Havenleigh Global Services Limited v Henderson - [2017] NZHC 33

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2010-409-000559 [2017] NZHC 33

IN THE MATTER the Insolvency Act 2006

AND

IN THE MATTER

of the bankruptcy of DAVID IAN HENDERSON

BETWEEN

HAVENLEIGH GLOBAL SERVICES LIMITED AND FM CUSTODIANS LIMITED

Judgment Creditors (Substituted
Creditors)

AND

DAVID IAN HENDERSON Judgment Debtor

Representation:
C J Lange for Ministry of Business, Innovation and

Employment
D I Henderson (Bankrupt) in Person

Judgment:

23 January 2017

(On the papers)

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
as to permission to publish examination transcript

The application

[1] This application concerns the transcripts of examinations which the Official

Assignee conducted under s 165 Insolvency Act 2006 (the Act).

HAVENLEIGH GLOBAL SERVICES LIMITED v HENDERSON [2017] NZHC 33 [23 January 2017]

[2] The Ministry of Business, Innovation and Employment (MBIE) applies for an order under s 169(1) of the Act for permission to provide Mr Henderson with a copy of the transcripts relating to the examinations of D Godden and G Angus upon such conditions as the Court considers appropriate.

[3] The application was served on Mr Henderson as the bankrupt in relation to whom the examinations occurred. Mr Henderson opposes the application.

The jurisdiction

[4] Section 169 of the Act provides:

169Report of examination must not be published unless court consents

(1) A person must not, without the court’s permission under subsection
(2), publish a report of—

(a) any examination of a person summoned by the Assignee; or

(b) any matter arising in the course of that examination.

(2) On the Assignee’s application, the court may permit publication of a
report under the conditions that the court imposes.

(3) A person who contravenes subsection (1) commits an offence and is liable on conviction to imprisonment for a term not exceeding 12 months or a fine not exceeding $5,000 or both.

[5] The background is that Mr Henderson is facing criminal charges in the

District Court. It is alleged that in breach of the provisions of the Insolvency Act

2006 he was involved in the management of certain companies.

[6] It is common ground that (in accordance with any legal requirements) the two transcripts in question should be provided to Mr Henderson pursuant to the provisions of the Criminal Disclosure Act 2008 (the CD Act). The most relevant provisions of the CD Act are contained in ss 13 and 16 of the Act.

[7] By s 13 of the CD Act, a prosecutor must make disclosure of “standard information” to the defendant. Section 13(3)(a) defines “standard information” to include “a copy of any statement made by a prosecution witness”.

[8] By s 16(1)(k) of the CD Act, a prosecutor may withhold information if the disclosure of the information would be contrary to the provisions of any other enactment.

The issues

[9] Mr Henderson opposes the application on four grounds: (a) the application is in incorrect form;
(b)the application is contrary to the provisions of ss 12 – 13 of the CD Act;

(c) the application has been made for improper…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NZHC 33
Decision Date: 23 January 2017

CaseChat Overview and Summary

Havenleigh Global Services Limited and FM Custodians Limited, as judgment creditors, applied to the High Court of New Zealand for an order allowing the Official Assignee to provide Mr David Ian Henderson, a bankrupt, with transcripts of examinations conducted under the Insolvency Act 2006. The Official Assignee, acting on behalf of the Ministry of Business, Innovation and Employment, applied for permission to provide the transcripts to Mr Henderson under certain conditions. Mr Henderson opposed the application, arguing that it was in incorrect form, contrary to the Criminal Disclosure Act 2008, made for an improper purpose, and that any conditions imposed would breach his fair trial rights.

The court considered the application, noting that the form of the application was not materially defective and that the application did not breach the Criminal Disclosure Act 2008. The court also found that the application was not made for an improper purpose, and that any conditions imposed would not breach Mr Henderson's fair trial rights. The court concluded that, regardless of whether the release of the transcripts required permission under the Insolvency Act 2006, the permission should be granted to ensure that Mr Henderson received the transcripts as required by law.

The court granted the application and ordered that the Official Assignee be permitted to release the transcripts to Mr Henderson without any conditions. This decision ensures that Mr Henderson receives the transcripts as required by law, and that the Official Assignee is protected from any allegations of "publishing" or "publication" under the Insolvency Act 2006.

Orders