Commissioner of Inland Revenue v Lascelles

[2023] NZHC 3438

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2008-409-391

[2023] NZHC 3438

IN THE MATTER

of the Insolvency Act 2006

AND

IN THE MATTER

of the bankruptcy of RICHARD MICHAEL LASCELLES

BETWEEN

THE COMMISSIONER OF INLAND REVENUE

Plaintiff

AND

RICHARD MICHAEL LASCELLES

Defendant

CIV-2021-409-313

IN THE MATTER

of the Insolvency Act 2006

AND

IN THE MATTER

of the bankruptcy of RICHARD MICHAEL LASCELLES

BETWEEN

TOTAL ACCESS LIMITED

Plaintiff

AND

RICHARD MICHAEL IVAN LASCELLES

Defendant

Hearing:	(Determined on the papers)
Counsel:	S Kilgallon (in person) applicant for access G P Davis for R M Lascelles
Judgment:	29 November 2023

COMMISSIONER OF INLAND REVENUE v LASCELLES [2023] NZHC 3438 [29 November 2023]

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 29 November at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Background

[1]    Richard Lascelles has been twice bankrupted. First, on 20 October 2008 on the application of the Commissioner of Inland Revenue. Secondly, on 11 November 2021, on the application of Total Access Ltd. He has not been discharged from his second period of adjudication.

Application for access to court documents

[2]    Steve Kilgallon, a national correspondent employed by Stuff Ltd, applies for access to the court file in each of the proceedings. The application is made under r 11, Senior Courts (Access to Court Documents) Rules 2017. Mr Lascelles’ application complies with the requirements for such applications. He states that he wishes to look at the documents because Mr Lascelles has been bankrupt twice and has twice been criminally convicted for activities while running business. Stuff is considering a story about Mr Lascelles’ business activities. Mr Kilgallon suggests the reporting is journalism of high public interest, given the risks of the public engaging in businesses with a material link to Mr Lascelles. Mr Kilgallon records that obtaining the details of Mr Lascelles’ bankruptcies, beyond the detail in the Gazette notices, will inform full, fair and balanced reporting.

[3]    The request for access was duly referred to the parties to each of the proceedings. The Commissioner abides the Court’s decision. Total Access Ltd consents to the application.

[4]    Through Mr Davis, Mr Lascelles initially responded by memorandum setting out a number of grounds of opposition, which I summarise:

(a)Mr Lascelles, following his 2021 adjudication, had settled the debt of Total Access Ltd in full and intended to have the bankruptcy “annulled”;

(b)since bankruptcy he has not owned any business and has no continuing business activities;

(c)there is no public interest in the historical proceedings;

(d)information about his previous bankruptcy and his associated prosecution were well publicised at the time so that disclosure of further information is not necessary;

(e)the access sought — to the court files for both proceedings — is unjustifiably broad;

(f)disclosure would likely unfairly prejudice Mr Lascelles and possibly his wife because, for example, the present bankruptcy arose from a “mistake and accidental non-appearance at the hearing” and the debt was subsequently settled in full;

(g)Mr Lascelles suffers from health problems so that his personal wellbeing and his family’s interests outweigh any public interest in the documents;

(h)there is no public interest in the documents sought.

[5]    In light of the matters traversed in Mr Davis’s memorandum, I issued a Minute requiring further information from Mr Davis in relation to three particular matters:

(a)further information as to Mr Lascelles’ overall indebtedness at the time of his 2021 adjudication and why it has taken this long to apply for discharge from bankruptcy (it seeming to be clear that he would be ineligible for annulment);

(b)a further explanation of the suggestion that the 2021 adjudication resulted from a “mistake and accidental non-appearance”, given the Court record indicated a series of non-responses from Mr Lascelles; and

(c)further detail to support the allegations made by Mr Lascelles as to his current personal circumstances.

[6]    In the Minute I recorded that, on the information so far available, my tentative view was that Mr Kilgallon should be granted permission to access most of the documents on the court file.

[7]    I also recorded in the Minute that I would not be inclined to impose any condition on access that Mr Kilgallon include a statement in any publication of information obtained from the documents to the effect that Mr Lascelles had “inadvertently missed the hearing and subsequently paid the associate debt in full shortly thereafter”. Mr Davis had suggested, in the event access was to be granted, that there should be such a condition. He referred to this Court’s decision on a previous access application in Metalworks NZ Ltd v Hawthorndale Estate Ltd.1 I explained to the parties in my Minute that I viewed Hawthorndale as involving a different situation to the present, as the Hawthorndale proceeding had not resulted in a court order or adjudication, unlike this case where there have been adjudication orders which stand.

[8]    Mr Lascelles chose not to have Mr Davis provide a supplementary memorandum responding to my Minute, despite the direction in the Minute. Mr Davis stated in a brief email that Mr Lascelles was “content for the application to be determined on the material currently before the Court”.

Discussion

[9]    I am satisfied in this case that the principle of open justice strongly outweighs any of the matters invoked in opposition by Mr Davis.

[10]   Mr Lascelles remains an undischarged bankrupt following his 2021 adjudication. His failure over the extended period since he settled the Total Access Ltd debt to apply for, let alone obtain, a discharge from bankruptcy is unexplained and raises serious issues as to whether he is entitled to be discharged from bankruptcy.

[11]   The proposition that the 2021 adjudication resulted from a mistake and accidental non-appearance at the adjudication hearing is unsupported by any proper

1      Metalworks NZ Ltd v Hawthorndale Estate Ltd [2023] NZHC 1487.

detail and is in fact contradicted by the court record which identifies his failure to respond to the bankruptcy notice as well as the adjudication application.

[12]   Mr Lascelles has not provided any detail to establish that there are particular health or family circumstances that the Court should bring into account in considering the present application.

[13]I am satisfied that the application should be granted.

Method of access

[14]   Mr Kilgallon has noted that he is based in Auckland and would prefer to have electronic access to the documents on the two files.

[15]   As the two files in question were bankruptcy files, the documents on them are held in physical form and not electronically.

[16]   The permission granted to Mr Kilgallon will therefore be to access the files physically in the Christchurch Registry.

Order

[17]   Mr Kilgallon is permitted to access at the Christchurch Registry the following documents on the files in CIV-2008-409-391 and CIV-2021-409-313:

(a)bankruptcy notice;

(b)certificate of judgment;

(c)request for issue of bankruptcy notice;

(d)affidavit of service of bankruptcy notice;

(e)summons to debtor;

(f)application of creditor for order of adjudication;

(g)affidavit supporting creditor’s application;

(h)affidavit of service of creditor’s application;

(i)any appearances in support;

(j)any certificates of indebtedness;

(k)order of adjudication;

(l)any application for stay;

(m)any memoranda of counsel; and

(n)any Court Minutes.

Osborne J

Solicitors:

Shaun Cottrell Law, Christchurch

Counsel: G Davis, Barrister, Christchurch Copy to: S Kilgallon, Stuff Ltd