LAFFERTY (aka) HELLSBY-KNIGHT v OFFICIAL ASSIGNEE [2018] NZHC 1944

LAFFERTY (aka) HELLSBY-KNIGHT v OFFICIAL ASSIGNEE [2018] NZHC 1944 [1 August 2018]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECIV-2018-419-169[2018] NZHC 1944UNDER the Insolvency Act 1967IN THE MATTER of an appeal from the decisions of theOfficial AssigneeBETWEEN MIKE LAFFERTY also known asMICHAEL HELSBY KNIGHTAppellantAND OFFICIAL ASSIGNEE IN BANKRUPTCYOF THE PROPERTY OF MICHAELHELSBY KNIGHTRespondentHearing: 27 July 2018Appearances: Appellant in personG S Caro for the RespondentJudgment: 1 August 2018JUDGMENT OF GORDON JThis judgment was delivered by meon 1 August 2018 at 4 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: Ministry of Business, Innovation and Employment, AucklandCopy To: AppellantIntroduction[1] The appellant, Mr Lafferty, appeals under s 86 of the Insolvency Act 1967 (theAct) against two decisions of the Official Assignee refusing two separate applicationsby Mr Lafferty to enter or carry on business under s 62(1)(a) of the Act.1[2] Mr Lafferty, who was formerly known as Michael Knight or Michael Helsby-Knight, appeared on his own behalf. He says he has changed his name by deed poll.[3] For the purposes of this judgment, I shall refer to the appellant as Mr Lafferty.However, he is the same person as the Michael Knight or Michael Helsby-Knightnamed in judgments to which I shall shortly refer.[4] The Official Assignee opposes the appeal.Background[5] On 14 February 2001, Mr Lafferty was adjudicated bankrupt. He has remainedbankrupt ever since.[6] On 9 November 2007, Associate Judge Doogue dismissed Mr Lafferty'sapplication for an order discharging him from bankruptcy.2 The Judge concluded thatit was not in the public interest or the interests of commercial morality to grant theorder.3 He also stated that Mr Lafferty's conduct in the course of bankruptcy did notjustify the grant of the order.4 Many of the Judge's comments were prescient. I setout in some detail a number of paragraphs of his judgment. They include a history ofMr Lafferty's offending to that point:[9] Mr Malarao made extensive reference to the report that had beenfiled by the Official Assignee. The main issues that he brought out were thatMr Knight has an extensive criminal history of offending. He noted that MrKnight had been convicted as long ago as May 1985 of fraudulently using adocument to obtain a pecuniary advantage. Mr Knight has spent a considerableamount of his time in Australia. He has been bankrupted there twice. In 19901 As Mr Lafferty was adjudicated bankrupt on 14 February 2001, the Insolvency Act 1967 governshis applications, rather than the Insolvency Act 2006. See Insolvency Act 2006, s 444(2).2 Knight v Independent New Auckland Ltd HC Auckland B1256-IM00, 9 November 2007.3 At [30].4 At [30].he was convicted of managing a company when prohibited. He has beenbanned indefinitely in New South Wales from being involved in any business.Since his bankruptcy in New Zealand on 14 February 2001, he has beenbankrupted in Australia on a second occasion. He has continued offendingsince he was adjudicated bankrupt in New Zealand in 2001. In 2002 and 2004Mr Knight was sentenced for offences against the Fair Trading Act. Evensince he filed his application for a discharge in 2005, he has offended yetagain. In 2005 he was sentenced in the North Shore District Court on fourcharges of fraudulently using a document to obtain a pecuniary advantage. Onthat occasion he was sentenced to 18 months imprisonment. Then in 2005 hewas prosecuted for managing a company while bankrupt and pleaded guilty.[15] One particularly troubling aspect of this case is that Mr Knightcommitted fraud offences through carrying on a business even during the timewhen he has been bankrupt. As well, there is the troubling feature of the case,which I raised during discussion with counsel, that Mr Knight seems intent onreturning to the types of business where he has got into trouble in the past andwhich have resulted in loss being incurred by members of the public. Broadlyspeaking, those two types of business are sales promotions connected withtravel and timeshares and immigrant employment type businesses. If MrKnight had developed an employment history in a position where the Courtwas able to discount any risk to the public and was assured that Mr Knightintended to stay in that position, then the position might be different. But thatis not the case and the risk remains. The fact that Mr Knight seems unable tounderstand the Court's concerns in this area also discloses a troubling lack ofinsight.