, they can takeadvantage of what might emerge from hearings in those proceedings which will beopen to the public and any judgment that might result from those proceedings. Ifparties with a proper interest in other proceedings can be better informed about whatis happening in those other proceedings, they may be able to more efficiently deal withwhat they perceive to be similar issues. In that sense, allowing access to the sort ofinformation in documents which CPT seeks here will encourage the orderly and fairadministration of justice.[29] In this case, there are no significant confidentiality or privacy or commercialsensitivity concerns, and those that exist can be managed by CPT's agreement not todisclose the information to any unrelated third party except for the sole purpose ofseeking and/or obtaining legal advice. Granting CPT access to the pleadings with thatrestriction will not result in undue publication about PSE's involvement in theproceedings, or the disclosure of commercially sensitive information to competitors.I do not accept that release of the documents requested will invariably result in therelease of information that would derive from discovery.[30] In GFD I LPP v Melview (Kawarau Falls Station) Investments Ltd,Winkelmann J granted access to the pleadings to a law firm representing plaintiffs inan existing parallel proceeding relating to the same property development.8 Theproceedings at hand were still to go to trial. The Judge refused access to all other8 GFD I LPP v Melview (Kawarau Falls Station) Investments Ltd (in receivership) [2012] NZHC677.requested documents as the law firm "had not shown any legitimate interest in thecontents of the file beyond the pleadings".9[31] In Fuji Xerox New Zealand Ltd v Whittaker, a law firm was denied access to astatement of claim in proceedings that were at an interlocutory stage.10 The firmclaimed that a client was currently in a dispute with the plaintiff in those proceedingsand considered that the statement of claim would contain allegations relevant to itsclient's dispute. Jagose J refused access because the law firm did not set out thepurpose for which access was sought, did not identify its client or give any detailsabout the claimed dispute, and did not set out any proposed conditions that mightattach to a right of access. The Judge considered that the request did not satisfy theapplication requirements under r 11, which meant he could not make a full assessmentof the request taking into account the considerations in rr 12 and 13.[32] Here, CPT has given details about its position and provided justifiable reasonsfor seeking access to the pleadings. CPT has proposed a condition that will limitaccess to the documents to CPT and its lawyers for the purpose of seeking or providinglegal advice. Any concerns about privacy and confidentiality, reputational damageand commercial sensitivity can be addressed through the condition I will impose. Inthese circumstances, it is appropriate to grant the application.[33] I accordingly allow CPT access to the documents as requested. Access isgranted on condition that Wynn Williams, the solicitors for CPT, and CPT will usethose documents only for the purpose of seeking, obtaining or providing legal adviceand will not be disclosed to any unrelated third party.Solicitors:Wynn Williams, ChristchurchParry Field Lawyers, ChristchurchPeter Dalziel, TemukaG M Brodie, Barrister, ChristchurchCrown Law, Wellington.9 At [16].10 Fuji Xerox New Zealand Ltd v Whittaker [2018] NZHC 1043.