PURUCKER v HUEBLER [2021] NZHC 968

PURUCKER v HUEBLER [2021] NZHC 968 [4 May 2021]IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYI TE KŌTI MATUA O AOTEAROAWHAKATŪ ROHECIV-2018-442-58[2021] NZHC 968BETWEEN MARINA ALEXANDRA PURUCKERPlaintiffAND IRIS HUEBLERFirst DefendantIRIS HUEBLER andRAINER HUEBLERSecond DefendantsHearing: 23 April 2021Appearances: A Shaw for plaintiffA Bamford for first defendant and first-named second defendantG Downing for second-named second defendantJudgment: 4 May 2021JUDGMENT OF ASSOCIATE JUDGE JOHNSTON[1] By notice of interlocutory application dated 19 February 2021 the firstdefendant, Ms Iris Huebler, applies for a stay of this civil proceeding until such timeas criminal charges against her have been disposed of. Her application is opposed bythe plaintiff, Ms Marina Purucker. The matter was argued at the conclusion of theAssociate Judge's list on 23 April 2021.[2] The essential accusation made in both proceedings is that Ms Huebler stoleover $800,000 of Ms Purucker's money by means of numerous transactions between2010 and 2018. The same transactions and amounts of money are at issue in bothproceedings. In the civil proceeding, Ms Purucker seeks recovery of those amounts.In the criminal proceeding, the Crown has charged Ms Huebler with theft by a personin a special relationship. Mr Bamford says that Huebler's defences will be the samein the two proceedings — that the transactions were all legitimate.[3] Against that background, Ms Huebler applies " for an order staying theplaintiff's proceeding until after the trial of charges she faces in the District Court atNelson under CRI-2019-042-000749 as detailed in the attached Crown ChargeList ".[4] The pleaded grounds for the application are as follows:(a) It is likely to cause prejudice by requiring the defendant to discloseher evidence in this proceeding when;(i) She has a right to silence in criminal proceedings which is yetto be allocated a trial; and(ii) In the criminal proceedings she cannot be compelled to be awitness.(b) Allowing this proceeding to continue with the requirement that shedisclose, by way of briefs, her evidence and evidence of witnesses shemay call as part of her defence case, will breach the rights detailedabove and this Court has an obligation to protect those rights.(c) The prejudice to the plaintiff that would result from staying thisproceeding until after the completion of the trial in the criminalproceedings does not justify a process which would result in a breachof the rights detailed above.[5] At the heart of Mr Bamford's submission for Ms Huebler is the propositionthat there is a complete coincidence of facts involved in the two proceedings and thatthe core legal issues are also the same, albeit that they must be approached throughcivil and criminal lenses reflecting such things as the different standards of proofinvolved.[6] Having emphasised the parallels between the allegations in the civil proceedingand the charges in the criminal proceeding, and Ms Huebler's defence to both,Mr Bamford submitted that if the civil trial were allowed to precede the criminal, thatwould oblige Ms Huebler to reveal her defence and effectively require her to giveevidence and subject herself to cross-examination in order to defend the civilproceeding on the very issues which will be involved in the criminal proceeding. Hesubmitted that that would deny her her right to silence as now articulated in s 25 of theNew Zealand Bill of Rights Act 1990.[7] Finally, Mr Bamford informed the Court that the very strong probability is thatthe criminal proceeding will go ahead during the third quarter of this year — duringSeptember 2021. He concluded with that point in order to meet the plaintiff's concernsabout delay.[8] For the plaintiff, Mr Shaw submitted that the law presumes that a plaintiff inMs Purucker's position is entitled to prosecute her civil claim, and that it is for thedefendant to displace this presumption.[9] He submitted that mere reliance on the right to silence is never enough to doso, and that the defendant's pleaded grounds in her notice of application are effectivelylimited to her reliance on this right.[10] What the cases say is that the presumption will only be displaced where theCourt is satisfied that a refusal to grant a stay would give rise to a risk of a miscarriageof justice, and, although it is true that the defendants' notice of application puts theright to silence at the forefront of her argument, the issue is whether in the particularcircumstances of this case there is such a risk.[11] Mr Shaw suggested that Ms Huebler had made this application at the lastmoment, given that the proceeding was commenced in October 2018.[12] Mr Bamford did not respond to this point other than to make the observationthat the timing of the application was not indicative of the merits.