[16] It is necessary to note, I regret to say, that Mr Knight's "track record"is poor. It is symptomatic of a person who is indifferent to his obligations tobehave honestly. It fits the picture of someone who will use unscrupulousmeans to get what he wants. All of this, in my view, emerges from his recordof criminal offending, his conviction for taking part in the management of acompany while bankrupt and the various banning orders that have beenimposed upon him. His is the profile of a person who has been persistentlydishonest and who has no regard at all for the constraints of the insolvencylaws or indeed for commercial morality. His record shows that he has been athreat to the public generally and the commercial community, in particular.[17] I accept that Mr Knight says that he is a changed character. I hope heis right. The Court would not want to discourage him to make changes in hislife. However it is the experience of Courts, whether in their commercial orcriminal jurisdiction, that often the process of rehabilitation is notstraightforward. It is not common for persons entrenched in anti-social waysto make a sudden, clean and irreversible break with there past. It is not usualfor the path to rehabilitation to be followed unswervingly. Reliance onassurances that are intended to persuade the Court that the person before theCourt has had a change of heart can lead to disappointment. It would not befair to Mr Knight to categorically dismiss his claims to be a reformedcharacter. But it is fair to say that it will be by his actions in the long-term thathe will be judged. The Court cannot blind itself to his history, which hasextended over some 20 years, on no other ground than that he now told theCourt that in the last two years he has had a change of heart.[18] I am of course required to give weight to the penalising effect of acontinuation of what has already been a bankruptcy of considerable length.So far as restrictions on going into business are concerned, I think that theconcerns there can be mitigated by Mr Knight seeking the consent of theOfficial Assignee to taking part in some business, if the Official Assignee seesfit: s 62 Insolvency Act 1967. In making that judgment, no doubt the questionof risk to the public will be one of the matters that the Official Assignee willplace in the balance.[32] The Court is not without sympathy for Mr Knight. He is to becommended on the efforts that he has made to address what seems to havebeen a serious drug addiction. Of course, the longer he manages to stay out oftrouble, the more confidence the Court can have in his long-term prognosis.In my view, though, it is too early at this point to grant him a discharge. Itcannot be said with confidence that he is no longer a threat to the public or thecommercial community. The application is dismissed. I also order pursuantto s 110(1)(d) of the Act that Mr Knight is not to bring another application fordischarge for twelve months.[7] In January 2008, the Official Assignee approved Mr Lafferty's application foremployment as an assistant branch manager at Wealand International NZ Limited.When that job concluded, the Official Assignee refused consent for Mr Lafferty to bean assistant manager at Kiwi Professionals Limited. Mr Lafferty then proposedreturning to his previous position at Wealand International NZ Limited. The OfficialAssignee declined that application. Mr Lafferty then applied under s 86 of the Act toreverse that decision. He submitted that the Official Assignee had previously agreedto him working for the same firm in the same job, and there had been no materialchange of circumstances.[8] On 25 February 2009, Rodney Hansen J dismissed the appeal.5 The Judgerejected the submission made on behalf of Mr Lafferty that the Official Assignee hadto show a change of circumstances in order to justify his change of position.6 In anyevent, alongside other developments, the National Enforcement Unit had laid chargesagainst Mr Lafferty in the meantime.7 In that respect, the Official Assignee's decisionto refuse consent "was the only one reasonably open to him".85 Knight v Official Assignee [2009] NZAR 235 (HC).6 At [27].7 At [28].8 At [32].