Crimson Consulting Limited v Berry [2018] NZCA 460 (29 October 2018)

Last Updated: 3 December 2018

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA722/2017 [2018] NZCA 460

	BETWEEN	CRIMSON CONSULTING LIMITED Appellant
	AND	SAMANTHA MARIE BERRY Respondent

Hearing:	15 August 2018 (further submissions received 10 October 2018)
Court:	Cooper, Asher and Gilbert JJ
Counsel:	T J P Bowler for Appellant T C Goatley for NZME Publishing Ltd
Judgment:	29 October 2018 at 11 am

JUDGMENT OF THE COURT

1. The appeal is dismissed.
2. The appellant must pay NZME costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Introduction

[1] This appeal involves an application for access to court documents that was made after the settlement and discontinuance of a High Court proceeding prior to trial. In the decision appealed from Palmer J, while directing that much of the file was not to be accessed, ordered that The New Zealand Herald, owned by NZME Publishing Ltd (NZME), and the National Business Review (the NBR) be granted access to redacted versions of the statement of claim and statement of defence.^[1] The appellant Crimson Consulting Ltd (Crimson), the defendant in the substantive proceedings, contests that ruling and asserts that there should be no access at all. NZME opposes the appeal, but does not cross-appeal the Judge’s decision to grant only limited access with redactions. The former plaintiff in the substantive proceedings, Samantha Berry, has taken no steps in this appeal and took no position on access before Palmer J.

Background

[2] Ms Berry is an educational consultant. She had sold a business (UniTutor) to Crimson and worked for that company as an employee. She resigned in acrimonious circumstances and shortly thereafter Crimson sought interim relief in relation to her work in the Employment Relations Authority. Those proceedings were transferred to the Employment Court. Interim directions were made restricting publication of details of that proceeding.
[3] Later Crimson filed proceedings in the High Court seeking an interim injunction against Ms Berry, and Ms Berry in due course then filed substantive proceedings for breach of contract. On 26 June 2017 Associate Judge Bell by a minute in the High Court declined a request by the NBR to inspect the Court file, but left open the issue of further requests.^[2]
[4] On 9 October 2017 Crimson and Ms Berry settled all matters between them in both the Employment Court and the High Court. On 23 November 2017 Judge Corkill of the Employment Court made permanent non-publication orders in relation to commercially sensitive information and allegations that were irrelevant to the proceeding.^[3] The Judge also ordered that the Court file could only be inspected with leave of a judge.
[5] Crimson then applied to the High Court in these proceedings to permanently seal the Court file. This request was not opposed by Ms Berry. The request came before Palmer J. He issued a minute of 17 October 2017.^[4] In that minute he noted that Crimson had only made a general submission of commercial sensitivity without stating what the sensitivity was or which documents were affected. He directed that the parties and any third parties who had requested access should set out their position prior to him determining whether the Court file should be sealed. In late October 2017 both NZME and the NBR applied for access to the Court file. Crimson opposed the applications. As we have noted, Ms Berry took no position.
[6] NZME sought access to all of the Court file, including pleadings, submissions and affidavits and evidence. It stated that the case was of public interest. Crimson is a company said to be worth $200 million and its founder is a well-known public figure. Investors and clients had a right to know the information on the file. The NBR stated that its purpose in seeking access was to further its research into Crimson and the founder, who had allegedly courted publicity for Crimson. The NBR stated that it did not wish to view documents that the Court deemed genuinely commercially sensitive, such as a sale and purchase agreement or sales reports. But it wanted access to other pleadings and material that was not commercially sensitive.

