COMMISSIONER OF INLAND REVENUE v LASCELLES [2023] NZHC 3438

COMMISSIONER OF INLAND REVENUE v LASCELLES [2023] NZHC 3438 [29 November 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2008-409-391[2023] NZHC 3438IN THE MATTER of the Insolvency Act 2006ANDIN THE MATTER of the bankruptcy of RICHARD MICHAELLASCELLESBETWEEN THE COMMISSIONER OF INLANDREVENUEPlaintiffAND RICHARD MICHAEL LASCELLESDefendantCIV-2021-409-313IN THE MATTER of the Insolvency Act 2006ANDIN THE MATTER of the bankruptcy of RICHARD MICHAELLASCELLESBETWEEN TOTAL ACCESS LIMITEDPlaintiffAND RICHARD MICHAEL IVAN LASCELLESDefendantHearing: (Determined on the papers)Counsel: S Kilgallon (in person) applicant for accessG P Davis for R M LascellesJudgment: 29 November 2023JUDGMENT OF OSBORNE JThis judgment was delivered by me on 29 November at 4.00 pm pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy RegistrarDate:Background[1] Richard Lascelles has been twice bankrupted. First, on 20 October 2008 onthe application of the Commissioner of Inland Revenue. Secondly, on 11 November2021, on the application of Total Access Ltd. He has not been discharged from hissecond period of adjudication.Application for access to court documents[2] Steve Kilgallon, a national correspondent employed by Stuff Ltd, applies foraccess to the court file in each of the proceedings. The application is made under r 11,Senior Courts (Access to Court Documents) Rules 2017. Mr Lascelles' applicationcomplies with the requirements for such applications. He states that he wishes to lookat the documents because Mr Lascelles has been bankrupt twice and has twice beencriminally convicted for activities while running business. Stuff is considering a storyabout Mr Lascelles' business activities. Mr Kilgallon suggests the reporting isjournalism of high public interest, given the risks of the public engaging in businesseswith a material link to Mr Lascelles. Mr Kilgallon records that obtaining the detailsof Mr Lascelles' bankruptcies, beyond the detail in the Gazette notices, will informfull, fair and balanced reporting.[3] The request for access was duly referred to the parties to each of theproceedings. The Commissioner abides the Court's decision. Total Access Ltdconsents to the application.[4] Through Mr Davis, Mr Lascelles initially responded by memorandum settingout a number of grounds of opposition, which I summarise:(a) Mr Lascelles, following his 2021 adjudication, had settled the debt ofTotal Access Ltd in full and intended to have the bankruptcy"annulled";(b) since bankruptcy he has not owned any business and has no continuingbusiness activities;(c) there is no public interest in the historical proceedings;(d) information about his previous bankruptcy and his associatedprosecution were well publicised at the time so that disclosure of furtherinformation is not necessary;(e) the access sought — to the court files for both proceedings — isunjustifiably broad;(f) disclosure would likely unfairly prejudice Mr Lascelles and possiblyhis wife because, for example, the present bankruptcy arose from a"mistake and accidental non-appearance at the hearing" and the debtwas subsequently settled in full;(g) Mr Lascelles suffers from health problems so that his personalwellbeing and his family's interests outweigh any public interest in thedocuments;(h) there is no public interest in the documents sought.[5] In light of the matters traversed in Mr Davis's memorandum, I issued a Minuterequiring further information from Mr Davis in relation to three particular matters:(a) further information as to Mr Lascelles' overall indebtedness at the timeof his 2021 adjudication and why it has taken this long to apply fordischarge from bankruptcy (it seeming to be clear that he would beineligible for annulment);(b) a further explanation of the suggestion that the 2021 adjudicationresulted from a "mistake and accidental non-appearance", given theCourt record indicated a series of non-responses from Mr Lascelles;and(c) further detail to support the allegations made by Mr Lascelles as to hiscurrent personal circumstances.[6] In the Minute I recorded that, on the information so far available, my tentativeview was that Mr Kilgallon should be granted permission to access most of thedocuments on the court file.[7] I also recorded in the Minute that I would not be inclined to impose anycondition on access that Mr Kilgallon include a statement in any publication ofinformation obtained from the documents to the effect that Mr Lascelles had"inadvertently missed the hearing and subsequently paid the associate debt in fullshortly thereafter". Mr Davis had suggested, in the event access was to be granted,that there should be such a condition. He referred to this Court's decision on a previousaccess application in Metalworks NZ Ltd v Hawthorndale Estate Ltd.1 I explained tothe parties in my Minute that I viewed Hawthorndale as involving a different situationto the present, as the Hawthorndale proceeding had not resulted in a court order oradjudication, unlike this case where there have been adjudication orders which stand.[8] Mr Lascelles chose not to have Mr Davis provide a supplementarymemorandum responding to my Minute, despite the direction in the Minute. Mr Davisstated in a brief email that Mr Lascelles was "content for the application to bedetermined on the material currently before the Court".Discussion[9] I am satisfied in this case that the principle of open justice strongly outweighsany of the matters invoked in opposition by Mr Davis.[10] Mr Lascelles remains an undischarged bankrupt following his 2021adjudication. His failure over the extended period since he settled the Total AccessLtd debt to apply for, let alone obtain, a discharge from bankruptcy is unexplained andraises serious issues as to whether he is entitled to be discharged from bankruptcy.[11] The proposition that the 2021 adjudication resulted from a mistake andaccidental non-appearance at the adjudication hearing is unsupported by any proper1 Metalworks NZ Ltd v Hawthorndale Estate Ltd [2023] NZHC 1487.detail and is in fact contradicted by the court record which identifies his failure torespond to the bankruptcy notice as well as the adjudication application.[12] Mr Lascelles has not provided any detail to establish that there are particularhealth or family circumstances that the Court should bring into account in consideringthe present application.[13] I am satisfied that the application should be granted.Method of access[14] Mr Kilgallon has noted that he is based in Auckland and would prefer to haveelectronic access to the documents on the two files.[15] As the two files in question were bankruptcy files, the documents on them areheld in physical form and not electronically.[16] The permission granted to Mr Kilgallon will therefore be to access the filesphysically in the Christchurch Registry.Order[17] Mr Kilgallon is permitted to access at the Christchurch Registry the followingdocuments on the files in CIV-2008-409-391 and CIV-2021-409-313:(a) bankruptcy notice;(b) certificate of judgment;(c) request for issue of bankruptcy notice;(d) affidavit of service of bankruptcy notice;(e) summons to debtor;(f) application of creditor for order of adjudication;(g) affidavit supporting creditor's application;(h) affidavit of service of creditor's application;(i) any appearances in support;(j) any certificates of indebtedness;(k) order of adjudication;(l) any application for stay;(m) any memoranda of counsel; and(n) any Court Minutes.Osborne JSolicitors:Shaun Cottrell Law, ChristchurchCounsel: G Davis, Barrister, ChristchurchCopy to: S Kilgallon, Stuff Ltd