[9] In 2009, the Official Assignee again refused consent for Mr Lafferty toestablish a business selling certain New Zealand statutes, both in book and CD form.Mr Lafferty applied under s 86 of the Act to reverse that decision. The OfficialAssignee sought security for costs of $3,000, and Allan J determined that application.[10] Allan J first acknowledged that "the making of an order will inhibit, or indeedpreclude, Mr [Lafferty] from bringing his application".9 It was necessary, therefore,to consider whether Mr Lafferty's application appeared "sufficiently meritorious topermit the application to proceed without requiring him to provide security for therespondent's costs".10[11] Allan J noted that the application faced "significant obstacles".11 The Judgenoted Mr Lafferty's past history, making the Court hearing the application likely toshare the concern that Mr Lafferty was "inherently unsuitable for the type of businessproposed, in that it would bring him into contact with classes of person who were thevictims of earlier offending".12[12] At the time of the hearing before Allan J, further charges had recently been laidagainst Mr Lafferty. He faced one charge of managing a business while bankrupt, onecharge of failing to disclose property to the Official Assignee and one charge of takingpart in the management of a business while prohibited, by reason of his previousconvictions for dishonesty offences. I was told that Mr Lafferty entered a guilty pleaat the hearing in October 2009 to at least one of the charges. He received a suspendedsentence.[13] Returning to the judgment of Allan J, the Judge also noted the "limited scaleof material" supplied by Mr Lafferty in support of his application for the OfficialAssignee's consent.139 Knight v Official Assignee HC Auckland CIV-2000-404-434, 29 June 2009 at [15].10 At [16].11 At [24].12 At [25].13 At [27].[14] Allan J eventually granted the order for security for costs.14 The Judgecommented that Mr Lafferty's application enjoyed "little prospect of success".15[15] From July 2011 to June 2012, Mr Lafferty engaged in three further fraudulentschemes which resulted in a total loss to all the participants of $156,790. Thoseschemes are described in the judgment of the Court of Appeal in Helsby-Knight v R.16Briefly, they were as follows:(a) Mr Lafferty adopted a fictitious name and purchased a database thatcontained over 3,800 business names in the Auckland region. He thentargeted those businesses by email identifying himself as the NewZealand and Australian agent for a trade fair to be held in China. Hesaid he was putting together a trade delegation to attend the trade fair.He made various other false representations as to what he wouldprovide to delegates. He was not authorised by, or affiliated to, thattrade fair. A total of 45 individuals paid approximately $125 each as aregistration fee. In return, they received a package containing falseairline and accommodation vouchers, as well as false documentationrelating to the trade fair. The total sum defrauded by this scheme wassome $5,620.(b) Mr Lafferty represented that he acted for a fictitious Hong Kongregistered company that imported low cost iPads, iPhones and otherelectrical goods. A brochure was produced. Fifty per cent depositswere sought for the sale of such goods. Sixty-four members of thepublic paid a total of $129,027.(c) Mr Lafferty changed his name by deed poll to Foxconn Group plc. Heobtained a passport in that name and opened a bank account in the samename. He produced a brochure for low cost electrical goods available14 At [36].15 At [28].16 Helsby-Knight v R [2015] NZCA 315 at [15]-[32].for delivery in the Auckland area. Payments of $22,142 were obtainedby Mr Lafferty. The goods were never delivered.[16] Mr Lafferty initially faced 117 charges under the Crimes Act 1961 for theseschemes. Eventually, he accepted a sentence indication given in the Manukau DistrictCourt on 1 May 2015.17 There were a number of procedural difficulties from thatpoint, which it is unnecessary to traverse. Eventually, the Court of Appeal allowed MrLafferty's appeal against sentence in 2015, imposing a sentence of three years and onemonth's imprisonment.18[17] Mr Lafferty was released from prison in November 2015. He has no offendinghistory from that date.The decisions[18] As noted, this appeal relates to two decisions of the Official Assignee refusingconsent for Mr Lafferty to enter or carry on business under s 62(1)(a) of the Act.