Minister of Education v Carter Holt Harvey Limited [2020] NZHC 1871

Minister of Education v Carter Holt Harvey Limited [2020] NZHC 1871 [30 July 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2013-404-1899[2020] NZHC 1871UNDER Consumers Guarantees Act 1993, the FairTrading Act 1986, the Building Act 2004BETWEEN MINISTER OF EDUCATION ANDOTHERSFirst to Fourth PlaintiffsAND CARTER HOLT HARVEY LIMITEDDefendantAND AUCKLAND COUNCIL AND OTHERTERRITORIAL AUTHORITIES LISTEDIN SCHEDULE 1 TO THE FIRSTAMENDED STATEMENT OF CLAIM BYTHIRD DEFENDANT AGAINST FIRSTTO FIFTIETH THIRD PARTIESFirst to Fiftieth Third PartiesHearing: On the papersCounsel: N Flanagan, J Carlyon, L Farmer and V Fowler for plaintiffsD Salmon, M Heard, D Nilsson and H Bush for defendantJudgment: 30 July 2020JUDGMENT (No. 10) OF FITZGERALD J[As to request for access to Court file]This judgment was delivered by me on 30 July 2020 at 3pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors: Meredith Connell, AucklandLeeSalmonLong, AucklandTo: Adina Thorn Lawyers, Auckland (A Thorn)AND AUCKLAND COUNCIL AND OTHERTERRITORIAL AUTHORITIES LISTEDIN SCHEDULE 1 TO THE FIRSTAMENDED STATEMENT OF CLAIM BYTHIRD DEFENDANT AGAINST FIRSTTO FIFTIETH THIRD PARTIESFirst to Fiftieth Third PartiesIntroduction[1] The plaintiffs (collectively, the Ministry) sue Carter Holt Harvey Ltd (CarterHolt) in relation to what is alleged to be Carter Holt's inherently defective product"Shadowclad". Shadowclad has been used to clad a number of school buildingsaround New Zealand. The Ministry's claim relates to approximately 830 suchbuildings nation-wide. Carter Holt disputes its product is defective, and says theproblems experienced in the school buildings is caused by a range of construction,installation and design defects. A six month Stage 1 trial is due to commence beforeme on 3 August 2020.[2] In Paine v Carter Holt Harvey Ltd, the plaintiffs are the owners of144 residential buildings who also say Shadowclad is inherently defective and iscausing their buildings to leak (the Paine Proceedings).1 A Stage 1 hearing in the PaineProceedings is scheduled to commence in February 2022. While there are somedifferences between the two sets of proceedings, there is no doubt there are a numberof common factual and legal issues.[3] The Applicants seek access to the Court file in this proceeding, and orders thatthey be provided (in some instances on a "rolling basis") with copies of certaindocuments from the commencement of the Stage 1 trial on 3 August 2020. Therequest is somewhat sweeping in nature. The Applicants request:(a) copies of all documents from the Court file which fall within thedefinition of "formal court record", as defined in r 4 of the SeniorCourts (Access to Court Documents) Rules 2017 (the Rules);(b) "the right to inspect all documents on [this] file which are not subjectto any applicable confidentiality or privilege restrictions, and receivecopies of any documents requested" (emphasis added);21 Paine v Carter Holt Harvey Ltd CIV-2018-404-1143. I will refer to the plaintiffs in the PaineProceedings as "the Applicants" in the balance of this judgment.2 This request is limited to material relating to the plaintiffs and defendant in these proceedings;materials relating to third parties is not sought.(c) the right to receive copies of:(i) all opening and closing submissions in these proceedings afterthey are read in Court;(ii) all briefs of evidence after they are read in Court;(iii) the notes of evidence from the Stage 1 trial as they are produced;and(iv) any materials handed up to the Court during the Stage 1 hearing.The parties' response to the request[4] The Applicants' request has been provided to the parties for comment.The Ministry's response[5] The Ministry does not object, at least in broad terms, to the request, but saysthe following:(a) Access to the briefs of evidence, if granted, should be on the basis thatprovision only occurs in concert with the transcript and at the close ofthe evidence phase of the trial. The Ministry says that the briefs areonly part of a witness's evidence, and provision of them at the sametime as the (complete) notes of evidence will enable counsel to reviewthe transcript for accuracy before provision to the Applicants.(b) It objects to provision of the written submissions. While acceptingaccess to written submissions is sometimes granted to ensure accuratereporting of such submissions,3 there is no legitimate reason advancedin the Applicants' request as to why access to the written submissionsis required in this case for the purposes of the Rules. The Ministry also3 Electrix Ltd v Fletcher Construction Company Ltd [2019] NZHC 2678, (2019) 25 PRNZ 137 at[16].notes that written submissions are only "the starting point" of eachparty's case, being completed by counsel's oral (opening and closing)submissions at the hearing.[6] The Ministry is also concerned that provision of materials to the Applicantsdoes not unduly interfere with, or cause inconvenience during, the lengthy Stage 1trial. It therefore seeks a direction that, to the extent the request is granted, provisionof the relevant materials is to be facilitated by the Registry rather than by the partiesthemselves.Carter Holt's response[7] While Carter Holt is concerned at the sweeping nature of the access request, itstates it will take a pragmatic approach and therefore does not object to access beinggranted to:(a) the formal court record;(b) briefs of evidence after they have been read into evidence (andaccordingly subject to any necessary amendments as a result of rulingson admissibility);(c) materials handed up during the course of the trial (subject to anyrestrictions on matters such as confidentiality and privilege); and(d) the notes of evidence, once finalised.[8] Accordingly, and at least in relation to these materials, Carter Holt takesbroadly the same approach as the Ministry.[9] Carter Holt also says that the request for access to the remaining documents(such as all documents concerning all prior interlocutory applications) is not requiredby the principle of open justice and will not enhance the fair and orderly administrationof justice. Carter Holt is also concerned that the broad access sought will underminediscovery orders agreed and made in the Paine Proceedings, given the relevance ofdocuments filed in these proceedings has been considered and subject to considerablediscussion between the parties in the Paine Proceedings. Carter Holt notes that at nostage during the discovery process in the Paine Proceedings did the Applicants seekdiscovery of all documents on this file, and a broader scope of discovery in the PaineProceedings should not be achieved via a request to access the Court file.[10] Carter Holt is also opposed to access being given to the written submissions,though for slightly different reasons than the Ministry. Carter Holt says providing theApplicants with written copies of Carter Holt's opening and closing submissions willunfairly advantage the plaintiffs in the Paine Proceedings, given they will have a fullwritten version of Carter Holt's defence to the case in relation to Shadowclad well inadvance of Carter Holt receiving the Paine plaintiffs' own evidence or submissions inthe Paine Proceedings. Carter Holt says provision of the briefs of evidence and notesof evidence in these proceedings, once the evidential phase of the hearing is complete,is sufficient to ensure the orderly and fair administration of justice is met. Carter Holtalso notes that the Applicants, or their representatives, will be able to observe all opensessions of the trial in this proceeding, including when submissions are presented.[11] While the request for access does not specifically refer to the electroniccasebook in this matter, it is strictly captured by the request to inspect all documentson the Court file (given it has recently been filed with the Court). Carter Holt opposesaccess to the electronic casebook because it is not yet known which of thosedocuments will be relied on and produced during the hearing. In addition, alldocuments in the common bundle that are relevant in the Paine Proceedings will havebeen discovered in that proceeding in any event.[12] Carter Holt also notes that the most recent versions of the pleadings in this casehave already been discovered by it in the Paine Proceedings, and no reason has beenadvanced why earlier versions of the pleadings are required.[13] Finally, and like the Ministry, Carter Holt says that access to any documentsshould not be on the "rolling" basis sought by the Applicants, given the length of thetrial and the number of witnesses to be called, it would place a significantadministrative burden on the Registry and/or the parties.Approach[14] Access to court documents is governed by the Rules. Any person may applyto access any document on the Court file under r 11. A Judge may grant the request,with or without conditions, after considering the nature of, and reasons for, the requestand taking into account those of the factors listed in r 12(a) to (h) that are relevant (asto which see [16] below). As to the reasons for the request, there is no dispute thataccess to court documents for use or assistance in parallel litigation is prima facie alegitimate reason for seeking access to a Court file.4[15] Rule 13 sets out the approach to balancing the matters listed in r 12. Relevantlyfor the purposes of the present request, open justice has greater weight during thesubstantive hearing phase than at other phases of a proceeding, as well as greaterweight in relation to documents relied on in the hearing than other documents.Discussion[16] I consider the following matters from r 12 are relevant to the Applicants'request:(a) The orderly and fair administration of justice: This principle can beadvanced by those with an interest in parallel proceedings havingaccess to documentation in another file in which similar legal and/orfactual matters are to be determined. This principle is plainlyapplicable here.