NZME v Nine judgment over potential sale of Stuff to remain redacted for 6 months, High Court rules

Redactions made to a court judgment after the Herald's owner NZME's attempt to buy media company Stuff will remain for another six months, a judge has ruled.

Justice Sarah Katz also said the publication of information contained in affidavits "would likely be harmful to Stuff and potentially beneficial to NZME as its competitor".

The High Court in May declined to grant NZME's interim injunction application over negotiations to buy Stuff from Australian firm Nine Entertainment.

Justice Katz said allowing NZME to maintain exclusive due diligence may increase the risk of Stuff ceasing operations, leading to significant job losses and reducing competition in the media marketplace.

Nine had said it felt the process had been frustrated and terminated negotiations with NZME.

Stuff was instead sold by Nine for a nominal $1 at the end of May to Stuff's chief executive, Sinead Boucher, ending years of speculation about the company's ownership and several unsuccessful attempts by NZME to buy or merge with the firm.

When Justice Katz's May 18 judgment was publicly released, however, it was partially redacted.

The three firms then returned to court last month to argue over the potential release of the redacted material and other documents.

Stuff's lawyer, Mark O'Brien, QC, opposed the release - a position which was broadly supported by Nine's counsel, John Dixon, QC.

NZME's lawyer, Jack Hodder, QC, meanwhile, took a "non-opposition" stance.

Today, Justice Katz told media she has directed that the redactions made to her injunction judgment will remain in place until December 3.

She also withheld her reasons in her written decision on the issue until the same date.

"Given that the redactions judgment refers at length to the redacted information, publication of the redactions judgment must necessarily also be deferred until 3 December 2020. It will be released on that date, together with an unredacted version of the injunction judgment," Justice Katz told counsel and some journalists in a minute today.

The judge also declined to publicly release some of the other material contained on the court file, including affidavits, after an application to inspect it was made by news website BusinessDesk.

"Much of the content of the affidavits is confidential and commercially sensitive," Justice Katz said in her ruling.

The affidavits, she explained, refer extensively to significant information provided by Nine to NZME under a strict confidentiality agreement and regime agreed in September 2019.

Justice Katz added that the affidavits have not been tested in court and Stuff has not had an opportunity to respond to them.

"NZME is a competitor of Stuff. Some of the information in the affidavits is competitor sensitive. Publication of such information would likely be harmful to Stuff and potentially beneficial to NZME as its competitor.

"Some of the competitor-sensitive information was also provided to the Commerce Commission by Nine, and later NZME, on the same basis of strict confidentiality. "

Several minutes from the proceeding, however, were released along with the statement of claim.

After Justice Katz's judgment in May, NZME withdrew its new application to the Commerce Commission for clearance to buy Stuff.

Boucher has said she plans to develop "an ownership model which will give staff a shareholding stake in the business".

Justice Katz said her May decision did not determine whether NZME or Nine was correct, but rather resolved the overall interests of justice.

She said the stronger argument appeared to favour holding Nine to the exclusivity agreement, but the "balance of convenience" weighed against granting the order.