The decision

[7] Palmer J issued the decision that is the subject of this appeal on 7 December 2017.^[5] He declined the request for access to the evidence and memoranda that were on the Court file. He released to NZME and the NBR the statements of claim and defence only, redacted by him for commercially sensitive information. He had carried out his own draft redactions on those documents and the draft redacted pleadings were attached to his judgment for comment on the redactions. NZME and the NBR have not commented on the redactions and have not contested them.
[8] When Crimson filed its notice of appeal neither NZME nor the NBR were named as parties despite the observation of Palmer J that, having made the applications which the judgment determined, “they are parties to the application (and, presumably, its appeal)”.^[6] NZME applied for leave to file submissions and be heard on the appeal. Leave was granted on 15 March 2018.^[7]

Access to court documents

[9] Section 173(1) of the Senior Courts Act 2016 provides that “[a]ny person may have access to court information of a senior court to the extent provided by, and in accordance with, rules of court.”
[10] The Senior Courts (Access to Court Documents) Rules 2017 (the Rules) apply to both criminal and civil proceedings and to all the senior courts — the High Court, the Court of Appeal and the Supreme Court.^[8] They give those courts control over every request for access to documents in their court.
[11] Under the Rules every person has a right to access the formal record relating to a civil proceeding^[9] and to certain specified documents in criminal proceedings.^[10] The formal court record in civil proceedings is defined in r 4 and includes judgments, orders and minutes, but does not include pleadings or affidavits. It does not include the documents that NZME and the NBR wish to access.
[12] Access to documents that do not fall under the general right to access can be sought by any person by a written request to the Registry.^[11] There are certain matters which must be specified, including the reasons for asking for access to the document.^[12] The Registrar must give a copy of the request to the parties to the relevant proceeding^[13] and parties who wish to object must give written notice of that objection to the Registrar, setting out the grounds of objection.^[14] It is an informal procedure. The application is then put before a judge.^[15] The judge may grant or refuse a request or may grant a request subject to conditions.^[16] Alternatively, the judge may refer the request to a Registrar for determination by that Registrar.^[17]
[13] As Palmer J noted, under r 12 the judge “must consider the nature of, and the reasons for, the request” and take into account each of the matters set out that is relevant to the request or any objection to the request. Those matters are:

(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 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:

(g) whether a document to which the request relates is subject to any restriction under rule 7:

(h) any other matter that the Judge thinks appropriate.

[14] The Rules are the successor to the High Court (Access to Court Documents) Amendment Rules 2009 (the 2009 Rules), which amended the High Court Rules on access.^[18] The 2009 Rules set out the same general approach and procedure now adopted.^[19] However, we note that, whilst the predecessor to r 12 had always provided that the protection of confidentiality and privacy interests were relevant, r 12(c) specifically sets out 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.
[15] Initially there was a difference of approach in the High Court as to how the matters in the predecessor to r 12 should be interpreted. It was suggested in BNZ Investments Ltd v Commissioner of Inland Revenue, the decision cited and followed in the judgment appealed from, that open justice was the paramount consideration and that there was effectively a presumption in favour of disclosure.^[20] A different approach, not giving open justice this particular status, was taken in Chapman v P.^[21] The two cases did not refer to each other.
[16] The two conflicting approaches were reviewed in detail in Commerce Commission v Air New Zealand Ltd where it was determined that no particular factor, including open justice, had paramountcy.^[22] This approach was endorsed on appeal by this Court in Schenker AG v Commerce Commission where it was held that the factors in the predecessor to r 12 did not represent a hierarchy.^[23] It was said that open justice is a principle, not a freestanding right.^[24] In that case access to Court documents had been sought by a third party who asserted that it might have suffered loss as a result of the conduct targeted in the proceedings by the Commerce Commission. Access was denied on the basis that no good reason for access had been provided, and access would undermine the confidential basis on which the information had been filed with the Court, and would allow commercially sensitive material to be disclosed. A balancing exercise of all the relevant factors is required. The same applies under the new Rules.
[17] Under the 2009 Rules it was well-established that the stage of the litigation was relevant to a decision on access to court documents. Under r 3.9 of the 2009 Rules, access to documents at the hearing stage was automatic, unless a judge determined that a document should not be accessible without permission. Under r 3.13 requests for access prior to or after the hearing required an application accompanied by reasons. The judge then determined that application by taking into account the matters described in r 3.16. The new Rules now explicitly refer to three different stages of proceedings and set out three different approaches to the balancing process. Rule 13 provides:

13 Approach to balancing matters considered

In applying rule 12, the Judge must have regard to the following:

(a) before the substantive hearing, the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require 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 than other documents:

(c) after the substantive hearing,—

(i) open justice has greater weight in relation to documents that have been relied on in a determination than other documents; but

(ii) the protection of confidentiality and privacy interests has greater weight than would be the case during the substantive hearing.

This Court’s approach to the appeal

[18] If access to court documents decisions are discretionary decisions, they give rise to only a limited review on appeal.^[25] If they are evaluative decisions they give rise to an appeal on the merits of the type discussed in Austin, Nicols & Co Inc v Stichting Lodestar.^[26]
[19] This Court has taken the view until now that an appeal against a decision relating to access to court documents is an appeal against an exercise of a discretion.^[27] This was under the 2009 Rules. As we have set out, the new Rules, while not fundamentally changing the approach, have added r 12(c) to the matters that must be considered if relevant, and in r 13 have prescribed further the exercise of the balancing process by setting out in mandatory terms an approach to balancing the matters that are to be considered at different stages of the proceeding.
[20] The appellate function in relation to bail appeals was recently reviewed by this Court in Taipeti v R.^[28] It was held there that, contrary to earlier authority, decisions granting bail are not discretionary decisions, but rather are evaluative decisions which warrant a full review on appeal. Some of the matters of relevance referred to in that decision, such as a closely prescribed decision-making regime, also arise in the context of access to court documents.
[21] The distinction between discretionary and evaluative decisions was discussed by the Supreme Court in R v Gwaze.^[29] Elias CJ observed in relation to appeals against rulings on the admissibility of evidence:

[49] All the rules of exclusion provided by the Act are binding on Judges. Although their application may raise “nice questions of judgment”, they do not confer discretion as to the admission of evidence. They prescribe standards to be observed. Such rules do not therefore assume distinct allocation of responsibility between trial Judge and Court of Appeal which restricts appellate oversight. If hearsay evidence is not reliable, the judge must exclude it. If expert opinion evidence does not meet the standard of “substantial helpfulness” set by s 25(1), it is not admissible. If the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on the proceeding, it must be excluded by the Judge. Whether these standards are met entails judgment, not the exercise of a judicial discretion. If the standards are not met and the evidence is wrongly admitted, the error is one of law which can be corrected on appeal.

(Footnotes omitted and emphasis added.)

[22] In Taipeti v R, it was observed that three possible indicia of the exercise of a discretion could be discerned from the relevant authorities, including Gwaze:^[30]

[49] These decisions show that the classes of case which appeal courts classify as an exercise of a discretion are dwindling. Three possible indicia of the presence of discretion emerge. First, the extent to which the decisionmaker can apply his or her own “personal appreciation” has been identified as a “key indication”. Clearly, the greater the level of prescription in terms of what is required of the decision-making process the more likely the decision is an evaluative process, rather than the exercise of a discretion. Second, procedural decisions are more likely to be an exercise of discretion than wider issues of principle involving the application of law to the facts. Third, if only one view is legally possible, that points away from a discretion. In other words, where there is scope for choice between multiple legally “right” outcomes, that points towards a discretion.

[23] Mr Bowler for Crimson, relying on the principles set out in Taipeti v R, supported a change to treating decisions on access to court documents as evaluative decisions. Ms Goatley for NZME did not support a change, and argued that the position in relation to access to court documents is different from that in relation to bail, as the bail provisions are more prescriptive, and there are express statutory provisions in the Bail Act 2000 indicating that any appeal is by way of a rehearing. She submitted that decisions on bail involve fundamental human rights and therefore should be subject to general appeal. That is not the case in relation to access to court documents.
[24] We accept that the legislative regimes for bail and access to court documents have differences in terms of their prescriptiveness. However, both require that certain matters must be taken into account. Rule 12 sets out matters the judge “must” take into account where relevant and r 13 instructs the judge as to the balancing of those matters depending on the stage of the proceeding. Both rr 12 and 13 are in mandatory terms.
[25] We also note that decisions on access to court documents may engage the freedom to seek and receive information under s 14 of the New Zealand Bill of Rights Act 1990, particularly in media applications such as the present one.
[26] Ms Goatley submitted that a judge has the option under r 11(7)(c) to refer a request for access to a Registrar for determination by that Registrar. That decision in itself could be subject to review, and this she submitted was an indication that the initial decision is discretionary. However the ability to refer a matter to a Registrar is there presumably for situations where close monitoring on an ongoing basis is required, or there is some other factor that warrants requests being dealt with at the Registrar level. The power is with a judge under r 11(7)(a) and (b) to grant or refuse the request with or without conditions, and the ability to refer a request to a Registrar is just another option available to a judge in making a decision on the request. We do not see it as indicative of the judge’s decision being by nature discretionary rather than evaluative.
[27] We note that it has been held that procedural decisions are more likely to be an exercise of discretion than wider issues of principle involving the application of law to the facts.^[31] A decision on access to court documents is not procedural in the usual sense.^[32] It is not interlocutory in the sense of being a pre-trial hearing relating to trial and trial preparation issues such as admissibility or discovery. Rather, it is a standalone application that has no direct connection to the outcome of the proceeding to which access to the court record is sought. It involves a substantive application of the law to the facts that surround the application for access. It is not procedural in nature.
[28] There is a prescriptive regime set out in the Rules that a judge is obliged to apply. In our view the list of matters that if relevant “must” be taken into account under r 12, and the more prescriptive approach to balancing set out in r 13, indicate an evaluative decision-making process rather than the exercise of a discretion. There will be one legally correct answer rather than a choice between multiple legally correct answers. It is therefore not open for a judge considering an application for access to court documents to apply his or her own “personal appreciation”, which has been identified as a “key indication” of a discretionary decision.^[33]
[29] It follows that this is a situation where, as was said in Austin, Nichols & Co Inc v Stichting Lodestar:^[34]

[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[30] We conclude that decisions on access to court documents are not exercises of discretion. They are evaluative decisions based on a prescribed decision-making process of a type referred to in Austin, Nichols & Co Inc v Stichting Lodestar. We acknowledge that in reaching this decision on the appellate approach we are not following previous decisions of this Court. This Court has, however, recognised an ability to review its earlier decisions in appropriate cases.^[35] We consider this to be a case where that course is appropriate.
[31] Therefore we approach this appeal exercise as an appeal by way of a rehearing from an evaluative decision, rather than adopt the narrower appellate approach outlined in May v May.^[36] Crimson must identify and demonstrate error, and this Court must come to its own conclusion based on the material that was before the original decision-maker, and any further evidence that has been admitted on appeal.^[37]

Application of relevant access to court documents principles

[32] Palmer J observed in relation to the matters to be considered:^[38]

[22] As Wild J stated in BNZ Investments, the principle of open justice effectively creates a presumption of disclosure of information filed in court for the purpose of legal proceedings. ...

As we have set out, it is made clear by this Court in Schenker that there is no presumption of disclosure of information.^[39] There is no hierarchy between the r 12 factors. The approach in BNZ Investments has not been adopted.

[33] However, the principle of open justice is fundamental to the common law system of civil and criminal justice. It was certainly engaged in this application, involving as it did media organisations who wished to investigate and report on the proceeding. As was stated by the Supreme Court in Erceg v Erceg:^[40]

The principle’s underlying rationale is that transparency of court proceedings maintains public confidence in the administration of justice by guarding against arbitrariness or partiality, and suspicion of arbitrariness or partiality, on the part of courts. ... The principle means not only that judicial proceedings should be held in open court, accessible by the public, but also that media representatives should be free to provide fair and accurate reports of what occurs in court. Given the reality that few members of the public will be able to attend particular hearings, the media carry an important responsibility in this respect. ...

Therefore the principle, while not creating a presumption of disclosure, was properly emphasised by Palmer J. So was the related principle of freedom to seek and receive information at r 12(f), which is particularly relevant when a member of the media is involved.