(b) The right to bring and defend civil proceedings without the disclosureof any more information about the private lives of individuals, ormatters that are commercially sensitive than is necessary to satisfy theprinciple of open justice: This principle is relevant because the present4 See for example GFD I LLP v Melview (Kawarau Falls Station) Investments Ltd (in rec) [2012]NZHC 1796; Minister of Education v James Hardie New Zealand Ltd [2013] NZHC 1872;Community of the Sacred Name Society or Trust Board v Attorney-General [2019] NZHC 1572[28]; and Sanofi-Aventis Deutschland GMBH v AFT Pharmaceuticals Ltd [2012] NZHC 1051,(2012) 21 PRNZ 130 at [6].request seeks access to all interlocutory materials in these proceedingssince they were commenced in 2013.(c) The principles of open justice and the freedom to seek, receive andimpart information: These principles will be relevant to most if not allrequests for access to a Court file. The principle of open justice attractsmore weight, however, in the context of requests for access by mediaorganisations who wish to report on the working of the court (ratherthan the basis for the present request, which is ultimately to advance aprivate interest).5 It is also relevant that the principle of open justicewill be given more weight in relation to documents admitted inevidence in the hearing than to other documents.6[17] Taking these matters into account, and conducting the balancing exerciserequired by r 13, I am satisfied that at least parts of the Applicants' request ought to begranted. Like the parties, however, I have some concern in relation to the broad andsweeping nature of the request, as well as the expectation that access to some materialswill be provided on a "rolling" basis. Given the nature of these proceedings and theStage 1 hearing itself, this would no doubt impose a quite significant and additionalburden on Registry staff during the course of the hearing. In my view, this risksdetracting from, rather than enhancing, the orderly and fair administration of justice.[18] Turning to the particular materials or documents already on the Court file:(a) Access is granted to all judgments and minutes issued by the Court inthese proceedings. These materials fall within the definition of "formalcourt record" to which the Applicants have a (prima facie) right ofaccess. However, the Applicants request copies of all such documents(that is, not only access). Given these proceedings have been on footsince 2013, there have been a large number of judgments delivered andan even larger number of minutes issued. I do not consider it is5 The principle of open justice in r 12 therefore expressly refers to the encouragement of fair andaccurate reporting of and comment on court hearings and decisions.6 Greymouth Petroleum Holdings Ltd v Impresa Nacional Del Petroleó [2017] NZCA 490, [2017]NZAR 1617 at [15] at [25].consistent with the orderly and fair administration of justice to requirethe Registry to undertake the very considerable task of copying allearlier minutes and judgments in these proceedings. This is particularlyso when all judgments will be available to the Applicants through theCourts of New Zealand website (or similar legal databases), and a largenumber of the minutes are likely to be wholly irrelevant to mattersarising in the Paine Proceedings. Access to the judgments and minutesis accordingly to be effected by the Applicants attending the Registryand reviewing the judgments and minutes issued in these proceedings.