YARROW V YARROW HC NWP CIV 2008-443-000072

YARROW V YARROW HC NWP CIV 2008-443-000072 24 June 2010IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY CIV 2008-443-000072BETWEEN PAUL STEVEN YARROW Plaintiff AND JOHN ALFRED YARROW Defendant Hearing: on papers Counsel: B P Henry for plaintiff G W Hall for defendant Judgment: 24 June 2010 at 2:30pmJUDGMENT OF ASSOCIATE JUDGE ABBOTT [re application for order restricting access to file and formal court record]This judgment was delivered by me on 24 June 2010 at 2:30pm, pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy RegistrarSolicitors: Dennis King Law, PO Box 1092, New Plymouth 4340 for plaintiff Buddle Findlay, PO Box 1433, Auckland 1140 for defendant[1] This proceeding concerns a dispute between two brothers over the sale of shares in a family company. [2] The parties have agreed to terms for settlement and have made a joint application for orders prohibiting access to the court record (save for a judgment which I delivered on 14 August 2009) and to the court file, except with permission of the court.The grounds[3] The family are well known, particularly in the Taranaki region, where the family company is a substantial employer. The family business extends throughout the country and into parts of Australia. [4] The application is made on the grounds that the court file and the court record contain references to family issues, to commercially sensitive information relating to the family business, and to allegations of conduct by the defendant, all of which should remain confidential to the parties. They say it is not in the interests of family harmony or the family business for the information to be made public. Additionally they say that the serious allegations made by the plaintiff against the defendant, and strongly contested by the defendant, have not been heard or determined by the court (they were raised in a second cause of action which was not addressed in the judgment that has been delivered).Rights of access[5] I will address the two aspects of the application (court record and court file) separately as the rights of access differ: a) There is a general right to all persons to have access to the formal court record unless that access has been restricted by an enactment or court order: rr 3.7 and 3.12 of the High Court Rules;b) There is no such general right in relation to documents on the court file except during what is called the substantive hearing stage, and except in the substantive hearing stage, access is only with permission of the court made on formal application: rr 3.9, 3.11 and 3.13. [6] The parties wish to preserve their own rights of access: r 3.8.The court record[7] The formal court record is defined in r 3.5.3.5 InterpretationIn this subpart, unless the context otherwise requires,— ....formal court record means any of the following kept in a registry of the court: (a) a register or index: (b) any 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, order, or minute of the court, including any record of the reasons given by the Judge: (e) the rolls of barristers and solicitors kept under section 56 of the Lawyers and Conveyancers Act 2006 or any former corresponding enactment.[8] As I understand counsel, the aspect of concern to the parties is the part of the court record comprising:a judgment, order, or minute of the court, including any record of the reasons given by the Judge[9] The parties accept that any order should not extend to the judgment of 14 August 2009 (because it is already in the public domain) but wish to limit access to the orders or minutes of the court. They say that some of these contain referenceto the untested allegations against the defendant. They also make the point that an order will not preclude members of the public and the press seeking leave of the court. It just precludes automatic access. [10] Rule 3.7 expressly makes the right to access of the formal court record subject to r 3.12. Rule 3.12 provides that a right given by the rules to access any part of the formal court record is subject to any court order or direction limiting access. It is implicit that the court has power to make an order or direction limiting or prohibiting access to any part of the formal court record.The court file, and documents generally[11] The court file and documents are also defined in r 3.5:3.5 InterpretationIn this subpart, unless the context otherwise requires,— ....court file means a collection of documents in the custody or control of the court that relate to a proceeding (including any interlocutory application associated with the proceeding)document— (a) means any written material in the custody or control of the court that relates to a proceeding (including any interlocutory application associated with the proceeding), whether or not kept on a court file; and (b) includes documentary exhibits, video recordings, records in electronic form, films, photographs, and images in electronic form; but (c) excludes— (i) notes made by or for a Judge for his or her personal use; and (ii) any material that relates to the administration of the court.[12] There is currently no general right of access to the court file or documents on the court file because this matter is not in the substantive hearing stage (as defined in r 3.9) and as a result of the settlement, the case will never reach that stage.[13] The parties recognise that, by reason of r 3.12(2), any person wishing to access the court file, or any document on it, will need to apply for permission pursuant to r 3.13, and make a case for obtaining access having regard to the matters set out in r 3.16. However, they seek an order restricting access to "reduce the risk of accidental disclosure of such documents". They say that this would be achieved by making an order for a sticker to be placed on the court file recording that access to the file is prohibited except with leave of the court, as occurred in Bancorp Securities Limited v Reid (1989) 4 PRNZ 139. They submit that such an order will not affect the public right to apply for access but will help guard against accidental disclosure.Discussion[14] I accept that this is a dispute within a family, and that there is potential for upset and dissension if the family issues are brought into the public domain. It is highly likely that a wish to settle their differences in private has been a significant motivating factor for both parties in reaching settlement. I regard this as a significant factor which the court should take into account. Were it not for the family's public profile I would consider that it would be unlikely that the public would wish to access the file. The fact that parties have a public profile of itself does not warrant an intrusion into rights of privacy that should otherwise be protected. [15] I also accept that the court file, and individual documents within it, contain material about the family business which could be regarded as commercially sensitive. Again, the mere fact of a public profile does not outweigh the family's interests in protecting that information. [16] Finally, I accept the point that the allegations made against the defendant were strongly contested, and have never been tested or determined. [17] In summary, I accept that the parties have valid justifications for seeking these orders. I will now consider what orders are appropriate.[18] I will deal first with the question of restriction of access to the formal court record. [19] There is no reason to make an order extending beyond the parts of the record set out in r 3.5(d), and that is all that the parties' seek. I will exclude from the order the judgment already released and this judgment (I have taken care to avoid reference to any sensitive information or contention). I considered whether to limit the restriction to orders or minutes which contained reference to sensitive information. However, that would require further time and cost in assessing which documents came within the restriction, which could prove to be unnecessary. I take the view, for ease of administration, that the order restricting access should be made generally, and be reviewed as and when any application for access is made. [20] Turning to the matter of restricting access to the court file and documents within it, I can accept the possibility of accidental disclosure. I cannot see any reason in principle to deny the parties the additional peace of mind that might be afforded by the order that they seek. Although court staff can be expected to be aware of the rules, the marking of the court file is a simple task and will be a helpful reminder to court staff of the need for permission to be obtained before the file or any document in it can be viewed.Decision[21] I make an order, on joint application of the parties, prohibiting access of all persons (with the exception of the parties and their counsel) to the following documents, except with permission of the court: a) That part of the formal court record relating to this proceeding (CIV 2008-443-72), whether kept in the registries of the High Court at New Plymouth or Auckland, comprising judgments, orders or minutes of the court, including any record of the reasons given by the Judge,with the exception of the judgment of Associate Judge Abbott dated 14 August 2009 and this judgment; and b) The court file relating to this proceeding and all documents relating to the proceeding. [22] I make a further order that an appropriate sticker be placed on the court file that no person other than the parties or their counsel is to have access to the court file without permission of the court given on an application under r 3.13. ____________________Associate Judge Abbott