[34] Given that the access application related to a proceeding that was settled prior to trial and there was no hearing, and given that it involved a dispute between private entities, other matters set out in r 12 had particular significance.
[35] We have already quoted r 12(c), which specifically sets out 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, as a factor to be taken into account. This can be seen as giving particular emphasis to protecting the privacy of civil disputes between individuals.
[36] Rule 12(a) refers to the orderly and fair administration of justice. The orderly and fair administration of justice in this context gives focus to the undesirability of interfering with access to justice through the courts by discouraging the filing of proceedings because of the fear of damaging or embarrassing publicity. These were civil proceedings arising from a dispute which, while involving a company, was about a private contract. The orderly and fair administration of justice (in this context, fair access to the courts in civil disputes) and the right to privacy were engaged. However they were not engaged to the extent set out in Rice v Heaney where there was a dispute between former professional partners, and the Court held it was essentially a private dispute involving private and sensitive information.^[41]
[37] Thus the principle of open justice (r 12(e)) and the right to receive information (r 12(f)) must be balanced against the orderly and fair administration of justice (r 12(a)) and right to privacy (r 12(c)).
[38] Turning to the other significant factor concerning this application, the case settled pre-trial, and indeed at an early stage prior to it being set down. As we have set out, this is a matter that must be taken into account in approaching the balancing of the factors to be considered under r 12. Rule 13(a) provides that before the substantive hearing the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited. The different approaches at different stages of the proceeding were discussed by this Court in Greymouth Petroleum Holdings Ltd v Empresa Nacional Del Petroleo:^[42]

[25] These divisions reflect that during the substantive hearing open justice has greater weight, in particular in relation to documents admitted in evidence. When a court is engaged in hearing a dispute its workings, including documents referred to or relied on, should be open to full scrutiny by all members of the public, unless there are particular and strong reasons to the contrary. The public should be able to follow and understand the hearing process. However, prior to and after the substantive hearing, the importance of public scrutiny is less, as the court is not hearing and resolving the dispute. Prior to the hearing there is no guarantee the case will go to hearing at all. Therefore open justice has less weight. The parties are entitled to the protection of confidentiality and privacy within reasonable limits, given that they have not at that point aired the dispute in public. After the substantive hearing the need for public scrutiny diminishes in importance as time moves on. ...

[39] As we have set out, parties may be deterred from issuing proceedings that they should be able to put before a court because they are fearful of immediate and damaging publicity relating to recently formed and untested allegations. That endangers the orderly and fair administration of justice. When matters are still at the pleadings stage, there is an element of unfairness on parties in the publication of one side of the story. The allegations in the statement of claim have not yet been tested by the giving of evidence. There being no hearing in court, the need for transparency and public scrutiny is less, because pre-trial the court is generally not determining substantive issues.
[40] However the principle of open justice, and the freedom to seek information, remain important factors which do not cease to work in the pre-trial stage. In the related area of suppression of name the courts have endorsed the concept that there is a high threshold before any suppression order can be made. This is because any suppression order necessarily derogates from the principle of open justice and the right to freedom of expression.^[43] There is no suppression of name in this case, and it is important the public know generally what type of business is being conducted in the courts of New Zealand. Transparency of the court process at all stages is in the public interest.
[41] Reporting on a statement of claim and a statement of defence, providing it is fairly done, is one way of informing the public so that the business of the courts is known and transparent. Thus the publication of a statement of claim which sets out a contract dispute between parties, which has no commercially sensitive information or matters unduly intruding into the private lives of individuals, can be permitted.^[44]
[42] It was suggested by Mr Bowler that the pleadings contain uncontested and damaging allegations about Crimson’s business strategy. We have reviewed the material in the statement of claim, and can see nothing to support this assertion. The allegations by Ms Berry against Crimson involved a breach of an agreement whereby Crimson was to purchase her shares in UniTutor. Part of the consideration was a series of payments to be calculated based on UniTutor’s gross revenue after acquisition by Crimson. It was alleged that Crimson ran UniTutor in a way that adversely affected its gross revenue, in breach of the agreement. It was also alleged that Crimson failed to transfer shares to Ms Berry in accordance with the agreement. These are not details of personal lives, and is not commercially sensitive information. Palmer J’s redactions have removed most of the detail of the terms of the purchase of the shares and the running of the business of UniTutor.
[43] We find ourselves in agreement with Palmer J’s assessment that to allow access to the redacted statement of claim and statement of defence and refuse access to the evidence and memoranda on the Court file strikes the correct balance. Commercial sensitivity is maintained, there is no undue interference with the privacy of the parties, and the public confidence in the administration of justice can be maintained, while the nature of the dispute and thus the business of the Court can be known by the public. There is nothing in the allegations and denials that has a particular pejorative or personal flavour. The need to have transparency in Court proceedings is met by redaction and access.
[44] Therefore, although we have been unable to agree with all of the legal analysis of Palmer J, we consider that the procedural steps he took, and his end conclusion on the balancing process, were correct.

Estoppel

[45] Crimson places reliance on a statement by Associate Judge Bell in his minute of 26 June 2017. That minute responded to an earlier application by the NBR to access the Court file. He noted the distinction between the interlocutory stages of a proceeding and the substantive hearing stage.^[45] He noted that discovery was still to be completed and the parties still had the opportunity to explore settlement before the close of pleading date. He concluded his minute by stating:

[12] In the circumstances, I decline the request to inspect the file at this stage, but leave it open to [the NBR] to make a fresh application after the close of pleadings date.

[46] Mr Bowler argued that given the case was settled before the close of pleadings date and no further documents were filed, this decision still applied. If it did not directly apply, he argued that there was issue estoppel arising because of the determination by Associate Judge Bell. He submitted that the parties had settled the case on the expectation that they had the benefit of Associate Judge Bell’s order declining the request to inspect the file until the close of pleadings date. Having settled before that date, they had a reasonable expectation that they would be protected from an application such as this. Access would be unfair.
[47] However, Associate Judge Bell’s order was plainly an interim order made to deal with a request made while the case was going through its interlocutory phase. It was not intended to finally determine access. He specifically noted that a fresh application could be made by the media “after the close of pleadings date”. That date was never reached, as the case was settled before that, and there was an application by Crimson to close the Court file. The reference to the close of pleadings date can be seen as a temporal marker of when an application could be made again, rather than a final cutoff event, which if not reached would prevent all further access.
[48] We also note that NZME was not a party to Associate Judge Bell’s ruling. It is therefore difficult to see how it could be treated as bound by that ruling for the purposes of issue estoppel.
[49] Associate Judge Bell’s decision was in its nature and import an interim decision. It anticipated a fresh application at a later point. We do not consider that the parties could have reasonably considered that they could settle with the assurance that a permanent no access order would follow automatically. That Crimson applied to close the file following settlement indicates that, at that time, they did not view Associate Judge Bell’s decision as precluding further applications for access. We do not consider that interim decision to be relevant, other than as background.

The Employment Court decision

[50] Mr Bowler appeared to submit that because on 23 November 2017 Judge Corkill made orders in the Employment Court for permanent non-publication and sealing of the file in that Court, with provision that no person could inspect the Court file without leave of a judge, this should have been a reason to decline access in the High Court.^[46] However in the Employment Court the media do not appear to have applied for access to any documents on that file, so the order was effectively made with the consent of all interested parties. We do not see that Court’s order as being of relevance, particularly when neither NZME nor the NBR were privy to the decision.
[51] We agree with Mr Bowler that there is a need for comity between courts with non-overlapping jurisdictions. But there is nothing to indicate that Judge Corkill intended to do anything other than record a consent position in the Employment Court. Such a decision was not binding on Palmer J and indeed, given the lack of consent in the High Court, of no relevance.

Conclusion

[52] We have approached the question of access to court documents as an evaluative decision warranting a full evaluative review on appeal. Having carried out such a review, we consider that the decision to grant limited access to the redacted pleadings was correct.

Result

[53] The appeal is dismissed.

Costs

[54] The general principle is that costs follow the event.^[47] We do not accept Mr Bowler’s submission that a lower than usual costs order should be made because Ms Goatley’s appearance for NZME is an “indulgence”. The appeal arises out of NZME’s application for access in response to Crimson’s application to permanently close the High Court file. NZME, as a reputable media organisation wishing to publicise details of a proceeding, has a direct and legitimate interest in the outcome of the appeal. Therefore we do not regard NZME’s involvement in the appeal as an indulgence. There is nothing in the circumstances of this appeal to warrant a departure from the usual approach to costs.
[55] The appellant must pay NZME costs for a standard appeal on a band A basis and usual disbursements.

Solicitors:
Neilsons Lawyers, Auckland for Appellant
Bell Gully, Auckland for NZME Publishing Ltd

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^[1] Berry v Crimson Consulting Ltd [2017] NZHC 3026.

