Menzies v Omanu Holdings Limited [2015] NZHC 273 (24 February 2015)

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BETWEEN	GRAEME ROSS MENZIES, JULIE ANNE MENZIES and DONALD WILFRED MENZIES as trustees of the GRAEME MENZIES FAMILY TRUST and JULIE ANNE MENZIES, GRAEME ROSS MENZIES and DONALD WILFRED MENZIES as trustees of the JULIE MENZIES FAMILY TRUST Plaintiffs
AND	OMANU HOLDINGS LIMITED Defendant

Hearing:	On the papers
Counsel:	N R Hall for the Plaintiffs A Gilchrist for the Defendant
_Judgment:	_{24 February 2015}

This judgment was delivered by me on 25 February 2015 at pm, pursuant to r 11.5 of the High Court Rules

[1] The Herald on Sunday has applied for access to the statement of claim. The reason for the request is to prepare a report for the newspaper.

[2] Counsel for the defendant, Mr Gilchrist, does not oppose the media being allowed access to the file. However, his response is that if access is to be granted, it should be to the entire file so that the media can view both sides of the dispute. Mr Gilchrist is concerned that if only access to the statement of claim is allowed, this would produce an unbalanced view of the matter.

[3] Counsel for the plaintiffs did not make any substantive response to the media application nor to the response that was received from Mr Gilchrist.

[4] On 2 February 2015, Ellis J gave directions for an urgent one day fixture to be allocated to hear the plaintiffs’ application for an interlocutory injunction and related orders. This has been set down for 5 March 2015.

[5] Access to court documents in civil proceedings is governed by Part 3, subpart

3.11 Access to court files, documents, and formal court record in other cases

If a person is not eligible to access a document, court file, or any part of the formal court record under any of rules 3.7 to 3.9, the person may access the document, court file, or any part of the formal court record with the permission of the court, given on an application made under rule 3.13.

¹Rules 3.7-3.9 do not apply. Rule 3.7 provides a right of access for certain applications under the Administration Act 1969, r 3.8 allows parties to a proceeding to access the court file and r 3.9 deals with access to documents during the substantive hearing stage.

3.13 Applications for permission to access documents, court file, or formal court record other than at hearing stage

(1) This rule applies whenever the permission of the court is necessary under these rules and is sought to access a document, court file, or any part of the formal court record, except where access may be sought under rule 3.9.

(2) An application under this rule is made informally to the Registrar by a letter that—

(a) identifies the document, court file, or part of the formal court record that the applicant seeks to access; and

(3) The application is heard and determined by a Judge or, if a Judge directs the Registrar to do so, by the Registrar.

(4) On receipt of an application made in accordance with subclause (2), the Judge or Registrar may direct that the person file an interlocutory application or originating application.

(5) The applicant must give notice of the application to any person who is, in the opinion of the Judge or Registrar, adversely affected by the application.

(6) The Judge or Registrar may dispense with the giving of notice under subclause (5) if it would be impracticable to require notice to be given.

(7) The Judge or Registrar may deal with an application on the papers, at an oral hearing, or in any other manner the Judge or Registrar considers just.

[7] Under r 3.14, the Judge or the Registrar may refuse or grant an application under r 3.13 in whole or in part, without conditions or subject to any conditions that the Judge or the Registrar thinks appropriate.

[8] Rule 3.16 provides for matters that are to be taken into account in determining an application under r 3.13:

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:

(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:

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

[9] The r 3.16 factors do not represent a hierarchy. There is no presumption in favour of disclosure; therefore the principle of open justice is not the paramount consideration.²A balancing exercise is required. This approach has been recently endorsed by the Court of Appeal in Schenker AG and Schenker (NZ) Ltd v Commerce Commission.³

[10] The current proceeding relates to a land dispute between neighbours. The plaintiffs allege that the defendant intends to erect a building which is in breach of a covenant in favour of the plaintiffs. The plaintiffs have applied for interim relief to restrain the respondent from erecting any building which exceeds a certain height. The defendant considers that the building it proposes to build fully complies with the terms of the covenant.

[11] Media applications made prior to the substantive hearing phase have been considered in several cases. In Commissioner of Inland Revenue v Methodist Church Samoa New Zealand Massey Parish,⁴the media applied to view the entire file in order to prepare a story on the proceeding. Both sides in that case opposed access for several reasons, including that the pleadings were about to be amended and that the parties were in ongoing discussion regarding a possible settlement. Duffy J

_{concluded that access should be declined so as not to jeopardise the
chances of}

³_{Schenker AG and Schenker (NZ) Ltd v Commerce Commission
[2013] NZCA 114 at [23].}

⁴Commissioner of Inland Revenue v Methodist Church Samoa New Zealand Massey Parish

achieving a settlement. She said further, that as the pleadings were not yet finalised, the pleadings on the file may be inaccurate.⁵

[12] In GFD I LLP v Melview (Kawarau Falls Station) Investments Ltd (in Rec),⁶

Winkelmann J considered an application made on behalf of 67 claimants in other related proceedings. The plaintiffs did not oppose the application. The defendant opposed the application and said that the disclosure sought was too broad and no detail was given as to how each group of documents sought related to the proceeding in question. Winkelmann J’s reasons for declining the application addressed the defendant’s opposition to the application:⁷

[16] This application is made prior to the substantive hearing phase. Therefore the principle of open justice, relating as it does to the fair and accurate reporting of court hearings, has much less force in this application than privacy considerations. In this case the applicants seek access to the entire contents of the Court file — far wider access than would be permitted at the substantive hearing phase. Yet they do not show any legitimate interest in the contents of the file beyond the pleadings. Parties file applications at an interlocutory stage and typically make various allegations in memoranda and affidavits. Some of those allegations are not responded to by parties in the full confidence that when a matter gets to a substantive hearing, issues which remain relevant can be fully addressed and an appropriate focus brought to bear upon the critical factual and legal issues.

[17] For these reasons absent good reason being shown for access to the documents filed in connection with the procedural phase of the Melview and settled proceedings, I am satisfied that such access should not be granted.

[13] In Sylvia Park Business Centre Ltd v Brookfield Multiplex Construction (NZ) Ltd (in liq), Faire J, in declining an application for access to court documents, referred to some of the reasons for the plaintiff ’s opposition to the application. The Judge concluded: ⁸

[10] This application is made in the early days of this litigation. The parties' statements of claim and statements of defence are untested allegations. Publication of their contents, therefore, will serve no useful purpose. The High Court Rules require the parties to cooperate to bring a case to hearing. Scrutiny by outside parties is unlikely to assist as they

dispose of interlocutory matters. I am not satisfied that the orderly administration of justice in this case supports the disclosure that is sought.

[14] In all three cases cited above, at least one party has opposed the media application for access to court documents. In this case, the defendant is not opposed to the media having access to the entire file and the plaintiffs’ counsel has not responded.

[15] It is clear that courts tend to place more emphasis on protecting the parties’ privacy and the orderly and fair administration of justice for applications that are made prior to the substantive hearing. However, when neither side opposes the application, this suggests that these matters are not particularly relevant to the application. Further, there do not seem to be particular privacy concerns on the face of the court file.

[16] In the circumstances, access to the pleadings may assist in fair and accurate reporting of the proceedings.⁹

[17] In balancing the relevant factors, I consider that the application for access to court documents should be granted.

[18] The applicant is granted access to the pleadings in relation to this proceeding being statement of claim, statement of defence, application for interlocutory

High Court of New Zealand Decisions

Menzies v Omanu Holdings Limited [2015] NZHC 273 (24 February 2015)