New Zealand: Open justice may be open season, but not here , not yet - public access to court documents

Brief Counsel
Last Updated: 21 April 2012
Article by Justin Graham
Most Read Contributor in New Zealand, September 2016

The easier public access to court documents given under High Court Rules issued in 2009 has been reinforced by recent court decisions, here and in England.

That is good news for the media and good news for "follow on" damages claimants. But it may be bad news for applicants for leniency from the Commerce Commission.


In February this year, Justice Asher declined a request by the freight-forwarding company Schenker to access Court records compiled expressly for Commerce Commission proceedings against various airline companies (Commerce Commission v Air New Zealand Limited & Ors [2012] NZHC 271).

Schenker sought access to the documents in order to assess whether it could have claims (here or elsewhere) against the airline companies. The records involved a large amount of confidential information, including about non-parties (some of which also opposed release). Producing redacted versions of that information would have been a substantial burden on the parties.

Justice Asher stated that the 2009 reforms did not mean that there was now a presumption in favour of disclosure but rather that open justice, and the freedom to seek, receive and impart information were principles to be balanced against other considerations, such as the fair administration of justice and the protection of confidentiality interests.

The problem for Schenker was that the latter considerations were strong and Schenker's need for the information was not so strong. But context is everything and it is possible that an application by the media might have been treated more favourably.

Justice Asher drew a distinction between the interests of the media (which engage the open justice principle), and the interests of private parties (which engage the principles of freedom of expression).

The Guardian

Such was the experience of the Guardian newspaper in a decision in early April from the England and Wales Court of Appeal (Guardian News and Media Ltd, R (on the application of) v City of Westminster Magistrates' Court [2012] EWCA Civ 420).

The Guardian sought access to information from extradition proceedings brought by the US Government against two individuals alleged to have been involved in the bribery of Nigerian officials by a subsidiary company of Halliburton. Guardian reporters could not attend the entire trial and so sought copies of documents which had been referred to in Court. The first instance judge declined this application but access was allowed on appeal.

The Court of Appeal's decision was complimentary of the New Zealand Law Commission review which led to our 2009 amendments and also quoted liberally from our Supreme Court's decision in Rogers v Television New Zealand Limited [2007] NZSC 91.

Lord Justice Toulson adopted the opposite starting point from Justice Asher (acknowledging that in doing so he was breaking new ground).

He thought that the Courts should assist rather than impede an application for access, unless some strong contrary argument could be made. His Lordship considered that where access was sought for a proper journalistic process, the case for allowing it would be particularly strong. A fact-specific proportionality assessment would be required but the countervailing risks would especially relate to vulnerable litigants, such as children, and the elderly and infirm (agreeing with our Law Commission on this point).

National Grid Electricity Transmission (NGET)

Across the lane, and the very next day, Justice Roth in the Chancery division issued a judgment in a claim brought by NGET against 23 companies which had been involved in a cartel regarding the supply of gas insulated switchgear (National Grid Electricity Transmission Plc v ABB Ltd & ors [2012] EWHC 869 (Ch)).

After the cartel was exposed by the European Commission, NGET made a "follow-on" damages claim for losses it had suffered as a result of the cartel's overcharging. NGET sought disclosure of documents from the defendants, but some of the defendants had been leniency applicants to the European Commission. NGET thought it should be able to see the leniency materials.

The Commission was concerned to ensure that any disclosure was proportionate to ensure that future applicants would not be deterred by the risk of subsequent disclosure. The Court agreed, but said that proportionality should be assessed in simple terms of whether the information is available from other sources, and its relevance to the proceeding.

Justice Roth dismissed the notion that leniency applicants had legitimate expectations that their statements would be protected from disclosure. Leniency, and even immunity, applications provided no immunity from subsequent civil suit.

In the result, the Court decided to exercise its power to inspect the relevant materials first, and then split the difference somewhat in the result, allowing access to some materials but not others and deferring some issues for another day.

Chapman Tripp comment

Although a discovery decision, the NGET case is a variant on the open justice theme. That a busy High Court Judge was prepared to review a substantial amount of material himself rather than take an all or nothing approach indicates that the Courts are taking the obligation of public justice very seriously.

In terms of where New Zealand sits, we would expect the Guardian decision to be influential, and that private parties with stronger claims than Schenker's would have far better prospects of success with access applications.

The media should also be very well positioned in these applications. Conversely, making arrangements with the Commerce Commission for the protection of confidential leniency materials may just have become rather problematic (provided those materials are or may become relevant to a litigant).

The administrative burden on the Courts, and on parties to litigation, may increase as a result of this trend. That is the price of transparency.

The information in this article is for informative purposes only and should not be relied on as legal advice. Please contact Chapman Tripp for advice tailored to your situation.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Justin Graham
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.