^[2] Berry v Crimson Consulting Ltd HC Auckland CIV-2016-494-2933, 26 June 2017 (Minute of Associate Judge Bell).

^[3] Crimson Consulting Ltd v Berry [2017] NZEmpC 148.

^[4] Berry v Crimson Consulting Ltd HC Auckland CIV-2016-404-2933, 17 October 2017 (Minute No 2 of Palmer J).

^[5] Berry v Crimson Consulting Ltd, above n 1. As is the norm, Palmer J determined the application on the papers.

^[6] Berry v Crimson Consulting Ltd HC Auckland CIV-2016-404-2933, 14 December 2017 (Minute of Palmer J) at [5].

^[7] Crimson Consulting Ltd v Berry CA722/2017, 15 March 2018 (Minute of Brown J).

^[8] The District Court (Access to Court Documents) Rules 2017 address applications for access to documents in that Court.

^[9] Senior Courts (Access to Court Documents) Rules 2017, r 8(1).

^[10] Rule 8(3) and (4).

^[11] Rule 11(2).

^[12] Rule 11(2)(c).

^[13] Rule 11(3).

^[14] Rule 11(5).

^[15] Rule 11(7).

^[16] Rule 11(7)(a)–(b).

^[17] Rule 11(7)(c).

^[18] The 2009 Rules were set out in an Order in Council on 11 May 2009, following a drafting process in the Rules Committee.

^[19] See what used to be r 3.16 of the High Court Rules.

^[20] BNZ Investments Ltd v Commissioner of Inland Revenue (2009) 20 PRNZ 311 (HC) at [36].

^[21] Chapman v P (2009) 20 PRNZ 330 (HC) at [31].

^[22] Commerce Commission v Air New Zealand Ltd [2012] NZHC 271 at [29].

^[23] Schenker AG v Commerce Commission [2013] NZCA 114, (2013) 22 PRNZ 286 at [21], [29] and [37].

^[24] At [36].

^[25] Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].

^[26] Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

^[27] Schenker AG v Commerce Commission, above n 23, at [15]–[16]; and Greymouth Petroleum Holdings Ltd v Empresa Nacional Del Petroleo [2017] NZCA 490, [2017] NZAR 1617 at [15].

^[28] Taipeti v R [2018] NZCA 56, [2018] 3 NZLR 308.

^[29] R v Gwaze [2010] NZSC 52, [2010] 3 NZLR 734.

^[30] Taipeti v R, above n 28 (footnotes omitted).

^[31] Ophthalmological Society of New Zealand Inc v Commerce Commission [2003] NZCA 26; [2003] 2 NZLR 145 (CA) at [37].

^[32] Greer v Smith [2015] NZSC 196, (2015) 22 PRNZ 785 at [9].

^[33] Ophthalmological Society of New Zealand Inc v Commerce Commission, above n 31, at [37].

^[34] Austin, Nichols & Co Inc v Stichting Lodestar, above n 26 (footnotes omitted).

^[35] R v Chilton [2005] NZCA 295; [2006] 2 NZLR 341 (CA) at [82]–[100].

^[36] May v May (1982) 1 NZFLR 165 (CA) at 169–170.

^[37] Taipeti v R, above n 28, at [52]; and Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30].

^[38] Berry v Crimson Consulting Ltd, above n 1.

^[39] Schenker AG v Commerce Commission, above n 23.

^[40] Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2] (footnotes omitted).

^[41] Rice v Heaney [2014] NZHC 1311, (2014) 22 PRNZ 159 at [18].

^[42] Greymouth Petroleum Holdings Ltd v Empresa Nacional Del Petroleo, above n 27 (emphasis added).

^[43] See McIntosh v Fisk [2015] NZCA 247, [2015] NZAR 1189 at [1]; and Y v Attorney-General [2016] NZCA 474, [2016] NZAR 1512 at [30].

^[44] See also r 12(d), which refers to the protection of the confidentiality and privacy interests of children or other vulnerable members of the community.

^[45] Minute of Associate Judge Bell, above n 2, at [10].

^[46] Crimson Consulting Ltd v Berry, above n 3, at [8].

^[47] Court of Appeal (Civil) Rules 2005, r 53A(a).