The Town of Jupiter, Florida v Endeavour Capital Limited

[2021] NZHC 3057

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-464

[2021] NZHC 3057

UNDER

the Companies Act 1993

BETWEEN

THE TOWN OF JUPITER, FLORIDA

Plaintiff

AND

ENDEAVOUR CAPITAL LIMITED

Defendant

Hearing:	On the Papers
Counsel:	D J Friar and N F D Moffatt for Plaintiff No appearance Defendant
Judgment:	11 November 2021

JUDGMENT OF ISAC J

[Access to Court documents]

Introduction

[1]                 The New Zealand Herald applies for access to court documents, namely the statement of claim and verifying affidavit, filed in this proceeding. Although not explicit, I apprehend that the purpose of the application is for use in media reporting concerning the recent liquidation of the defendant company.

[2]                 The plaintiff consents to the application. The liquidators appointed for the company have not provided a response to the Court.

[3]                 Access to court documents is governed by the Senior Courts (Access to Court Documents) Rules 2017.

THE TOWN OF JUPITER, FLORIDA v ENDEAVOUR CAPITAL LIMITED [2021] NZHC 3057 [11

November 2021]

[4]                 Any person may ask for access to any document by providing the Registrar with a written request.1

[5]                 Rules 12 and 13 guide the Court in determining whether to grant access. I must consider the nature of and reasons for the request, and the matters listed in r 12, namely:

(a)the orderly and fair administration of justice:

(b)the right of a defendant in a criminal proceeding to a fair trial;

(c)the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice:

(d)the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person:

(e)the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions):

(f)the freedom to seek, receive, and impart information:

(g)whether a document to which the request relates is subject to any restriction under rule 7:

(h)any other matter that the Judge thinks appropriate.

[6]                 No one factor takes primacy over others. All relevant factors must be balanced against each other, with the weight to be given to each factor a matter of evaluation.2 However, r 13(c)(i) and (ii) indicates that after the substantive hearing, open justice has greater weight in relation to documents that have been relied on in a determination than other documents, but protection of confidentiality interests has greater weight than would be the case during the substantive hearing.

Analysis

[7]                 The substantive hearing, at which an order for liquidation was made, has been heard.3 I have had regard to the matters to be considered in r 12. I consider access by

1      Rule 11(2).

2      Crimson Consulting Ltd v Berry [2018] NZCA 460, (2018) 25 PRNZ 447 at [16] and [32].

3      The order was made by Associate Judge Johnston on 26 October 2021.

media agencies to the documents is one which furthers public interest in the proceeding, and the principle of open justice. Given the proceeding is now determined, open justice has greater weight, as recognised by r 13(c)(i). There are no countervailing factors that would support withholding access.

Orders

[8]                 For the forgoing reasons, I grant the application and direct the release of the statement of claim and verifying affidavit to the applicant.

Isac J

Solicitors:
Bell Gully, Auckland for Plaintiff