OHL Limited (formerly Hanover Group Holdings Limited) v Apex General Limited [2013] NZHC 1549 (25 June 2013)

Last Updated: 5 August 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-7104 [2013] NZHC 1549

BETWEEN OHL LIMITED (FORMERLY CALLED HANOVER GROUP HOLDINGS LIMITED)

First Plaintiff

HF RESIDUAL OBLIGATIONS LIMITED

Second Plaintiff

UF LIMITED Third Plaintiff

SOUFRIERE HOLDINGS LIMITED Fourth Plaintiff

AND APEX GENERAL LIMITED Defendant

Hearing: On the papers

Judgment: 25 June 2013

JUDGMENT OF RODNEY HANSEN J

_{As to application by the New Zealand Herald to inspect the file}

This judgment was delivered by me on 25 June 2013 at 3.00 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ...............................

Solicitors: Tompkins Wake, Hamilton

Robertsons, Auckland

OHL LTD & ORS v APEX GENERAL LTD [2013] NZHC 1549 [25 June 2013]

[1] The New Zealand Herald requests permission to inspect and copy the Court file in this proceeding. It does so on the ground that there is a significant public interest in the case following, as it does, earlier proceedings against Chartis Insurance (now known as AIG) by Hanover Group Holdings Limited, concerning insurance cover for former promoters and directors of Hanover companies for the purpose of proceedings brought by the Financial Markets Authority. The New Zealand Herald says it understands the claim against Apex General Limited (Apex) in this case is of a similar nature.

[2] The application is opposed by Apex. It says that the New Zealand Herald has not explained why it is necessary to have access to the file before the Court hearing. It is said that the open justice principle does not go to the reporting of proceedings before there is a hearing. As the proceeding is a civil dispute between two private parties, it is submitted that the parties should be free to take steps up to the substantive hearing stage free from public scrutiny. It is submitted that will allow the parties to cooperate more efficiently. In summary, it is said that the orderly and fair administration of justice and the privacy interests in conducting a proceeding without scrutiny by non-parties prevails over the freedom to seek, receive and impart information.

[3] The proceeding is scheduled to commence on 10 February 2014. Accordingly, application for permission to access the Court file falls to be determined under r 3.13 of the High Court Rules. In determining an application under r 3.13, r 3.16 requires the decisionmaker to consider the nature of, and the reasons for, the application or request, and to take into account the following matters:

(a) the orderly and fair administration of justice:

(b) the protection of confidentiality, privacy interests (including those of children and other vulnerable members of the community), and any privilege held by, or available to, any person:

(c) the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, court hearings and decisions:

(d) the freedom to seek, receive, and impart information:

(e) whether a document to which the application or request relates is subject to any restriction under rule 3.12:

(f) any other matter that the Judge or Registrar thinks just.

[4] I accept that there is a public interest in the subject matter of the proceeding and the New Zealand Herald has a legitimate interest in inspecting the file. I accept that the principle of open justice is engaged and that, in the absence of countervailing privacy and/or confidentiality considerations, there is an important interest to be served in disclosure of the claim and the issues it raises. On that basis, I am satisfied that the New Zealand Herald should be entitled to have access to the pleadings.

[5] I am not, however, persuaded that the public interest requires the inspection of other documents on the Court file, at least not at this stage. Interlocutory applications often require the disclosure of information which does not turn out to be relevant to the substantive issues. Since the application was filed and responses from the parties were invited, there have been a number of documents filed, including a substantial affidavit which, in the end, did not have to be considered by the Court as the discovery issue to which it related was resolved. I am not persuaded that the disclosure of such information can be justified.

[6] The New Zealand Herald has permission to access the Court file for the purpose of inspecting and obtaining a copy of the pleadings comprising the statements of claim, statement of defence and reply to statement of defence.