Erceg v Erceg [2014] NZHC 2107 (3 September 2014)

Last Updated: 16 September 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-006213 [2014] NZHC 2107

BETWEEN	MILLIE MARTHA ERCEG Plaintiff
AND	LYNETTE THERESE ERCEG and DARRYL EDWARD GREGORY First Defendants LYNETTE THERESE ERCEG Second Defendant

Hearing:	On the papers
Judgment:	3 September 2014

JUDGMENT OF ASHER J (Access to documents)

This judgment was delivered by me on Wednesday, 3 September 2014 at 11am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Simpson Dowsett Mackie, Auckland.

Wilson Harle, Auckland.

ERCEG v ERCEG [2014] NZHC 2107 [3 September 2014]

[1] The Herald on Sunday applies for access to the following court documents: “Court file - statement of claim, affidavits, other relevant documents”. The reason given is “to prepare a news report”.

[2] Venning J has on an earlier occasion declined access. He noted:¹

On an application such as this the Court is required to take the matters in r 3.16 into account. Supporting the application is the principle of open justice, namely encouraging fair and accurate reporting of and comment on Court hearings and decisions, and the freedom to seek, receive and impart information.

Balanced against those considerations in the present case is the protection of confidentiality and privacy interests and the orderly and fair administration of justice in particular.

It is relevant that the pleadings have still not closed. Previously the Court has declined to grant access to documents on the file, because of the nature of the proceeding, the fact the proceeding was still at an interlocutory stage and that a number of issues covered in the submissions and other documents were contentious and had not been fully responded to. Those considerations still apply. As noted the pleadings are not yet completed. An amended claim and amended defence are still to be filed.

[3] He also noted that there was sufficient information presently available for the media to report on the general nature of the dispute.² He also accepted a submission that at a recent discovery hearing the Court had made directions prohibiting a reporter who was in attendance from reporting details, and that it would be contrary to the orderly administration of justice to allow a different media company to access and report details of the same allegations and evidence through this type of application.³ He did, however, say this:⁴

Once the pleadings are closed, which should be by the end of April, it may be appropriate for a further application to be made for access to the updated statement of claim and defence at that stage. Until that stage is reached however, I am not satisfied that access should be granted given the nature of the issues raised and the interests of the parties. The current application is declined.

[4] In considering this request, I apply Part 3 subpart 2 of the High Court Rules and consider the matters to be taken into account:

¹ _{Erceg v Erceg HC Auckland CIV-2012-404-6213, 1 April 2014 at [5]–[7].}

² _{At [9].}

³ _{At [10].}

⁴ At [11].

3.16 Matters to be taken into account

In determining an application under rule 3.13, or a request for permission under rule 3.9, or the determination of an objection under that rule, the Judge or Registrar must consider the nature of, and the reasons for, the application or request and take into account each of the following matters that is relevant to the application, request, or objection:

(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.

[5] There is an obligation to provide reasons for a request.⁵ Although a reason is given it is cursory and unspecific. Moreover, I note the very general nature of the request which is in effect for everything on the file.

[6] This is a private family dispute. There is media interest in it because of the profile of the family. No issues of public interest have been identified in the application.

[7] Prior to a proceeding going to trial the Courts are cautious about granting access too freely.⁶ Parties seeking to litigate private disputes have a legitimate privacy interest.⁷ This must be balanced of course against the rights of the press to report as surrogates of the public and the principle that hearing are open to the public.⁸

[8] However, this latter particular factor has less weight in civil cases of a family nature prior to hearing. Such cases often settle and assertions are made that are later

⁵ _{High Court Rules, rr 3.9(4)(b) and 3.13(2)(b).}

⁶ _{Hotchin v APN New Zealand Ltd (2011) 20 PRNZ 484.}

⁷ _{High Court Rules, r 3.16(b).}

⁸ High Court Rules, r 3.16(c) and (d).

regretted and changed. I note that in a memorandum opposing access, counsel for the defendants observed that there may yet be further amendments to the pleadings. Discovery has not been completed and briefs have not been exchanged.

[9] There is a real risk that if the media are given access to the file there will be publication of matters that may present an inaccurate perspective because not all relevant material is yet before the Court. There is the chance that publication will widen an unfortunate family rift making settlement more difficult. This is not consistent with the orderly and fair administration of justice.

[10] Given the scant reasons, the general nature of the request and the status of the proceedings at the present time I decline this request.

...................................

Asher J