(b) Access to the pleadings is declined. The Applicants already have copiesof the most recent versions of the pleadings through their discovery inthe Paine Proceedings. No reasons have been advanced as to whyaccess to all earlier versions of the pleadings ought to be granted.Again, given the sheer size of the pleadings and the number of iterationsof them, arranging access to and/or copying all earlier versions (whichare now of no relevance to the matters to be determined at trial) wouldplace a significant burden on the Registry.7(c) I decline the present request to access all other documents on this file.By referencing "all other documents", the request extends to allmaterials relating to all previous interlocutory applications in theseproceedings. As noted, these proceedings were commenced in 2013.There have been numerous interlocutory applications and hearings.8The interlocutory applications will in large part be bespoke to theseproceedings. And again, all judgments delivered on the interlocutoryapplications will be available to the Applicants through publiclyavailable sources. I have also granted access to all minutes issued inthese proceedings. Retrieving and organising all of these materials foraccess will be a significant undertaking for the Registry. If, having7 Declining this aspect of the request is without prejudice to a renewed application for access toearlier versions of the pleadings, which would need to specify why such access is consistent withthe Rules.8 As can be seen, this is my tenth interlocutory judgment in these proceedings since I commencedcase managing them in late 2017.reviewed the judgments and/or minutes, the Applicants seek access toparticular interlocutory applications or related documents, a moretargeted request may be made.(d) For the reasons give by Carter Holt and summarised at [11] above, Idecline access to the full electronic casebook.[19] For completeness, while the request for access extends to all documentsmaking up the "formal court record", this extends to:9(a) a register or an index;(b) a published list that gives notice of a hearing; and(c) a document that may be accessed under an enactment other than theseRules or constitutes notice of its contents to the public.[20] I do not understand the Applicants to seek access to these aspects of the formalcourt record. Nor, on the materials presently before the Court, do I see how they couldbe of relevance to, or of use in, the Paine Proceedings in any event. And arrangingaccess to or copies of these aspects of the formal court record would also be asignificant undertaking for the Registry. I accordingly decline to grant access to thoseaspects of the formal court record summarised at [19] above. Leave is reserved,however, for the Applicants to bring this aspect of the request back before the Courtwith further information as to why access to this information is consistent with theRules.[21] In terms of materials to be generated by or produced in the Stage 1 trial itself:(a) I grant the request that copies of all briefs of evidence, after they havebeen read in court, are provided to the Applicants. For the reasonsadvanced by the parties, however, this is to be attended to (by theRegistry) at the close of the evidence phase of the hearing (which is9 Senior Courts (Access to Court Documents) Rules 2017, r 4.likely to be near the end of this year). In addition, only those copieswhich are signed by the witness in Court (and thus capturing anyamendments made to the briefs during evidence-in-chief) are to beprovided.(b) I also grant the request that a copy of the notes of evidence be providedto the Applicants. Again, however, this is to be attended to (by theRegistry) at the completion of the evidence phase of the hearing, andafter counsel have had a reasonable opportunity to review and makeany necessary amendments to the notes of evidence.(c) I decline the request for copies of all opening and closing submissionsafter they are read in Court. It is not clear that the detailed opening and(yet to be produced) closing submissions will be "read in court".Counsel's oral submissions may, for example, depart quite significantlyfrom the written materials. I also have some sympathy with CarterHolt's submission as to the forensic advantage to the Applicants byreceiving Carter Holt's full written opening and closing submissions inthis case before Carter Holt has received the Applicants' evidence (andsubmissions) in the Paine Proceedings. It will also be open to theApplicants to attend the Stage 1 trial, including during the presentationof submissions.(d) I decline the request to receive copies of any materials handed up to theCourt during the hearing. It is not yet known what materials might behanded up during the hearing and what restrictions, if any, might attachto them. It is not appropriate to deal with such a request in a vacuum.This request should therefore be revisited once the evidence phase ofthe proceeding is complete.Condition of access[22] The access granted by this judgment is on the condition that, other thanmaterials already in the public domain (such as judgments), the materials are to beused solely for the purpose of the Paine Proceedings and are not to be disclosed to anythird parties other than for that purpose.Costs[23] I make no order as to costs on the application.____________________Fitzgerald J