HENDERSON v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2016] NZHC 421

HENDERSON v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2016] NZHC 421 [11 March 2016]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2010-409-000559[2016] NZHC 421BETWEEN DAVID IAN HENDERSONApplicantAND MINISTRY OF BUSINESS,INNOVATION AND EMPLOYMENTRespondentHearing: 9 March 2016Appearances: Appellant Appears In PersonK South for RespondentJudgment: 11 March 2016JUDGMENT OF GENDALL JIntroduction[1] On 30 November 2015 the applicant, David Ian Henderson (the applicant),filed in this Court a document headed "Interlocutory Application to Rescind Dated27/11/15". The application purported to:apply for a recission of Your Honour's (Associate Judge Osborne's) ordersmade pursuant to an email dated 30 October and a minute dated 17 November 2015.[2] Although there may have been some initial confusion over this, the application appears to be one for review of certain orders or decisions made by Associate Judge Osborne in this Court. The application is thus brought pursuant to r 2.3 of the High Court Rules and s 26P of the Judicature Act 1908. Matters before me proceeded on this basis.[3] Essentially, after discussion at the hearing of this application before me, the applicant confirmed that his application before the Court now is one for review onlyof those decisions made by Associate Judge Osborne in a minute he issued describedas "Minute 2" dated 17 November 2015 (Minute 2) at paragraphs [18] and [19].[4] Paragraphs [18] and [19] of Minute 2 state:[18] Mr Henderson refers to a wish to discuss the records of examination with the examinees. I do not grant permission to that course. The examinees gave their examination evidence pursuant to s165 of the Act and the Assignee has not used the record of those particular examinations in the context of the public examination. What Mr Henderson is free to do is to ask them for any relevant evidence on any particular matter but without specifically referencing the enquiry to things said or done in the examination.[19] Mr Henderson will appreciate that the Court's concern to protect theinterests of examinees is heightened by the nature of an email which apparently was sent by Mr Rodney Hide to an examinee after Mr Hide somehow came into possession of a particular record. The context of Mr Hide's email to that particular examinee could reasonably cause concerns to an examinee as to whether the protections intended by s169 of the Act had been respected. Therefore nothing in the amended permission I have granted above extends to allowing Mr Henderson to reference the record of examination when speaking to any examinee.[5] That application is opposed by the respondent, the Ministry of Business, Innovation and Employment (the Respondent). There was no opposition filed, nor any appearance before me on hearing this application, by the named judgment creditors in this proceeding, CIV-2010-409-000559, Havenleigh Global Services Limited and F M Custodians Limited nor, given that the applicant is an undischarged bankrupt, by the Official Assignee.Review of Associate Judge's decision[6] As I have noted at [2] above, the application before me is one brought pursuant to s 26P Judicature Act to review decisions of Associate Judge Osborne. Section 26P Judicature Act 1908 relevantly states:26P Review of, or appeals against, decisions of Associate Judges(1) Any party to any proceedings who is affected by any order or decision made by an Associate Judge in chambers may apply to the court to review that order or decision and, where a party so applies in accordance with the High Court Rules, the court—(a) must review the order or decision in accordance with the High Court Rules; and(b) may make such order as may be just.[7] And as to review of an Associate Judge's decision, r 2.3 High Court Rulesprovides:2.3 Review of decision(1) An application for a review, under section 26P(1) of the Act, of an order or a decision made by an Associate Judge must be by interlocutory application, which must fully state the grounds of review and what exactly is challenged by the applicant.(2) Unless a Judge or an Associate Judge directs otherwise, notice of the application must be filed and served,—(a) if it is made by a party who was present or represented when the order was made or the decision was given, within 5 working days of the order being made or the decision being given; or(b) if it is made by a party who was not present or represented, within 5 working days after the receipt by that party of notice of the making of the order or the giving of the decision.(3) Unless a Judge or an Associate Judge directs otherwise, the application does not operate as—(a) a stay of the proceeding; or(b) a step in the proceeding.(4) If the order or decision being reviewed was made following a defended hearing and is supported by documented reasons,—(a) the review proceeds as a rehearing; and(b) the Judge may, if he or she thinks it is in the interests of justice, rehear the whole or part of the evidence or receive further evidence.(5) In all other cases,—(a) a review proceeds as a full rehearing; and(b) the Judge may give the order or decision the weight he or she thinks appropriate.[8] The approach to be taken on such a review is described in McGechan on Procedure at para HR2.3.02 as follows:HR2.3.02 Approach to review(1) Overview(a) If the Associate Judge's decision is a reasoned one, following a defended hearing (ie full argument from opposing parties), the approach is essentially appellate (r 2.3(4)): Perriam v Wilkes [2014] NZHC 2192 at [4]. Thestarting point is the Associate Judge's decision. Theapplicant has the burden of persuading the Court that the decision was wrong — that it rested on unsupportable findings of fact and/or applied wrong principles of law:Midland Metals Overseas Pte Ltd v Christchurch Press Co Ltd (2002) 16 PRNZ 107 (HC) at [13]. The Court will apply the approach in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, (2007) 18 PRNZ 768 (SC), which involves the Court making its own assessment as to whether the original decision is wrong: Burmeister vO'Brien [2008] 3 NZLR 842, (2009) 9 NZBLC 102,415 (HC) at [29].The Judge has the discretion to rehear all or part of the evidence and to hear further evidence (r 2.3(4)).(b) If the Associate Judge's decision involves exercising adiscretion, the appellant must show the Associate Judge acted on a wrong principle or failed to take into account some relevant matter or took into account some irrelevant matter. The Court will not repeat the weighing exercise unless the Associate Judge gave excessive weight to some factor or patently inadequate weight to another, as to be"plainly wrong": Alex Harvey Industries Ltd v CIR (2001) 15 PRNZ 361 (CA) at [12]–[15].[9] Before me there appeared to be no dispute between the parties that the matters dealt with by Associate Judge Osborne in paragraphs [18] and [19] of his Minute 2 were decisions made in Chambers and were therefore properly the subject of review here.Background facts[10] This matter has a slightly convoluted history. Some background is useful here.[11] The respondent is an undischarged bankrupt, having been adjudicated bankrupt on 29 November 2010.[12] A public examination pursuant to s 173 of the Insolvency Act 2006 relating tothe applicant's possible discharge from bankruptcy has been underway in this Courtfor some time. Examinations under s 165 of the Insolvency Act 2006 have been conducted in respect of a number of witnesses ("the private examinations") recorded and transcribed (the transcripts for which I now refer to as "the examination transcripts").[13] In the meantime, the respondent has commenced criminal proceedings against the applicant under the Insolvency Act 2006 alleging a breach of s 149 that the appellant entered into and carried on business whilst an undischarged bankrupt.[14] In connection with its disclosure obligations on those criminal proceedings in terms of the Criminal Disclosure Act 2008, on 30 October 2015 the respondent applied to this Court by way of a memorandum for:(a) permission, if required, to provide the applicant with a copy of the examination transcripts upon conditions the Court considered appropriate; and(b) directions as to whom the application should be served upon.[15] On 30 October 2015 Associate Judge Osborne in this Court issued a minute which stated:Pursuant to s 169(2) of the Insolvency Act 2006 the Court permits the Ministry of Business, Innovation and Employment to provide Mr Henderson with a copy of the reports of examination conducted under s 165 of the Actin relation to Mr Henderson's property, conduct or dealings, such provision permitted on condition that the provision is for the purpose only of the District Court proceedings against Mr Henderson in relation to offences under s 149 of the Act, with neither the Ministry nor Mr Henderson otherwise permitted to publish the report.(Emphasis added)[16] It is noted in passing that, notwithstanding what was said in his original application noted at [1] above, in his submissions on the application before me, the applicant confirmed he does not seek to review this Court's ruling of 30 October2015.[17] On 5 November 2015 the examination transcripts were disclosed to the applicant.[18] The respondent has said that it then became aware that very shortly thereafter on 6 November 2015 an associate of the applicant, a Mr Rodney Hide (Mr Hide), had emailed one of the examinees who I understand was to be a prosecution witness. The respondent contends the circumstances of that email contact suggest that Mr Hide had been provided a copy of the private examination transcript in question.[19] Then, on 10 November 2015 the respondent filed a memorandum in this Court regarding this issue.[20] After receiving this memorandum, Associate Judge Osborne issued a minute described as Minute 1 dated 17 November 2015. At paragraph [6] of this minute the Associate Judge expressly made no direction in response to the memorandum filed by the respondent.[21] It is noted and accepted that the applicant does not seek here to review any ruling made by the Court in that Minute 1 of 17 November 2015.[22] Minute 2 of Associate Judge Osborne issued also on the same day, 17 November 2015, arose it seems in the context of the s 173 public examination of the applicant and not the criminal proceedings.[23] On 26 November 2015 the Court issued two further minutes in relation to the public examination of the applicant, and one further minute in relation to the examination transcript.[24] On 1 December 2015 Associate Judge Osborne issued a further minute which, at paragraph [1] recorded:Mr Henderson has filed an interlocutory application for "recission" of anorder I made by minute dated 30 October 2015 (his application refers to a minute dated 17 November but I refrained in that minute from making further directions).[25] I repeat however that the applicant in his submissions before me, as I note at [16] above, confirmed that now he does not seek to review that 30 October 2015 decision.[26] The present application for review, as I have noted above, now relates solely to paragraphs [18] and [19] of Minute 2. These paragraphs are set out at [4] above.[27] As an initial matter here, at one point the respondent purported to oppose the present application on the basis that it contended the application had been filed out of time. This was disputed by the applicant. In my view it is not entirely clear whether or not this application technically may have been filed out of time but, even if it was, I am satisfied as a result no prejudice arises to the respondent and, in the interests of justice, leave is granted to any late filing of the application.Merits of the review[28] Section 26P(1)(b) Judicature Act 1908 provides that the High Court onreview "may make such order as may be just". And, given that the decision beingreviewed is a chambers decision without oral evidence, on review the High Court is not required to defer to the decision of the Associate Judge. If a High Court Judge thinks the Associate Judge was wrong, the reviewing Judge should say so forthrightly – Austin Nicholls & Co Inc v Stitchting Lodestar at [3] and [16].[29] At the outset, I need to say I am satisfied that certain aspects of the decisions, so far as they may be described as such, made by Associate Judge Osborne at paragraphs [18] and [19] of Minute 2 cannot stand. First, so far as preparation for and hearing of the criminal charge faced by the applicant is concerned, I am in no doubt that the applicant is able to discuss and question each of the examinees on the transcript of their examination evidence given pursuant to s 165 of the Insolvency Act 2006. Whilst it is clear that s 169 Insolvency Act 2006 makes it an offence for a person who, without the Court's permission given under that section, publishes a report of any s 165 examination or any matter arising in the course of that examination, here, discussion with or questioning of an examinee by the applicantrelating to the examination transcript, in my view, cannot be seen as "publishing a report" of that examination. On this see Re: Baird (A Bankrupt).1[30] And, in any event, Associate Judge Osborne in his own minute issued 30 October 2015 permitting the respondent to provide the applicant with a copy of the s 165 examination transcripts said specifically that:such provision [of the examination transcripts is] permitted on condition that the provision is for the purpose only of the District Court proceedings against Mr Henderson in relation to offences under s 149 of the Act, with neither the Ministry nor Mr Henderson otherwise permitted to publish the reports.[31] As I understand his argument, the use of the examination transcripts to assist in defending the s 149 criminal charges brought against him is precisely what Mr Henderson seeks to do here. Thus, a reasonable argument exists that there was no need for him to seek permission, nor for Associate Judge Osborne in fact to address that request. The directions of Associate Judge Osborne made on 30 October 2015 for conditional provision of the examination transcript the applicant confirms is not the subject of review here, it is not objected to, and these directions stand.[32] Although it is clear in terms of s 169 Insolvency Act 2006 that, absent a proper permission from the Court, "publishing" a report of the s 165 private examinations is prohibited and that will always remain the case, as I understand it, that is not what the applicant proposes to do here. In the face of the serious criminal charges laid against him in the District Court, the applicant must be able to properly discuss with and question the s 165 examinees on their particular examination transcripts for the purposes of considering and mounting a defence to the criminal charges he faces. Otherwise, as I see it, his fair trial rights might well be significantly fettered.[33] To that extent, I now order that paragraph [18] of the Associate Judge'sMinute 2 is revoked.1 Re: Baird (A Bankrupt) [1994] 2 NZLR 436 at 468.[34] So far as paragraph [19] of that Minute 2 is concerned, however, with the absence of the last sentence, this paragraph merely provides comment and is unobjectionable. But, in any event, the last sentence of paragraph [19] cannot stand given my conclusions noted above.[35] The last sentence of paragraph [19] of Minute 2 is therefore revoked. I order revocation accordingly, although the remaining portions of paragraph [19] being sentences 1 and 2 are to remain.[36] To this extent the application for review is granted.[37] The orders noted above at paragraphs [33] and [35] are confirmed.[38] As to costs, the plaintiff being self represented, there is to be no order for costs....................................................Gendall JSolicitors:Raymond Donnelly & Co, ChristchurchCopy to Applicant