Fawcett v Crown Solicitor of Hamilton
[2014] NZHC 2713
•31 October 2014
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV 2014-419-000367 [2014] NZHC 2713
IN THE MATTER of the Judicature Act 1972 BETWEEN
CHRISTOPHER LOUIS FAWCETT Plaintiff
AND
THE CROWN SOLICITOR OF HAMILTON
First Defendant
THE OFFICIAL ASSIGNEE OF HAMILTON
Second Defendant
Hearing: 31 October 2014 Appearances:
Plaintiff in Person
T C Tran for the DefendantsJudgment:
31 October 2014
[ORAL] JUDGMENT OF WYLIE J
FAWCETT v THE CROWN SOLICITOR OF HAMILTON & ANOR [2014] NZHC 2713 [31 October 2014]
Introduction
[1] Mr Fawcett has filed an application for review. He seeks to challenge what he says is a decision made by Judge RLB Spear in a minute dated 25 July 2014. He says that Judge Spear directed that a certificate issued under s 438(2) of the Insolvency Act 2006 should not be disclosed to him. He also seeks orders that a forensic expert be allowed to inspect all electronic files and emails relevant to him and his bankruptcy to determine when various documents have been created and to see whether they have been altered or if anything has been deleted.
[2] As I understand it, Mr Fawcett thinks that the date on the certificate is not accurate and that the document was only created after charges had been laid against him. He suspects that the wording in the certificate which has been put before the District Court was changed after it was first issued. Indeed, he has suggested to me that there were three different versions of the certificate.
Background
[3] Mr Fawcett is an undischarged bankrupt. He was adjudicated bankrupt on
15 September 2010. In the ordinary course of events, Mr Fawcett would have been discharged from bankruptcy on 4 October 2013 – being three years after the date he filed his statement of affairs. However, on 4 September 2013, the Official Assignee advised Mr Fawcett that it would be opposing his discharge. The effect of that notice was to preclude what would otherwise have been an automatic discharge.
[4] On 23 September 2013, Mr Fawcett applied for an order for discharge. That application was heard by Peters J on 11 December 2013. In a reserved judgment issued on 7 May 2014,1 she declined Mr Fawcett’s application. She considered that there were serious issues raised as to the way in which Mr Fawcett had conducted himself following his adjudication, and in particular, whether or not he had complied with the obligations imposed by s 149 of the Insolvency Act which prohibits an undischarged bankrupt, without the consent of the Assignee or the Court, from directly or indirectly entering into, or carrying on, or taking part in, the management
or control of a business.
1 Re Fawcett [2014] NZHC 924.
[5] The Official Assignee considered that Mr Fawcett had breached s 149. As required by s 438(1) of the Act, it referred the case to the Crown Solicitor. The Crown Solicitor then certified under s 438(2) that there were reasonable grounds for prosecuting Mr Fawcett. As I understand it, that certification was contained in a letter dated 27 September 2013. The Official Assignee has issued proceedings against Mr Fawcett. Those proceedings are currently in the District Court at Hamilton. Mr Fawcett is seeking that they be dismissed, and his application in that regard is to be heard on 5 December 2014.
[6] The first defendant, the Crown Solicitor in Hamilton, and the second defendant, the Official Assignee in Hamilton, have applied to strike out the review proceedings in this Court.
Relevant Legal Principles
[7] There was no disagreement before me in relation to the relevant legal principles. Rule 15.1 of the High Court Rules gives the Court the power to strike out all or any part of a pleading if it:
(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b) is likely to cause prejudice or delay; or
(c) is frivolous or vexatious; or
(d) is otherwise an abuse of process of the court.
[8] The principles applicable to a strike out are well settled. The Court of Appeal in Attorney-General v Prince,2 detailed the relevant principles as follows:
(a) A strike out application proceeds on the assumption that the facts pleaded in the statement of claim are true, although the Court is not
2 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.
required to accept as true, facts which are entirely speculative or which beggar belief;
(b)The Court may strike out proceedings if the cause of action is so clearly untenable that it cannot possibly succeed;
(c) The jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied that it has the requisite materials before it; and
(d)The fact that applications to strike out raise difficult questions of law, and require extensive argument, does not exclude the jurisdiction.
[9] If a pleading is capable of success if it is amended, it will not generally be appropriate to strike it out.3
[10] These principles were endorsed by the Supreme Court in Couch v Attorney- General.4 They clearly apply to an application to strike out judicial review proceedings.5
Submissions
[11] Mr Fawcett appeared on his own behalf. He submitted that the crucial issue is whether or not there is a right to disclosure of the letter containing the s 438(2) certificate. He set out the background as he sees it, and explained that he is concerned with the timing and integrity of the s 438(2) certificate given to the Official Assignee. He asserted that Judge Spear took the view that once a memorandum had been filed, the Court was bound by s 24(2) of the Criminal Procedure Act 2011 to accept the memorandum as proof that the s 438(2) certificate was valid. Mr Fawcett told me that he asked Judge Spear for a copy of the letter to satisfy himself that the certificate was bona fide, and that there were
grounds to prosecute him. The Crown claimed legal privilege in relation to the
3 Marshall Futures Limited (in liq) v Marshall [1992] 1 NZLR 316 (HC) at 323–324.
4 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
5 Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR
53.
certificate. Mr Fawcett argued that his judicial review can succeed, because, in his view, the Crown has waived any privilege it might have had in the letter containing the certificate by relying on the certificate in the District Court, by using the certificate in deciding to bring the charges against him and by disclosing part of the letter. He argued that the Court must be able to review the Crown’s refusal to now disclose the certificate.