[13] Whilst there is in this case — as is often the case — room for criticismconcerning delay, that should not be permitted to affect any substantive right thatMs Huebler may have to protect important rights going to fairness in the criminalproceeding.[14] Mr Shaw relied on Brewer J's judgment in Luo v Shiu.1 In that case, his Honouraccepted counsel's submission as to the principles involved:[14] This provision does not, however, prevent the Court from staying civilproceedings pending determination of concurrent criminal proceedings on1 Luo v Shiu [2019] NZHC 2620.other grounds. Mr Bigio sets out in convenient summary form the wellestablished principles governing an application for stay in thesecircumstances:15. In McMahon v Gould, Wootten J reviewed the existingauthorities in Australia and elsewhere (including JeffersonLtd v Bhetcha) and set out the following guidelines for theCourt on an application for stay:(a) There is a rebuttable presumption that a plaintiff isentitled to have his action tried in the ordinary courseof the procedure and business of the court. Theburden is on the defendant in a civil action to showthat it is just and convenient that the plaintiff'sordinary rights should be interfered with;(b) The court's task is one of "the balancing of justicebetween the parties", taking account of all relevantfactors. Each case must be judged on its own merits;(c) One factor to consider is the accused's "right ofsilence" and the reasons that right exists. Someconsequences of the right are not legitimate reasonsfor its existence and amount to mere tacticaladvantages which an accused may wish to availhimself of at a criminal trial. The court need not beconcerned to preserve such advantages. Rather, thefocus should be to avoid the causing of "unjustprejudice" through continuance of civil proceedings;(d) Further, the plaintiff is not debarred from pursuingtheir action merely because to do so would, or might,result in the defendant (if he wishes to defend theaction), having to disclose what his defence is likelyto be in the criminal proceeding;(e) The court should consider whether there is a real andnot merely notional danger of injustice in the criminalproceeding;(f) In this regard factors which may be relevant to thiscase include:(i) the proximity of the criminal hearing;(ii) the possibility of a miscarriage of justice e.g.by disclosure of a defence enabling thefabrication of evidence by prosecutionwitnesses, or interference with defencewitnesses;(iii) the burden on the defendant of preparing forboth sets of proceedings concurrently; and(iv) whether the defendant has already disclosedhis defence to the allegations.[15] Then, at paragraph 15 his Honour continued:[15] The problem for Ms Shiu, which Mr Bigio recognises, is that thecourts seldom grant a stay in circumstances such as these.[16] In the paragraphs that follow his Honour described the argument advanced onbehalf of the applicant there that it was time for a change of view, particularly bearingin mind s 25 of the New Zealand Bill of Rights Act. Brewer J rejected that contention:[46] It follows I do not accept Mr Bigio's submission that the Courts'approach to cases of this sort is outdated and incorrect because the impact ofNZBORA has not been fully considered. Ms Shiu has, as against herprosecutor, the rights compendiously called the right to silence. NZBORAaffirms, protects and promotes those rights. The Courts will be influenced bythe existence of the rights when a party to a civil case applies for a stay oradjournment because of a concurrent prosecution involving the samecircumstances. It is a factor to be taken into account in considering the balanceof justice between the parties, but it is not an overriding factor. NZBORA hasnot changed the way the right to silence is regarded so that, to use Mr Barker'swords, the rebuttable presumption against a stay is now a rebuttablepresumption in favour of a stay.[47] The fact that Mr Luo and Ms Yip are complainants in the prosecutiondoes not affect their right to have their claim proceed as expeditiously asreasonable. They are not the prosecutor, they are witnesses. They are notagents of the State whose actions can be subject to NZBORA. They areasserting personal claims for redress. The dicta in Commissioner of Police vWei that "[i]n a case where the prosecuting agency is, in effect, the same partyas the plaintiff in the civil proceeding, considerations of entitlement of a civilplaintiff to pursue his or her case without delay are obviously dilutedsubstantially" do not apply to them.[48] I will now turn to whether Ms Shiu has discharged her onus to showthat it is just and convenient that the plaintiffs' ordinary rights should beinterfered with.[49] I find the relevant factors (in no particular order or ranking) to be:(a) There is no date set for the criminal trial. At the earliest it willbe March 2020, but it could be much later. There is thepotential for considerable delay. A one-day hearing of theplaintiffs' applications could, right now, be scheduled forFebruary 2020.