Hawke's Bay Regional Council v Herbert Construction Company Limited

[2015] NZHC 1060

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV 2012-441-161 [2015] NZHC 1060

BETWEEN

HAWKE'S BAY REGIONAL COUNCIL

Plaintiff

AND

HERBERT CONSTRUCTION COMPANY LIMITED

First Defendant

Hearing:	On Papers
Judgment:	19 May 2015

JUDGMENT OF SIMON FRANCE J

Introduction

[1]      On 29 April 2015, Mr Sharpe of Fairfax Media applied to search this file.  He noted he had been following the matter which has now settled, and had previously reported on some aspects of the case.   The application was to search the file or alternatively be advised of the various parties involved.

[2]      Kόs J directed the matter be referred to the parties.  The plaintiff, Hawke’s Bay Regional Council, abides.  Opposition has been filed by the second and fourth defendants.

[3]      The proceedings concern a building claim.   They were commenced in the Court on 28 March 2012 against the first defendant only.  The first defendant in turn made claims against various third parties (eight in all).   Subsequently the plaintiff amended  its  claim  to  include  several,  but  not  all,  of  the  third  parties.    One

interlocutory judgment was issued involving an unsuccessful application by a third

HAWKE'S BAY REGIONAL COUNCIL v HERBERT CONSTRUCTION COMPANY LTD [2015] NZHC 1060 [19 May 2015]

party for summary judgment against the defendant with respect to its third party. That judgment provides a general overview of the proceedings.1

[4]      Sometime in July 2013 the first defendant went into liquidation, leading to a discontinuance of all its third party claims.   However, the plaintiff ’s own revised claim  against  several  of  the  third  parties  remained.    There  were  then  various telephone conferences and administrative hearings until, on 13 April 2015, notice was filed discontinuing all proceedings.

Applicable Rules and authority

[5]      The substantive hearing never commenced, and accordingly the application is covered by High Court Rules 3.11, 3.13 and 3.16.  The Rules have been considered in several judgments, and I do not need to add to the analysis.2     Six mandatory relevant considerations are noted in R 3.16.  Consensus has emerged that there is no hierarchy.  Each factor must be taken into account, and no doubt the circumstances of a particular case will dictate where pre-eminence lies.

This application

[6]      The submissions opposing the application emphasise the early stage the proceedings were at when the matter was settled.  Allegations had been made and denied,  but  that  is  all.    No  evidence  was  filed,  and  it  submitted  unjustified reputational damage might occur.  Other points noted are that:

(a)       at the time of discontinuance no documents had been read in open court;

(b)early settlement is to be encouraged and it may be a disincentive if open search of untested pleadings is then permitted;

1      Hawke’s Bay Regional Council v Herbert Construction and Ors [2013] NZHC 1068.

2      See  Schenker  AG  v  Commerce  Commission  [2013] NZCA 114, and Danone  Asia  Pacific Holdings Pte Ltd and Ors v Fonterra Co-Operative Group Ltd [2014] NZHC 393, and the cases cited at fn 5.

(c)      the settlement itself is not part of the court record and is subject to confidentiality. Accordingly the file will reveal only the untested (and denied claims) and not assist with any greater understanding.

Decision

[7]      The  application  is  declined.     I  here  place  emphasis  on  the  orderly administration of justice.  I agree that early resolution of claims such as these is to be encouraged.  When it occurs, weight should be given to protecting defendants from the harm that could ensue from disclosure of untested allegations.

[8]      I have not overlooked the public nature of the plaintiff, and recognise this might increase the public interest (factors (c) and (d)).  However, the subject matter of the dispute does not particularly engage the plaintiff’s public administration role. It is rather a routine commercial dispute about the quality of a building construction. I also note that the plaintiff is subject to other information access rules which are unaffected by this decision.

[9]      There  is  no  specific  or  particular  reason  identified  by  the  applicant  for needing to search.  Accordingly, the standard public interest in access to court documents  applies,  but  is  not  heightened  by  the  circumstances  of  the  case. Balancing all these factors, I decline the application to search, or to further identify

the parties beyond that which is in the public domain.

Simon France J