Commerce Commission v Lodge Real Estate Limited [2018] NZHC 1633 (4 July 2018)

Last Updated: 24 September 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2015-404-3045 [2018] NZHC 1633

BETWEEN	COMMERCE COMMISSION Plaintiff
AND	LODGE REAL ESTATE LIMITED First Defendant cont .../2

Hearing:	[On the papers]
Counsel:	J C L Dixon QC, L C A Farmer and A L McConachy for Plaintiff L J Taylor QC and M A Cavanagh for First and Seventh Defendants D H McLellan QC, M S Anderson and J H Whitehead for Third and Sixth Defendants
Judgment:	4 July 2018

JUDGMENT OF JAGOSE J

This judgment is delivered by me on 4 July 2018 at 12.30pm pursuant to r 11.5 of the High Court Rules.

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

Registrar / Deputy Registrar

Counsel/Solicitors:

John Dixon QC, Auckland (Plaintiff) Meredith Connell, Auckland (Plaintiff)

Lesley Taylor QC, Wellington (1^st and 7^th Defendants) McElroys, Auckland (1^st and 7^th Defendants)

Daniel McLellan QC, Auckland (3^rd and 6^th Defendants) Wotton & Kearney, Auckland (3^rd and 6^th Defendants)

COMMERCE COMMISSION v LODGE REAL ESTATE LTD & ORS [2018] NZHC 1633 [4 July 2018]

.../2


LUGTON’S LIMITED
Second Defendant

MONARCH REAL ESTATE LIMITED
Third Defendant

ONLINE REALTY LIMITED
Fourth Defendant

SUCCESS REALTY LIMITED
Fifth Defendant

BRIAN KING
Sixth Defendant

JEREMY O’ROURKE
Seventh Defendant




[1] The Commission seeks permanent confidentiality orders in relation to identified documents received in evidence under interim confidentiality orders at the trial of this proceeding in September 2017. My substantive judgment of 2 November 2017 noted at [255]-[256] my interim orders were to be revisited, and made timetabling orders for such an application.

[1] In accordance with that timetable, the Commission seeks orders:

(a) preventing search or access of identified documents on the Court file without reference to counsel for the Commission and/or a further order of the Court;

(b) requiring identified documents not be disclosed to the defendants; and

(c) substituting the agreed bundle of documents held on the Court file with a revised bundle omitting any documents not received in evidence.
The identified documents – obtained by the Commission from the defendants or third parties, and being a subset of those subject to my interim orders – are said to remain confidential and/or commercially sensitive.

[2] The defendants agree to the Commission’s proposed treatment of documents accessible to them. I am satisfied from my review of the documents, including those not accessible to the defendants themselves (but accessible to their counsel), the Commission’s claims to confidentiality are justified, including for the reasons set out in the affidavit of Nigel Thomas William Jeffries, sworn 20 September 2017, which – given the delay in issuing this judgment, and the absence of any updating evidence – I have taken to remain current.

[3] Under Rule 5(2) of the Senior Courts (Access to Court Documents) Rules 2017, notwithstanding prescribed public and party rights to access documents held on the court file, I may “direct that judgments, orders, documents, or files of any kind may not be accessed without the permission of the Judge”. To the extent the considerations in rules 12 and 13 have application to such pre-emptive direction, I am also satisfied open justice post-trial is not affected, but the protection of confidentiality and privacy interests is furthered, by making the sought directions in relation to the identified documents.

[4] Last, I agree the Court file should only retain so much of the common bundle as was received in evidence, in terms of HCR 9.5(4) and (5). That is sensible formal record hygiene. (Electronic copies of the original common bundle remain held on Court servers, and are not proposed to be expunged.)

[5] I order:

(a) the documents identified in schedule 1 to this judgment, and which are held on the court file, may not be searched or accessed without reference to counsel for the Commission and/or a further order of the Court;
(b) the documents identified in schedule 2 to this judgment are not to be disclosed to the defendants without reference to counsel for the Commission and/or a further order of the Court; and

(c) the common bundle held on the court file is to be replaced with a revised common bundle to be provided by the Commission, containing only the documents received in evidence.

[6] Finally, as with my costs judgment of 26 June 2018, I regret the delay in issuing this judgment. Although the confidentiality memoranda were filed in accordance with my timetable orders, I was only provided them recently for my decision. In the interests of dispatch, this judgment is more cursory than it may otherwise have been.




—Jagose J