HEART OF THE CITY INC v SWNEY [2015] NZHC 1250

HEART OF THE CITY INC v SWNEY [2015] NZHC 1250 [5 June 2015]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2014-404-003087[2015] NZHC 1250BETWEEN HEART OF THE CITYINCORPORATEDPlaintiffAND ALEX GORDON SWNEYFirst DefendantALEX GORDON SWNEY andANGELINE JANE MARSHALL astrustees of the COUNTRY STYLETRUSTSecond DefendantsALEX GORDON SWNEY andANGELINE JANE MARSHALL astrustees of the SWNEY-MARSHALLTRUSTThird DefendantsANGELINE JANE MARSHALLFourth DefendantHearing: On the papersJudgment: 5 June 2015JUDGMENT OF ASHER JThis judgment was delivered by me on Friday, 5 June 2015 at 1pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:Russell McVeagh, Auckland.S Anderson, Auckland.Grove Darlow & Partners, Auckland.E St John, Auckland.[1] The National Business Review has sought access to documents from thiscourt file, in particular the statement of claim and statements of defence. They wantaccess so that they can write about the case in a comprehensive fashion, andunderstand the context. They say:This case follows Mr Swney's guilty pleas to tax evasion in relation to hiswork for Heart of the City. We say this is no ordinary private dispute,because it being taken by Heart of the City, which is funded through targetedrates.The criminal case has been widely publicised and there can be no prejudice to his case because he has pleaded guilty. While NBR understands thatallegations made in the Statement of Claim may be untested, being able toreport the Statement of Defence will balance this.NBR's position, noting that its readers as business people have been payingthese targeted rates, is that the public have a right to know the allegationsagainst this man and how he is defending them. Ratepayers have a right toknow how their money is spent.[2] Their application is opposed by the first and third defendants. The secondand fourth defendants and plaintiff abide the decision of the Court. The plaintiffnotes that the request for the pleadings may be premature, as not all the statements ofdefence are as yet filed.[3] Access to the documents on this file has been previously sought by anotherthird party, the Commissioner of Inland Revenue. That application covered a widerrange of papers than the present, but included a request to access the statement ofclaim. Duffy J declined the application.1[4] I take into account the matters set out in r 3.16 of the High Court Rules. Theprinciple of open justice has less relevance during the interlocutory stage of aproceeding, when it is not clear that the material filed in the court will ultimately beused in court.2 Moreover publicity of the detail of court proceedings at an earlystage may aggravate disputes and make settlement more difficult for the parties,which is against the public interest.1 Heart of the City Incorporated v Swney HC Auckland CIV-2014-404-003087, 11 March 2015.2 ASB Bank Ltd v Commissioner of Inland Revenue [2014] NZHC 2391 at [4].[5] However, the principle of open justice, in particular the importance of thepublic being aware of the business of our courts, favours the disclosure of the namesof parties and the basic pleadings in civil proceedings. The purpose of pleadings isto set out the key facts and elements relied on by each side.3 Access to thestatements of claim and defence will enable the public to understand the issues thatare being litigated. Access will, however, always turn on the nature of the particularpleading. A pleading which sets out only the broad matters of fact and allegationsrelied on is less likely to give rise to any unfairness or misinterpretation than astatement of claim that contains detailed allegations of contested facts. In CommerceCommission v Air New Zealand access was not given to the statement of claimbecause of the detail and the presence of confidential or sensitive material.4[6] Fairness would also dictate that if access is given to the pleadings, thestatements of claim and defence should all be available so that whoever is readingthem or reporting on them can obtain a fair and balanced picture of the issues.Otherwise there will be access to just one side of the story. Until the pleadings ofboth sides are filed, the application may be premature.[7] In relation to this application there appears to be no good reason why thereshould not be access to the pleadings. The plaintiff does not assert that the statementof claim contains confidential or sensitive material and abides the decision of theCourt, as do the second and fourth defendants. However, balance requires that thisaccess should be provided only when all the pleadings have been filed. There arestill statements of defence to be filed by the second and third defendants by 15 June2015.[8] For the reasons set out by Duffy J, I would not be minded to order access tothe other detailed documents that were filed in support of interlocutory orders at thispoint, and indeed this is not sought. However, I am prepared to direct that there beaccess to the statements of claim and defence from 16 June 2015. I reserve leave tothe parties to apply for further directions.3 Commerce Commission v Air New Zealand Ltd [2012] NZHC 271 considered by the Court ofAppeal in Schenker AG v Commerce Commission [2013] NZCA 114.4 At [51].Result[9] I direct that access be provided to the National Business Review of theamended statement of claim and the statements of defence after 15 June 2015.[10] I reserve leave to any party to apply to seek further directions...Asher J