NZX Limited v Ralec Commodities Pty Limited [2012] NZHC 1641 (10 July 2012)

Last Updated: 25 July 2012

ORDER PROHIBITING SEARCH OF COURT FILE WITHOUT JUDGE'S PRIOR APPROVAL.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-1299 [2012] NZHC 1641

BETWEEN NZX LIMITED

Plaintiff/First Counterclaim Defendant

AND RALEC COMMODITIES PTY LIMITED First Defendant/First Counterclaim Plaintiff

AND RALEC INTERACTIVE PTY LIMITED Second Defendant/Second Counterclaim Plaintiff

AND GRANT DAVIS THOMAS Third Defendant

AND GRANT THOMAS NOMINEES PTY LIMITED

Fourth Defendant

AND DOMINIC LUKE PYM Fifth Defendant

AND PYM FAMILY PTY LTD Sixth Defendant

AND NZX HOLDING NO 4 LIMITED Second Counterclaim Defendant

AND MARK RHYS WELDON Third Counterclaim Defendant

Teleconference: 10 July 2012

Appearances: B Latimour and E M Greig for plaintiff/first and second counterclaim defendants

A R Galbraith QC for third counterclaim defendant

J K Scragg for defendants/first and second counterclaim plaintiffs

H Rutherford of Dominion Post as applicant

_{Judgment: 10 July 2012}

NZX LIMITED v RALEC COMMODITIES PTY LIMITED HC WN CIV-2011-485-1299 [10 July 2012]

RESERVED JUDGMENT OF DOBSON J (Access to Court file)

[1] On 27 June 2012, Mr Rutherford applied in the name of the Dominion Post/Fairfax Media for access to Court documents in these proceedings. He cited r 7.35 of the High Court Rules which relates to publication of hearings in chambers, but also referred to all pleadings from the parties.

[2] The application was opposed by the plaintiff and counterclaim defendants. The defendants did not oppose the application.

[3] In those circumstances, I convened a telephone conference to determine the application.

[4] Mr Rutherford was concerned to have access to essentially as much of the file as possible, on the basis that it was more difficult to provide an accurate report of submissions observed during a Court hearing when the documents from the Court file being discussed were not accessible to the journalist. In order of priorities, I took his wish to be to have access to the pleadings, and then, if possible, to affidavits that had been filed thus far.

[5] In support of his application, Mr Rutherford characterised the proceeding as one in which there was relatively widespread public interest, and that his task in accurately reporting the subject matter of the proceedings was impaired without the access that he sought.

[6] The proceedings are at a relatively early stage, and the application is therefore to be dealt with under rr 3.13 and 3.16 of the High Court Rules.

[7] At the pre-hearing stage of a proceeding, the matters to be taken into account under r 3.16 are likely to be balanced differently from the most pertinent considerations once a trial is underway, at which stage applications are dealt with

under r 3.9. In addition, the current approach eschews any hierarchy in the matters to be taken into account, so that considerations are weighed on a case by case basis. In particular, this means that the principle of open justice does not warrant special weight.[1]

[8] Opposition on behalf of NZX focused on the volume of material that would be disclosed by allowing search of the pleadings, particularly the Statement of Defence and Counterclaim. Mr Latimour described those documents as prolix, containing inappropriate matters that were untested and of an evidentiary nature under the heading of “Particulars” when, from NZX’s perspective, they may never see the light of day.

[9] Mr Latimour emphasised that at this stage the proceedings reflect a commercial dispute between private parties, and the parties’ obligations in progressing the claims and counterclaims to trial ought not to be diverted by the prospect of publicity, at least as to the evidentiary details.

[10] On behalf of Mr Weldon, Mr Galbraith QC raised concerns that the counterclaim attempted to personalise what should essentially be a commercial dispute, and that the particulars alleged against Mr Weldon in the counterclaim suggest Mr Weldon is being “targeted”. Arguably, whilst he has outstanding an application to strike out the claims against him, there is no sufficient public interest in the nature of the untested allegations to outweigh his interest in attempting to clear away some or all of the claims against him. If a strike out application is successful, then, again on Mr Latimour’s approach, these personal criticisms “would not see the light of day”.

[11] Both Messrs Latimour and Galbraith were concerned that the length and detail of the Statement of Defence and Counterclaim rendered it extremely difficult

_{to report objectively and accurately.}

[12] Mr Latimour emphasised that the appropriate consideration under r 3.16 is to encourage fair and accurate reporting of, and comment on, Court hearings and decisions, suggesting that the rule implicitly distinguishes between those aspects of proceedings, and the more detailed content of untested allegations in pleadings.

[13] I attribute less weight to the interest of NZX as a litigant deserving of respect for the private nature of its dispute than would be the case for a privately held non- public company. As a publicly listed entity, as operator of the New Zealand Exchange, and with various quasi regulatory responsibilities, NZX must expect relatively close media scrutiny when it resorts to litigation in its own interests. That same expectation should not be attributed to Mr Weldon in his post-NZX private capacity, when he is joined to the proceedings by the defendants’ initiative. That is not to deny the presence of matters of genuine commercial sensitivity that may, on an issue-by-issue consideration, warrant specific confidentiality orders.

[14] More generally, the orderly and fair administration of justice in these proceedings is most likely to require robust and thorough testing of positions on a range of interlocutory issues. That has certainly been the case thus far and the efficient progress with the proceedings would likely be jeopardised, and certainly diverted, by the prospect of “trial by media”.

[15] The conduct of the proceedings thus far, and the best projection I can make of their progress through the interlocutory stages, leads me to the view that the public interest in the minutiae of allegations and counter-allegations at this stage is not high. Certainly, the overall interests in efficient progress of the proceedings to a substantive conclusion clearly outweigh any interests in the principle of open justice that could possibly be advanced by granting media access to a level of detail beyond that which will be reflected in the judgments determining interlocutory disputes as they arise. Thus far, the judgments on the defendants’ protests to New Zealand jurisdiction and the counterclaim defendants’ applications for security for costs adequately describe the context in which those initiatives were taken to enable reporting of them to occur.

[16] I am accordingly not prepared to grant access to either the pleadings, or affidavits filed in support of interlocutory applications, at this stage. As I indicated to Mr Rutherford, such a decision does not preclude an application at a later stage in the proceedings. Certainly, different considerations will inevitably apply if and when the proceedings get to trial. Before that time, application for access to particular documents may be justified in order to understand the context in which other developments in the proceedings occur.

[17] There will be no order as to costs on the application.

Dobson J

Solicitors:

Bell Gully, Wellington for plaintiff and counterclaim defendants

Duncan Cotterill, Wellington for defendants and counterclaim plaintiffs

Copy to:

Hamish Rutherford, The Dominion Post, Wellington

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[1] Chapman v P HC Wellington CIV 2007-485-1372, 9 December 2009, GDF I LPP v Melview

(Kawarau Falls Station) Investments Ltd [2012] NZHC 677.