Update: And suddenly, the list is back
Auckland High Court noticeboards carried liquidations court lists last Thursday, without explanation of an about face from the previous 2 weeks, when the court first removed all company names from the lists – both plaintiffs & defendants – then decided to run the plaintiffs’ names but not the defendants’. The about-face conforms with my view that the court should make this information readily available unless there is a good reason not to. And the reason open to it is, according to the court rule 700J below, that 7 days haven’t passed since the defendant was served with the claim. It also conforms with my view that the publication of these names in a news story doesn’t constitute an advertisement in the sense that the court requires advertising to take place to meet the stringent requirements of liquidation procedure.
Auckland High Court takes umbrage Court chooses to suppress lists instead of improving its systems
High Court Rules, rule 700J: Except where a statement of claim filed pursuant to rule 700C is filed by the defendant company, no person shall, unless the Court otherwise directs, publish any advertisement required by rule 700I or any other information relating to that statement of claim until at least 7 days after the date on which the statement of claim in the proceeding is served on the defendant company.
The Auckland High Court decided, on the basis of this rule, to change the presentation of information on its Thursday liquidation list 3 weeks ago, and to change it again this week. Although I’ve been covering this court for The Bob Dey Property Report for 3½ years, the week of the court’s change was 1 of the handful I’ve missed. In the initial change, the court removed the names of the parties from the list, identifying cases only by their court file number. That file number is not customarily contained in advertisements of liquidation applications. Yesterday’s liquidation list was the 1st following the 18 September change. This time, applicants were identified but defendants weren’t. The action is in keeping with the Auckland High Court’s tradition over the past 20 years of regarding media as opponents in the realm of justice. The court’s action follows the high-profile publication of the progress of Inland Revenue applications to wind up companies controlled by Metropolis developer Andrew Krukziener. Even television & daily newspaper reporters appeared in the courtroom to see what was going on. As the only journalist regularly frequenting the liquidations court, I’ve kept readers of this website abreast of the court’s affairs, including applications to restrain advertising. That’s been a conscious decision, based on differentiation between an advertisement required for a formal court process (an ad placed in the Gazette & a local newspaper within a precise timeframe) and news. For my purposes, the relevant wording of rule 700J is: “No person shall… publish… any information relating to that statement of claim until… 7 days after… the statement of claim… is served.” Parties sometimes seek to restrain advertising, which hobbles the formal process. When the court master makes a decision on such an application concerning a property-related company, I regard it as news. I’m not part of the advertising process. In my U column on 4 September I wrote:
Applications on behalf of 7 of Metropolis developer Andrew Krukziener’s companies to stay Inland Revenue’s liquidation applications and to restrain advertising were abandoned on Friday, when a joint memorandum was filed with the Auckland High Court. Master Graham Lang said the memo said "the application has been rendered nugatory by the publicity it’s already received.”
The court then, and since, might have ordered the suppression of all publication on a particular application rather than supposing that everybody agrees that news equals advertising. Master John Faire had the opportunity to make a similar order yesterday in dealing with a restraint application, but also didn’t. I expect to write about that application, along with a fairly long list of other material, in the U column over the weekend. The restraint application was made by a highly newsworthy figure in the property industry. I’m pleased that none of the court masters has seen fit to suppress news coverage because the Krukziener case was covered in the public interest, as well as being of interest to the public. Applications to liquidate companies enter the public domain when they are filed, sometimes months before they appear on the court list. The 1st matter before the court yesterday was filed in May and was in a courtroom for the 1st time yesterday. Nowadays that timespan is unusual – more often an application will be aired within 6 weeks of filing. Sometimes an applicant will tell the court it has neither advertised the proceeding nor served papers on the defendant. Appearing in court on that basis seems an abuse of the court process and could be rectified by the court refusing to list proceedings until papers are served or an application is made for alternative service. Instead, the court has attacked the messenger, and wrongly. The liquidations court list hasn’t been placed on court noticeboards for a long time but is put out sparingly on the lawyers’ benches in the courtroom, a pointed rejection of the public’s interest in the affairs of the High Court. I regard that as treating the public of New Zealand with contempt, and in return the court deserves all the contempt that can be poured on it. The judiciary knows the public is not properly served with information, does nothing to rectify it, and so also deserves the public’s contempt. Handwritten on top of this week’s court list were these words:
”Subject to Rule 700J defendant companies cannot be printed. If you have any queries please see the court taker or the civil counter.”
As you can see above, that is not what Rule 700J says. I don’t set out to champion foolish causes, but simply to present information which is of value to people concerned with the property industry. This information is of considerable value, so I’ll carry on presenting it. This isn’t a bleat about how hard-done-by I — or any other media – may be, but to let you understand some of the restrictions on news coverage, some of the unnecessary, childish & foolish restrictions which also impact on the work of lawyers, and to test your views.
You may disagree entirely with my interpretation. You may have ideas on how to induce better thinking & systems in the Auckland High Court (some systems have been improved in recent years, but more needs to be done). Let me know: email [email protected]