Housing New Zealand Corporation v Sharp Electrical Services Limited [2015] NZHC 433 (11 March 2015)

Last Updated: 21 April 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000011 [2015] NZHC 433

BETWEEN	HOUSING NEW ZEALAND CORPORATION Plaintiff
AND	SHARP ELECTRICAL SERVICES LIMITED First Defendant CLIFFORD NORMAN SHARP Second Defendant

Hearing:	(On the papers)
Counsel:	Grant Illingworth QC and Chris Patterson for the Plaintiff Shane Kilian for the Defendants
Judgment:	11 March 2015

_{JUDGMENT OF MOORE J}

This judgment was delivered by on 11 March 2015 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Mr Illingworth QC, Auckland

Mr Patterson, Auckland

Mr Kilian, Auckland

HOUSING NEW ZEALAND CORPORATION v SHARP ELECTRICAL SERVICES LIMITED & ANOR [2015] NZHC 433 [11 March 2015]

[1] Fairfax Media apply to access the Court documents held on file in relation to this matter.

[2] In the statement of claim dated 6 January 2015 Housing New Zealand Corporation (“HNZC”) sues Sharp Electrical Services Limited (“SES”) and Clifford Norman Sharp, its director, in breach of contract and breach of the Fair Trading Act

1986. HNZC claims that SES caused its staff to undertake work on HNZC properties knowing they were not qualified to carry the work out, undertook unsafe work, replaced stoves that did not require replacement, assisted SES to claim payment for services the company was not entitled to and assisted SES in the conversion of HNZC’s property, in particular stoves and ovens. In a second cause of action HNZC claims that SES and Mr Sharp engaged in misleading and deceptive conduct in breach of the Fair Trading Act 1986 by providing false code compliance certificates and electrical safety certificates, making claims for work undertaken by staff who were not appropriately qualified and falsely advised HNZC that work was required to be undertaken at its properties. HNZC seek damages in the sum of

$200,000.

[3] SES and Mr Sharp have filed a statement of defence and counterclaim effectively denying the claims and, furthermore, counterclaiming that HNZC unilaterally and without justification caused contracts which the defendants had with third parties to be terminated by instructing the third parties to cease offering work to SES.

[4] The application to access the Court’s file by Fairfax is economical. It simply states that Fairfax wishes to access Court documents relating to “Sharp Electrical Services”. The reason for the request is stated to be “To prepare a story”.

[5] The rules governing access to civil files and documents are is governed by rr 3.5 to 3.16 of the High Court Rules and the High Court (Access to Court Documents) Amendment Rules 2009.

[6] The present application must be considered under r 3.13 which relates to applications for permission to access documents, Court file, or formal Court record other than at the hearing stage.

[7] This requires the application to be made informally to the Registrar by letter:

(a) identifying the Court file or part of the Court record the applicant seeks to access; and

(b) the reasons for the application.

[8] The application is required to be heard and determined by a Judge unless the

Judge directs the Registrar to do so.¹

[9] The applicant must give notice of the application to any person who, in the opinion of the Judge or the Registrar, is adversely affected by the application.²

[10] Under r 3.14 the Judge may refuse an application made under r 3.13 or grant it in whole or in part without conditions or subject to any conditions the Judge

thinks appropriate.

[11] The matters which the Court is required to take into account in considering such an application are listed in r 3.16 which provides as follows:

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;}

¹ _{High Court Rules, r 13.13(3).}

² High Court Rules, r 13.13(5).

(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.

[12] The authorities dealing with applications brought under the predecessor of the 2009 Rules require cautious consideration. Under the former Rules the Courts were required to determine whether an applicant had a "genuine or proper interest" in accessing the Court documents. However, it is apparent from r 3.16 that the test for access has changed. Under the new Rule the Judge is required to consider the nature of and the reasons for the application and to take into account the matters listed in (a) to (f) to the extent they are relevant to the application.

[13] The Court of Appeal decision in Schenker Ag v Commerce Commission is the leading authority on the approach to be adopted under r 3.l6.³ There the Court upheld the High Court's decision to decline access on the grounds that no good reason for access had been provided and access would undermine the confidential basis on which the information had been provided and would allow commercially sensitive material to be disclosed. The Court re-affirmed that the factors contained in r 3.16 are not hierarchical and that a balancing exercise is required.

[14] In the present case the balancing exercise involves, on the one hand, recognising the principle of freedom to speak, receive and impart information as well as the principle of open justice and encouraging fair and accurate reporting of and comment on Court hearings and decisions. On the other hand these considerations must be balanced against the orderly and fair administration of justice and the

_{protection of confidentiality and privacy interests.}

³ Schenker Ag v Commerce Commission [2013] NZCA 114.

[15] There can be little doubt that a case involving allegations of the misuse of public funds engages the public interest considerations in r 3.l6 and, in particular, the principle of open justice and the encouragement of fair and accurate reporting. However, against those considerations I accept the submission of Mr Illingworth QC, on behalf HNZC that the proceedings are at an early stage. He describes them as being "in a state of flux".

[16] He also observes that in obtaining search orders of the sort HNZC seeks the privacy and other interests of the defendants are necessarily intruded upon. Initially the orders were obtained on an ex parte basis although SES and Mr Sharp were given a limited opportunity to participate and respond.

[17] SES and Mr Sharp have filed a statement of defence and counterclaim. The statement of defence, in particular, reserves the parties' position to plead more fully when further information becomes available either through discovery or some other means.

[18] Counsel for the defendants opposes Fairfax's application although no specific grounds are advanced.

[19] In all the circumstances I am satisfied that the principles of open justice and the freedom to seek, receive and impart information do not outweigh the considerations of the orderly and fair administration of justice, the protection of confidentiality and privacy interests. I also place particular weight on the concern that if the Court record was searched and the contents and results of that search published, it would be impossible for any reporting to be fair and balanced given the relative infancy of these proceedings and the fact that a more balanced and fulsome record will be available when the various pre-trial manoeuvres are at an end and the matter is ready for trial.

[20] Accordingly, I am not prepared grant Fairfax's application at this time. This does not necessarily mean that a further application made at a time when discovery has been completed and the pleadings are closed would not have a greater likelihood

of success. That would need to be determined if and when another application is made and subject to the nature and extent of the Court record.

[21] However, at this early stage and for the reasons set out more fully above, I

am not prepared to grant the application.

_{[22] The application is refused.}

Moore J