MB TECHNOLOGY LTD v ORBIS BLOCKCHAIN TECHNOLOGIES LTD [2022] NZHC 1264 [1 June 2022] IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE COMMERCIAL PANEL CIV - 2020 - 404 - 1541 [2022] NZHC 1264 BETWEEN MB TECHNOLOGY LTD Plaintiff AND ORBIS BLOCKCHAIN TECHNOLOGIES LTD First defendant DAVID SHU - HAN YU Second defendant Continued overleaf Hearing: On the papers Counsel : J S Cooper QC, S A Barker, and L C Sizer for plaintiff M Heard and J L Beverwijk for first, fifth and sixth defendants AJB Holmes for second and third defendants C P Browne and CJL Martin for fourth defendant Date of judgment: 1 June 2022 JUDGMENT OF JAGOSE J [Access to Court documents] This judgment was delivered by me on 1 June 2022 at 11.30am , pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar Counsel/Solicitors: J S Cooper QC, Auckland AJB Holmes, Barrister, Auckland Buddle Findlay, Wellington / Auckland Lee Salmon Long, Auckland Koo Telle, Auckland Wilson Harle, Auckland Copy to: B usinessDesk, Auckland DANIEL JOHN CROTHERS Third defendant ECOMI TECHNOLOGY PTE LTD Fourth defendant DENISE MULLINGS Fifth defendant JAHANZAIB KHAN Sixth defendant [1] For BusinessDesk , Victoria Young seeks access to the defendants’ applications for strike out and summary judgment, “defences” (presumably meaning any opposition), and counsel’s submissions filed for hearing before me on 23 – 24 May 2022, and otherwise “documents relating t o” the hearing and “[a]ll minutes judgments and direction s on the file” [2] Ms Young wishes to look at the documents “for news reporting”, observing there to be “[p]ublic interest in this company which has courted public attention in the past” (annexing her earlier reporting of a related proceeding) and (citing Electrix v Fletcher [2019] NZHC 2678 at [11] ) “[t]he case has reached open court therefore [there] must be a presumption of [openness]”. She adds: If your honour is concerned he could impose the condi tion that contents of the submissions are not to be publicised until after they have been given in open court, and any publication is to reflect any qualifications or amendments to the submissions ultimately delivered. See Ink Patch Money v RBNZ [2022] NZH C 840 at [19]. [3] MB Technology abides my decision on Ms Young’s applications. While acknowledging Ms Young prim a facie is entitled to access the formal court record, the defendants generally are opposed to her wholesale access to the documents she seeks on g rounds of privilege, confidentiality and commercial sensitivity, noting — as interlocutory applications — the Rules anticipate a different balance than the open justice considerations favoured by Ms Young. They seek redactions to two minutes and otherwise seek “a reasonable opportunity to review all of the materials filed and propose exclusions and redactions”. Contemporaneously, the defendants seek “staged” release of my pending judgment “to allow the parties to propose by way of memorandum [any] confiden tiality protections”. [4] Ms Young replies any balancing favours her interests to have access to what she “would have ... seen and heard” if present at the hearing: “open justice requires the public to be able to understand what was put before the court so it ca n scrutinise a judgment if necessary”. She adds “[the] horse has bolted” on confidentiality as judgments already are in the public domain. Applicable law [5] Subject to “the court’s inherent power to control its own proceedings”, 1 access to court documents is controlled by the Senior Courts (Access to Court Documents) Rules 2017 . People may obtain access to court documents either by right, or with the Court’s permission, but in either case (as is relevant here) subject to any limit or prohibition imposed by th e Court. 2 [6] Of further materiality here — while Rule 8(1) gives “[e] very person ... the right to access the formal court record relating to a civil proceeding ”, and the formal court record includes “ a judgment, an order, or a minute of the court, including a ny record of the reasons given by a Judge ” 3 — a ‘civil proceeding’ “ does not include an interlocutory application ” (meaning “ in the case of a civil proceeding, for some relief ancillary to that claimed in a pleading ”). 4 Presently at issue are such interlocutory applications. [7] Otherwise “a person may ask to access any document” (including an interlocutory application), 5 on application among other things “set[ting] out sufficient particulars of the document to enable the R egistrar to identify it ” and “ giv [ing] reasons for asking to access the document, which must set out the purpose for which the access 1 Senior Courts (Access to Court Documents) Rules 2017, r 5 2 Rule 6. 3 Rule 4, definition of “formal court record”. 4 Rule 4, definitions of “civil proceeding” and “interlocutory application”. 5 Rule 4, definition of “document”. is sought ”. 6 Rule 12 specifies the matters required to be taken into account as relevant in considering such requests: (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 individua ls, 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 an y 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. [8] Rule 13 specifies the approach to be taken in applying rule 12: before the substantive hearing — in relatio n to a civil proceeding, partially defined as being “other than the hearing of an interlocutory application ” 7 — the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require access to documents be l imited; open justice has greater weight during the substantive hearing than at other stages of the proceeding. 8 Discussion [9] As is plain from the Rules, requests for access are to be made for specified individual documents. Blanket requests are inadequate. The ‘formal court record’ to which everyone has access as of right includes lists of those documents or court files 9 Ms Young is entitled to access the register of documents filed in this proceeding. From such inspection she may be able to identify any i ndividual documents she wishes to 6 Rule 11. 7 Rule 4, definition of “substantive hearing”. 8 Rule 13. 9 Fuji Xerox NZ Ltd v Whittaker [2018] NZHC 1043 at [11] – [13]. access, in addition to those she is entitled of right. Given the default position counsel will be consulted on any request for such access, it may be Ms Young first should seek counsel’s advice if access is opposed. It may be terms for disclosure can be agreed or, to the extent not, isolated for determination. [10] I am not enthusiastic about the defendants’ retrospective claims for redaction, especially of other Judges’ minutes many months after their issue. On the other hand, in related proceedings effectively referred to in some of those minutes, 10 the Court of Appeal ordered its results judgment and reasons decision were “not to be published”. The Court’s order is not affected if they are “in the public domain” as Ms Young in dicates And the minutes otherwise relate to interlocutory applications. Ms Young thus is not entitled to those minutes as of right. [11] Last, the parties’ written submissions include reference to privileged, confidential and commercially sensitive matters wh ich warrant their withholding from Ms Young, particularly as she will have access to my judgment, which — like any judgment — is written at least in part to ensure all audiences can understand why and what it decided. The judgment must speak for itself. 11 Result [12] Applying Rule 12’s considerations on Rule 13’s approach, Ms Young has access to the register of documents filed in this proceeding and my interlocutory judgment, issued contemporaneously with this judgment but embargoed from publication until 12 noo n on Thursday, 2 June 2022 , to enable counsel earlier to advise any concerns for its content. However, to my mind, my interlocutory judgment avoids particularising the concerns counsel identified at the hearing. — Jagose J 10 MB Technology Ltd v Ecomi Technology Pte Ltd [2020] NZCA 363 and 371. 11 Pheroze Jagose “ Judicial decision - making: what do (trial) judges do ? ” (paper presented at Auckland District Law Society seminar, 3 March 2020) at [43].