[19] Section 60(g) of the Act requires Mr Lafferty to notify the Official Assignee ofany change in his employment. He is not required to obtain the Official Assignee'sconsent unless the job involves participation in the management or control of abusiness. Section 62 of the Act then provides:62 Prohibition of bankrupt entering business(1) An undischarged bankrupt must not, without the consent of theAssignee or the Court either directly or indirectly,—(a) enter into, carry on, or take part in the management or controlof, any business:(b) be employed by a relative of the bankrupt or by any company,trust, trustee, or incorporated society, that is managed orcontrolled by a relative of the bankrupt.(2) Nothing in this section restricts section 151 of the Companies Act1993.17 R v Helsby-Knight DC Manukau CRI-2012-004-13672, 1 May 2015.18 Helsby-Knight v R, above n 16, at [59].[20] On 17 April 2018, Mr Lafferty applied to establish a business which consistedof knocking on doors asking if people wanted to sell their houses, and then sellingthose leads to real estate agents (the first application). He also said in the firstapplication that he wanted to knock on doors for lawnmowing quotes to sell to lawnmowing firms.[21] By letter dated 24 May 2018 (the first decision), the Official Assignee declinedthe application saying:The Official Assignee needs to keep the commercial public in mind whendeciding on applications and in this case the risk is too great due to yourhistory of offending.[22] Anthony Pullan, a deputy Assignee, and Hayley Whitford, a senior insolvencyofficer, both swore affidavits in these proceedings. Ms Whitford is the insolvencyofficer tasked with the administration of Mr Lafferty's bankruptcy. She reports to theOfficial Assignee and Mr Pullan who is her immediate manager. Annexed toMs Whitford's affidavit is a detailed internal memorandum from her to Mr Pullan inwhich she considered Mr Lafferty's application. In that memorandum, Ms Whitfordaccepted that Mr Lafferty had the skills and knowledge to carry out the role, and thathe required an income to meet his living expenses. But she noted that there wereconcerns for creditors and the public. Specifically, that the nature of the proposedbusiness was similar to roles that he had previously been involved in which resultedin numerous fraud complaints. She also noted that his name change did not allow areasonable person to associate his new name with his old name, and thereby make aninformed decision.[23] Mr Pullan recorded his comments at the end of the memorandum as follows:It is very important to the Official Assignee to keep the commercial public inmind when deciding on applications. In this case, the risk is too great due tothe bankrupt's extreme history of offending. Also another name change doesnot allow a reasonable person to associate Mike Lafferty with Michael Knightand therefore make an informed decision.The bankrupt has also not demonstrated that he is unable to work in paidemployment for an employer due to his health. The fact that the bankrupt isapplying to work self-employed suggests that he has some capacity to workfor an employer.[24] On 25 May 2018, Mr Lafferty applied to establish a business which consistedof buying bric-a-brac and assorted goods from garage sales and charity shops, and thenselling them on Trade Me (the second application).[25] By letter dated 6 June 2018 (the second decision), the Official Assigneedeclined the second application for the same reasons. The letter stated:The Official Assignee needs to keep the commercial public in mind whendeciding on applications and in this case the risk is too great due to yourhistory of offending.[26] In another internal memorandum, Mr Pullan and Ms Whitford expressed thesame concerns as outlined above at [22]-[23]. Ms Whitford also noted that Mr Laffertyhad been trading whilst bankrupt without consent despite being aware of hisemployment restrictions and that an application would need to be made to the courtfor his discharge.[27] For completeness, I add that Mr Lafferty made a third application dated 11 June2018 to be an Uber driver. That application was approved by the Official Assigneesubject to conditions.[28] Mr Lafferty has filed an affidavit stating that he has an issue with one of theconditions imposed by the Official Assignee.[29] However, that decision was not the subject of this appeal. At the hearing,Mr Lafferty agreed that the hearing before me related to the first and second decisions.Approach on appeal[30] In Glynbrook 2001 Ltd v Official Assignee, the Court of Appeal set out theapproach of the appellate Court under the Act:19[84] When considering the question of the standard of review under s 86of the Act, it is necessary to distinguish between the discretionary powers ofthe High Court under s 86 to confirm, reverse, or modify the OfficialAssignee's act or decision and to make such order as it thinks fit and the natureof the statutory provisions under which the Official Assignee acted or decided.This distinction is important because the standard of review by the High Court19 Glynbrook 2001 Ltd v Official Assignee [2012] NZCA 289.will depend on whether or not the Official Assignee was making a decisionthat is subject to a general right of appeal or exercising a discretionarystatutory power, which is subject to a more limited right of appeal.(Citations omitted)[31] The issue in each case under this approach is, therefore, whether the OfficialAssignee was exercising a discretionary statutory power or one which is subject to ageneral right of appeal.[32] Subsequent decisions of this Court have adopted that approach in relation to s226 of the Insolvency Act 2006 (the successor to s 86 of the Act).20[33] Other decisions have, however, followed the approach adopted prior to theCourt of Appeal decision in Glynbrook 2001 Ltd.21 That approach involves hearingall the material de novo, but being careful not to interfere with the Official Assignee'sdiscretion too easily.[34] In this case, the Official Assignee exercised the power under reg 34 of theInsolvency Regulations 1970:34 Assignee's discretion to grant or refuse leaveThe Assignee, having regard to the interests of the bankrupt, thecreditors, and the community, may in his discretion refuse leave orgrant leave either unconditionally or upon such conditions as he thinksfit.[35] Under this regulation, the Official Assignee had a discretionary power to allowMr Lafferty's application or decline it. The exercise of the power is expressly statedto be within the Official Assignee's "discretion".20 Henderson v Official Assignee [2015] NZHC 1341 at [59]; Gollan v Official Assignee [2012]NZHC 1869 at [15]; Erwood v Official Assignee [2015] NZHC 390 at [19].21 Haines House Removals Ltd v Jamieson [2013] NZHC 653 at [39]. See also Miah v OfficialAssignee [2013] NZHC 2726 at [68] and Murray v Official Assignee [2014] NZHC 1710 at [28]-[29].[36] The appeal therefore proceeds as an appeal against a decision made in theexercise of discretion. I will approach this appeal adopting the approach in Glynbrook2001 Ltd. As the Court explained in that case:22[87] This meant that, as the Supreme Court explained in Kacem vBashir, the criteria for a successful appeal were stricter: (1) error of law orprinciple; (2) taking account of irrelevant considerations; (3) failing to takeaccount of a relevant consideration; or (4) the decision was plainly wrong.Submissions[37] In his written submissions, Mr Lafferty says that the Official Assignee'sdecision to decline the applications was unfair and unreasonable. He claims that theOfficial Assignee is not acting in good faith for either the public or him as a bankrupt.[38] At the hearing, Mr Lafferty supplemented his written submissions with oralsubmissions applying the criteria in Glynbrook 2001 Ltd to both the first and seconddecisions.[39] Mr Lafferty submits there was an error of law as the Official Assignee hadbreached s 27 of the New Zealand Bill of Rights Act 1990 by failing to observe theprinciples of natural justice, in that the Official Assignee had not given him anopportunity to be heard on his applications. Phone messages he had left had not beenanswered.[40] Mr Lafferty also submits effectively that the Official Assignee had pre-determined the first and second applications. The Official Assignee was biased andprejudiced against him from the outset. This was demonstrated, Mr Lafferty says, bythe statement in Mr Pullan's affidavit that Mr Pullan did not consider that it wasappropriate for Mr Lafferty to be self-employed in any business.[41] Mr Lafferty next submitted that the Official Assignee had failed to take intoaccount relevant considerations, namely that he had served almost three years in prisonto pay for his past offending, and that he had been clean from drugs for seven yearsand was an active member of a Narcotics Anonymous programme.22 Glynbrook 2001 Ltd v Official Assignee, above n 19; citing Kacem v Bashir [2010] NZSC 112,[2011] 2 NZLR 1 at [32].[42] In his submissions and his affidavit, Mr Lafferty says that he had previouslybeen a long-standing drug addict. He attributes his offending to this addiction. Buthe still takes responsibility for his crimes. He says being in prison was a huge learningcurve for him, and he has not been in any trouble since his offending in 2012.[43] As to the first decision, Mr Lafferty says it was plainly wrong. His proposedbusiness was different from the businesses for which he had got into trouble.[44] Mr Lafferty submits that there is no risk to the public as he would not beproviding the service. He would simply knock on a person's door and ask if they wereconsidering selling their house in the next year. If so, he would tell them he could herecommend a local agent. If the owner declined, he would ask if they wanted a quotefor lawn mowing, pool cleaning, or moss/mould removal. Mr Lafferty says that theOfficial Assignee misunderstood his proposed business. He would not be takingmoney from the homeowner. He would be paid by the real estate agent or, for example,a lawnmowing service upon providing them with the lead resulting from ahomeowner's indication that they wished to sell or wished to have their lawns mown.[45] As to the second application, Mr Lafferty again submits there is no risk to thepublic as he would only be purchasing clothes at garage sales and then selling them atother markets or online with a mark-up. He says that the second decision wasunreasonable and failed to take into account a relevant consideration. Mr Laffertysays he could sell items on Trade Me as a hobby. He says he has set up a Trade Meaccount and done some trading and his rating is "first class" (he annexed Trade Mefeedback to his affidavit).[46] The Official Assignee, in short, submits that Mr Lafferty cannot satisfy thestandard required on appeal. He reiterates his prior concerns about Mr Lafferty'soffending history, and submits there is too much risk in allowing Mr Lafferty to carryon the proposed businesses.[47] In relation to the first decision, Mr Caro, appearing for the Official Assignee,submits that the risks associated with this proposal by Mr Lafferty are readily apparent,particularly for elderly homeowners. Mr Caro submits there is a risk that thehomeowner could be convinced to embark on a course of action that is not in thehomeowner's best interests. Mr Caro refers to the 2011-2012 offending where MrLafferty fraudulently took deposits and did not provide the goods or service. He saysthat despite Mr Lafferty's assertion that he will not be taking money fromhomeowners, there is a real risk that Mr Lafferty could sign up home owners for adirect debit or deposit for a service which would not be provided.[48] In terms of the second decision, Mr Caro submits that the way the proposedbusiness is described is so open-ended that it comes down to an application for consentto sell any goods via the internet. Mr Caro submits the risk is too high that Mr Laffertywould either not deliver the goods after receiving payment or make falserepresentations as to the quality and authenticity of the goods. The fraudulent schemehe operated in 2011 involved this type of activity.[49] As to Mr Lafferty's submissions/evidence regarding his Trade Me feedback,when one refers to the feedback form annexed to Mr Lafferty's affidavit, there are infact only three trades where Mr Lafferty was the seller, on 16, 17 and 24 May 2018.Further, in response to Mr Lafferty's submission/evidence that he would be closeddown by Trade Me if he traded in a way that was deceptive or dishonest, Mr Carosubmits it would be a simple matter for Mr Lafferty to start up again using anotheremail address.[50] Mr Caro says that the Official Assignee does recognise Mr Lafferty's interestsas part of the balancing exercise in considering applications such as these. On the onehand, there is need to ensure the bankrupt can earn income to support himself and hisfamily, and on the other, there is the need to protect the public where the bankruptpresents a commercial risk.[51] Finally, Mr Caro advises the Court that Mr Lafferty has separately applied foran order discharging him from bankruptcy. He says that the Official Assignee willoppose an unconditional discharge and is currently formulating the conditions thatwould be acceptable in order for Mr Lafferty to be discharged.Discussion[52] Mr Lafferty rightly points out that the purpose of orders under the Act is not topunish the bankrupt, but the protection of the community.23[53] I do not consider it can be said that the Official Assignee has made an error oflaw or principle, took into account irrelevant considerations, failed to take into accountrelevant considerations, or made a decision that was plainly wrong.[54] I do not accept that the Official Assignee breached Mr Lafferty's right tonatural justice by not giving him an opportunity to be heard on the first and secondapplications. The Insolvency Regulations 1970 contain the following regulation forapplications for leave to enter business:33 Applications for leaveEvery application to the Assignee by a bankrupt under section 62 ofthe Act for leave to enter or carry on or take part in the managementof a business shall be made in writing by the bankrupt or his solicitorand shall be verified by affidavit, and shall set out the reasons for theapplication, whether the business is a new business, what capital (ifany) it is intended that the bankrupt or any other person will put intothe business, and such other particulars as the Assignee may require.[55] The Official Assignee then considers the application in accordance with reg 34which is set out in [34] above.[56] A standard pre-prepared form is available for any applicant to complete.Mr Lafferty completed one of those forms for each of the first and second applications.An applicant completing the form is asked to answer 25 questions. The last questionis open-ended and gives the applicant the opportunity to provide whatever informationhe or she considers relevant. That question reads:25. The following information is also supplied in support of thisapplication (if applicable):23 Bryers v Official Assignee [2015] NZHC 384 at [70]; Re Kelly ex parte Structured Finance Ltd[2009] 2 NZLR 785 (HC) at [63].[57] Assuming s 27 of the New Zealand Bill of Rights Act 1990 applies,24 there hasbeen no breach. The Official Assignee, having received the application, consideredthe information supplied by Mr Lafferty. The Official Assignee was not required togive Mr Lafferty the opportunity to be heard further on his application.[58] In my view, this is not a case where, to use the words of Byles J in Cooper vWandsworth Board of Works:25 although there are no positive words in a statute requiring that the partyshall be heard, yet the justice of the common law will supply the omission ofthe legislature.[59] The question is whether the statutory arrangements which are in place togovern the procedure are a code which has been carefully and deliberately drafted soas to prescribe a procedure which is fair and appropriate.26[60] In Wiseman v Borneman, Lord Reid said:27 For a long time the courts have, without objection from Parliament,supplemented procedure laid down in legislation where they have found thatto be necessary for this purpose. But before this unusual kind of power isexercised it must be clear that the statutory procedure is insufficient to achievejustice and that to require additional steps would not frustrate the apparentpurpose of the legislation.[61] In my view, it cannot be said that the statutory procedure is insufficient toachieve justice. The legislation enables an applicant to place whatever information heor she considers relevant before the Official Assignee. To require additional steps byway of a hearing should not be read into the procedure.[62] I also do not accept Mr Lafferty's submission that the Official Assignee hadpre-determined Mr Lafferty's two applications. The answer to that submission can beseen in the fact that the Official Assignee granted Mr Lafferty's third application.24 Bill of Rights Act 1990, s 3.25 Cooper v Wandsworth Board of Works (1863) 14 CBNS 180 at 194, 143 ER 414 (Comm Pleas) at420.26 Furnell v Whangarei High Schools Board [1973] AC 660 at 679, [1973] 2 NZLR 705 (PC) at 717per Lord Morris.27 Wiseman v Borneman [1971] AC 297 (HL) at 308. See also the cases discussed in Bryers v OfficialAssignee [2014] NZHC 2920, [2015] 2 NZLR 273 at [27]-[38].[63] Mr Lafferty's reference to a statement in Mr Pullan's affidavit (at [40] above)was incomplete. What Mr Pullan in fact said was:I do not currently consider that it is appropriate for the bankrupt to be self-employed in any business involving selling directly to the public when thebankrupt is able to make representations as to the quality and authenticity ofthe products or services on offer. I assess the risk to the public as being toohigh.[64] As can be seen, Mr Pullan qualified the kind of business which he consideredwas unsuitable. It was not 'any business' as Mr Lafferty represented in hissubmissions.[65] As to Mr Lafferty's submission that the Official Assignee had failed to takeinto account the fact that he had served almost three years in prison and had been cleanfrom drugs for seven years, again I do not consider that Mr Lafferty has demonstratedan error in this regard. He was released from prison in November 2015. That is aperiod of only just over two and a half years. Although there is no evidence ofMr Lafferty having reoffended in that time, I consider the Official Assignee wasentitled to take the view that this is too short a period for Mr Lafferty to demonstratehe is a changed man.[66] One only needs to refer back to the circumstances before Associate JudgeDoogue in October 2007. At that hearing, it was said on behalf of Mr Lafferty that:28[10] [His] story was a "story of redemption". [Counsel] placedconsiderable emphasis on the fact that Mr Knight had changed his life. Hesaid that Mr Knight was "reformed".[67] Notwithstanding those assurances, Mr Lafferty went on to offend again. Ofparticular concern is the offending from mid-2011 to mid-2012. That was just overthree and a half years after the assurances given to Associate Judge Doogue in October2007. Against that background and taking into account Mr Lafferty's history ofoffending, it cannot be said that the Official Assignee was wrong in his assessmentthat two and a half years was too short a period for Mr Lafferty to have demonstratedthat he had changed his ways.28 Knight v Independent New Auckland Ltd, above n 2.[68] I do not accept Mr Lafferty's submission that the nature of the businessesproposed in the two applications is sufficiently different from his earlier offending andthat accordingly the Official Assignee's two decisions were plainly wrong.[69] As to the first decision, despite Mr Lafferty's assurance that he would not betaking money from the homeowners, I consider it was open to the Official Assignee toconsider, against the background of Mr Lafferty's prior offending, that there was a riskto the public, namely that he might take money and then not provide the service.[70] As to the second decision, it cannot be said that the Official Assignee waswrong in considering the risk was too high, namely that Mr Lafferty would either notdeliver the goods after receiving payment or make false representations as to thequality and authenticity of the goods. Despite Mr Lafferty's submission that this wasdifferent from his earlier fraudulent schemes, on being questioned by the Court heaccepted that there was a common factor in that he was proposing to offer goods toconsumers for payment to him.[71] As noted above, Associate Judge Doogue said that Mr Lafferty's actions in thelong term would be how his actions will be judged and the longer Mr Lafferty stayedout of trouble, the more confidence the Court could have in his long-term prognosis.29[72] In my view, those comments are still applicable, especially given Mr Lafferty'sreversion to his pattern of offending after giving the assurances that I have noted toAssociate Judge Doogue. As things stand, Mr Lafferty has been out of prison for lessthan three years.Conclusion[73] The appeal is dismissed.Costs[74] My preliminary view is that the Official Assignee, as the successful party, isentitled to costs. I encourage the parties to agree costs and file a joint memorandum.29 Knight v Independent New Auckland Ltd, above n 2, at [32].My present view is that 2B is the appropriate categorisation. Any agreedmemorandum is to be filed within 15 working days of the date of this judgment. Inthe event that there is no agreement, the Official Assignee may file a memorandumwithin 10 working days after the date for the agreed memorandum and Mr Lafferty 10working days thereafter. Memoranda should not exceed five pages.___________________________________Gordon J