SIEMER v OFFICIAL ASSIGNEE [2013] NZHC 112

SIEMER v OFFICIAL ASSIGNEE [2013] NZHC 112

Leave to cross-examine was refused because the applicant did not meet the high Geary threshold: the affidavit material together with newly disclosed documents (meeting transcript and legal advice) provided sufficient information to permit fair resolution of the judicial review issues, the allegations of bias/fraud were speculative and vague, Duffy J had already refused leave and nothing material had changed, and any factual issues that become necessary can be addressed at the substantive hearing including by later direction for evidence if required.

Citation
[2013] NZHC 112
Parties
Applicant: V R Siemer; First Respondent: Official Assignee; Second Respondent: K Fardell as executrix of the estate of J R Fardell
Court
High Court
Jurisdiction
New Zealand
Judgment Date
8 February 2013
Procedural Posture
Judicial Review / Application for Leave to Cross Examine (interlocutory)
Outcome
Application for leave to cross-examine dismissed
Legal Topics
Assignment of Claims by Official Assignee, Natural Justice and Bias, Leave to Cross Examine in Judicial Review, Admissibility of Prior Judgments, NZ Bill of Rights Act S27
Insolvency Administrative Law Judicial Review Civil Procedure Evidence Assignment of Claims by Official Assignee Natural Justice and Bias Leave to Cross Examine in Judicial Review +2 more

Case Brief

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Parties

V R Siemer

Applicant

Official Assignee

First Respondent

K Fardell as executrix of the estate of J R Fardell

Second Respondent

Procedural Posture

Judicial Review / Application for Leave to Cross Examine (interlocutory)

Legal Issues

  1. 1 Whether leave to cross-examine the Official Assignee's witness should be granted under the Geary test
  2. 2 Whether the Official Assignee breached natural justice or s27 NZBORA in refusing to pursue or assign the claim
  3. 3 Whether the decision was tainted by bias, bad faith or reliance on irrelevant or inadmissible material

Ratio Decidendi

Leave to cross-examine was refused because the applicant did not meet the high Geary threshold: the affidavit material together with newly disclosed documents (meeting transcript and legal advice) provided sufficient information to permit fair resolution of the judicial review issues, the allegations of bias/fraud were speculative and vague, Duffy J had already refused leave and nothing material had changed, and any factual issues that become necessary can be addressed at the substantive hearing including by later direction for evidence if required.

Court Disposition

Application for leave to cross-examine dismissed

Orders

  • Application for leave to cross-examine Mr Viljoen dismissed
  • First respondent prima facie entitled to costs on the application