(b) On the other hand, Ms Shiu now seeks an adjournment onlyof the applications for summary judgment bearing directly onthe $500,000 sought to be recovered by Mr Luo. A partialadjournment could be granted so that the summary judgmenton the third cause of action and the application for interimorders would proceed without delay.(c) A partial adjournment would protect Ms Shiu's right to silenceon the charges on which she is being prosecuted.(d) There is no particular prejudice claimed by the plaintiffs ifthere is a partial adjournment. Their case is that $500,000 waspaid by Mr Luo through the exercise of deception in the beliefit was payable under joint venture obligations. Mr Luo wantsthe money back, but he does not claim financial hardship orpending loss of opportunity. The plaintiffs would, however,not be able to argue the fifth cause of action which is closelyrelated to the third cause of action.[17] Mr Shaw also referred me to ADT Securitas v Geange,2 Wells v Lewis3 andCommissioner of Police v Burgess.4[18] A plaintiff's right to have their action tried in civil proceedings should not beinterfered with. The onus of satisfying the Court that this right should be interferedwith lightly lies on the party seeking a stay.5[19] The issue here is whether, having regard to all of the circumstances, to allow acivil proceeding to go ahead prior to a related criminal proceeding will compromisethe defendant in the latter to the point of risking a miscarriage of justice or unfairness.[20] I am not satisfied that this is the case here, essentially for the reasons advancedby Mr Shaw:(a) Ms Huebler has already pleaded her defence in the civil proceeding;(b) Any evidence she gives in the civil proceeding in support of her pleadeddefence will be exculpatory; and(c) It is open to the Court to make an order prohibiting inspection of thefile in the civil proceeding prior to the conclusion of the criminalproceeding.[21] Moreover, there is an intensely practical reason why the order sought byMs Huebler is not necessary.[22] Enquiries of the Registry in Nelson indicate that a five-day fixture for a circuitproceeding is most unlikely to be available until next year — probably during the thirdquarter of 2022.62 ADT Securitas v Geange (1992) 6 PRNZ 100.3 Wells v Lewis (1990) 3 PRNZ 454 (HC).4 Commissioner of Police v Burgess [2011] 2 NZLR 703.5 See Luo v Shiu, above n 1, at [48].6 As it happens, unusually, there may be some time for civil trials available in September of thisyear, but given that the criminal proceeding is set down for September it seems almostinconceivable that the defendant could also be involved in a significant civil trial.[23] In those circumstances it will not be necessary for the key pre-trial steps —most particularly the exchange of evidence — to commence prior to the beginning ofthe second quarter of 2022.[24] Thus, quite apart from the view I have reached as to the merits of theapplication, it does not appear to me that any useful purpose would be served bymaking the order sought by Ms Huebler. The reality is that the civil proceeding canbe set down now so that the parties know that it will go to trial on a certain date, and,as the criminal proceeding is likely to be disposed of before the end of this year, theconcerns that the defendant raises will not eventuate.[25] Against that background, I dismiss the defendant's application and direct theRegistrar to set this civil proceeding down for trial not before 1 April 2022, allowingfive days.[26] I make the following pre-trial directions:(a) No later than 60 working days prior to trial, the plaintiff is to serve herbriefs of evidence, a proposed chronology and a proposed index for acommon bundle of documents;(b) No later than 40 working days prior to trial, the defendant is to serveher briefs of evidence and proposed amendments to the chronology anda list of additional documents for inclusion in the common bundle ofdocuments;(c) No later than 30 working days prior to trial the plaintiff is to serve anyreply briefs of evidence;(d) No later than 20 working days prior to trial the plaintiff is to file andserve a joint chronology (marked up as necessary to reflect anydifferences between the parties) and a common bundle of documents(indexed and paginated in the usual way);(e) No later than 10 working days prior to trial the plaintiff is to file asynopsis of her submissions;(f) No later than 5 working days prior to trial the defendants are to filesynopses of their submissions.[27] Costs are reserved. If counsel are unable to agree costs, as I would expect themto be able to do, they may file and serve memoranda in the usual way.Associate Judge JohnstonSolicitors:C & F Legal Ltd, Nelson for plaintiffBamford Law, Nelson for first defendant and first-named second defendantMcFadden McMeeken Phillips, Nelson for second-named second defendant