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

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”

Related Topics
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions