SISSON v COMMISSIONER OF INLAND REVENUE [2017] NZHC 148

SISSON v COMMISSIONER OF INLAND REVENUE [2017] NZHC 148 [13 February 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2016-409-000637[2017] NZHC 148BETWEEN THERESE ANNE SISSONPlaintiffAND COMMISSIONER OF INLANDREVENUEDefendantCIV-2015-409-000043BETWEEN COMMISSIONER OF INLANDREVENUEPlaintiffAND CHESTERFIELDS PRESCHOOLSLIMITED (IN LIQUIDATION)First DefendantTHERESE ANNE SISSONSecond DefendantCIV-2016-409-000040BETWEEN CHESTERFIELDS PRESCHOOLSLIMITEDPlaintiffAND THERESE ANN SISSONDefendantTHE COMMISSIONER OF INLANDREVENUEIntervenerCIV-2016-409-0000185BETWEEN THERESE ANNE SISSONApplicantAND THE OFFICIAL ASSIGNEE (REESTATE OF DAVID JOHN HAMPTON)First RespondentTHE COMMISSIONER OF INLANDREVENUESecond RespondentCIV-2016-409-000453BETWEEN THERESE ANNE SISSONApplicantAND IAG NEW ZEALAND LIMITEDRespondentHearing: 13 February 2017Counsel: T A Sisson Plaintiff/DefendantS Kinsler, P J Shamy and S L Russell for Commissioner ofInland RevenueB M Russell and K M Kendrick for Chesterfields PreschoolsLimited (In Liquidation)G Slevin for Official AssigneeM Mitchell for IAGJudgment: 13 February 2017ORAL JUDGMENT OF GENDALL J[1] At the commencement of the hearing of these proceedings Ms Sisson, the plaintiff/applicant in certain of these proceedings and defendant/respondent in others, made application to the Court for assistance by way of a McKenzie Friend in these matters. She sought that Mr Hampton assist her in this hearing but strictly as a McKenzie Friend. The application was opposed by the liquidator of Chesterfields Preschools Limited (In Liquidation), by the Commissioner of Inland Revenue, and by the Official Assignee. The application was not opposed on behalf of the defendant IAG New Zealand Limited in proceeding -453.[2] The basis of the opposition to the application, as I understand it, is that Mr Hampton is to be called as a witness at least in proceeding -185, but also it seemspossibly in proceeding end -040. As a result, it was said it would be inappropriate for him to be a McKenzie Friend to Ms Sisson in this matter, but this is particularly the case, it was said, because as a witness he was likely to be required to be excluded from Court prior to giving evidence in this matter.[3] In this regard I was referred to a decision R v Mitchell1 which confirmed that in cases where a proposed McKenzie Friend was to be called as a witness in a proceeding it was inappropriate for that person to be permitted to adopt that particular role.[4] Notwithstanding these matters, Ms Sisson before me responded that this is acomplex trial involving what she described as "a plethora of documents". She notedthat so far as the other parties in this proceeding is concerned, most had at least two, or in one case even three counsel, representing the interests of a particular litigant. As a self represented plaintiff and defendant in these proceedings Ms Sisson said that it was imperative that she have some assistance in this matter which could be provided by Mr Hampton who clearly had considerable background knowledge of matters which were to be before the Court.[5] This issue creates some difficulty, needless to say. Whilst in the normal course of events, as the decision in R v Mitchell confirms, it would be inappropriate for a potential witness to be a McKenzie Friend for a litigant in a proceeding, in this case, in my view, certain special circumstances do arise. These relate to the immense complexity of the documentation which has been filed in these various proceedings, whether that may be necessary or not, and the fact that through consolidation over the next three to five days, a range of different although related matters are before the Court.[6] In all the circumstances here and given the overall interests of justice I am satisfied that Ms Sisson should be assisted in this case by a McKenzie Friend and that it is in order for this to be Mr Hampton. I wish to make it clear that this is in no way to create a precedent as to similar matters, given particularly that Mr Hampton is likely to be called as a witness here. Issues have been raised by other counsel that1 R v Mitchell [1992] 9 CRNZ 537.Mr Hampton's credibility as a witness may be at issue, but it seems to me that is a matter which the Court can deal with if indeed it does arise. The greater interest in this case is that Ms Sisson is properly assisted as a self represented litigant in all matters which are before the Court. I rule therefore that Mr Hampton may act as a McKenzie Friend to Ms Sisson in this matter, but purely to be involved in a way to sit beside her, to take notes, to quietly make suggestions to her and to give advice, to propose questions and submissions to Ms Sisson who may put the same, and not in any way to address the Court by way of making submissions or himself asking questions. These are the permitted functions of a McKenzie Friend as set out by His Honour Hardie Boys J in Mihaka v Police.2...................................................Gendall JSolicitors:Lane Neave, ChristchurchPhillip Shamy, ChristchurchMeredith Connell, ChristchurchCopy to Ms Sisson2 Mihaka v Police [1981] 1 NZLR 54.