[12] Mr Tran, for the defendants, submitted that Mr Fawcett’s claim discloses no reasonable cause of action, that it is frivolous or vexatious, or that it is otherwise an abuse of the Court. He set out the relevant law, and argued that the statement of claim contains no reasonable cause of action against the defendants, and further, that it is based on speculative allegations. He argued that Judge Spear, in his minute, was simply addressing the issue of whether or not the Crown solicitor had provided a certificate under s 438(2) to the Official Assignee. He noted that the Crown had filed a memorandum with the Court confirming that the Crown solicitor had certified on
27 September 2013 that there were reasonable grounds for prosecuting both Mr Fawcett and another person. Mr Tran pointed out that Judge Spear did no more than accept that the memorandum filed by the Crown complied with s 24(2) of the Criminal Procedure Act, and that therefore he was bound to accept the memorandum as proof that consent to the prosecution under s 438(2) had been given. Further, he argued that the relief sought by Mr Fawcett is misconceived, because he is purporting to review a decision taken by Judge Spear in the District Court, rather than the actions of either defendant. He also argued that the relief sought in relation to the examination and reporting by an independent forensic expert is not available on an application for review.
Analysis
[13] In my view, Mr Fawcett’s judicial review proceedings are misconceived, and they do not disclose any reasonable cause of action against either the first or second defendant.
[14] I have read Judge Spear’s minute carefully. Judge Spear was not asked to order either the first defendant, or the second defendant, to disclose the certificate
issued under s 438(2) of the Insolvency Act. The Judge noted the purpose of the hearing before him. He recorded it as follows:
The hearing this afternoon was designed to address, in particular, a point as to whether the Crown Solicitor had provided a certificate under s 438(2) Insolvency Act 2006 to the Official Assignee that there were reasonable grounds for commencing the prosecution against Mr Fawcett and Mr Spackman…
[15] The Judge recorded that a Ms Foster for the Crown had filed a memorandum confirming that the Crown solicitor had issued the certificate under s 438(2) on
27 September 2013, and confirming that the certificate recorded the view that there were reasonable grounds for prosecuting both Mr Fawcett and the other person. He then referred to s 24(2) of the Criminal Procedure Act. It provides as follows:
24 Endorsement of consent
…
(2) The consent of the Attorney-General or other person may be set out in a memorandum and, if so, must be accepted by the court as proof that the consent has been given.
…
Judge Spear acknowledged that he was required to accept the memorandum as proof that consent to the prosecution under s 438(2) of the Insolvency Act had been given prior to the prosecution being commenced. He also recorded that Mr Fawcett accepted on the day that the memorandum filed by Ms Foster complied with s 24(2).
[16] The Judge did note an assertion made by Ms Foster that there was legal privilege in the certificate. The Judge recorded that he was not impressed with the Crown’s view. He noted that he had been shown the letter giving the necessary certification, and that, in his judgment, there was nothing in it that could possibly be harmful to the Crown’s case. Judge Spear observed that disclosure would have certainly gone some way to allay Mr Fawcett’s suspicions that there was something untoward in the conduct of the Crown in relation to the prosecution, but he took the view that it was not for him to determine whether privilege should be claimed in the context of the matters which were before him on that day.
[17] Nowhere in the minute is there any reference to Mr Fawcett making application for disclosure of the letter containing the certificate. Nor did Judge Spear decline any such application.
[18] It follows that Mr Fawcett’s claim to an order reviewing the decision made by Judge Spear in his minute not to order disclosure of the s 438(2) certificate to him must fail. The Judge did not decide not to order disclosure of the certificate. Other problems with the application for review, for example, the naming of the correct defendant, could be cured by amendment. The absence of a decision however cannot be overcome by Mr Fawcett amending his pleadings. It is trite that the purpose of judicial review is to correct jurisdictional errors made by decision makers generally acting pursuant to a statutory power. It is concerned with the legality of the impugned decision. When there is no decision, there is nothing to review.
[19] Further, and in any event, the orders sought that an independent forensic expert examine electronic files, and report back to the Court, cannot be obtained in the context of an application for review. Further, I note that Judge Spear was not asked to make such orders and he made no decision in relation to them. Again, Mr Fawcett cannot succeed in this regard on his application for review.
[20] In my judgment, the application for review discloses no tenable cause of action against either the first defendant or the second defendant. Mr Fawcett’s statement of claim is struck out.
[21] I observe that there would seem to me to be much simpler ways for Mr Fawcett to seek to obtain disclosure of the letter containing the certificate. The criminal proceedings are on foot. Pursuant to the Criminal Disclosure Act 2008, a defendant can apply at any time for an order for disclosure. While there are provisions in that Act permitting the Crown to decline disclosure in circumstances where privilege can properly be asserted, whether or not privilege can be maintained is a matter which can be determined by the District Court Judge in the context of any application made. If the Court is satisfied that the defendant is entitled to disclosure, then it can so order. There are appeal rights available under the Criminal Disclosure Act. In my view, and on the materials which are available to me, that is a much
better way for Mr Fawcett to proceed if he wishes to persist in his attempts to obtain disclosure of the s 438(2) certificate.
Costs
[22] Mr Tran applied for costs.
[23] I cannot see that a costs order is appropriate. First, Mr Fawcett is still an undischarged bankrupt. He confirmed to me that he has recently made a fresh application for discharge. That application is opposed by the Official Assignee. As long as Mr Fawcett remains an undischarged bankrupt, there is no prospect of him being able to meet any costs order which might be made. Secondly, it seems to me that, to an extent, the defendants have brought the application upon themselves. Judge Spear recorded that he was not impressed with the Crown’s refusal to release the letter. I have not seen the letter, but Judge Spear did see it. He said there was nothing in the letter that could possibly be harmful to the Crown case. Assuming that to be the case, I share Judge Spear’s concern that the attitude being taken by the Crown is unnecessarily obstructive.
[24] The application for costs is declined.
Wylie J
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