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169Report  of  examination  must  not  be  published  unless  court consents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 purpose;

(d)      any fetters or conditions attaching to  an order made would  be in

breach of Mr Henderson’s fair trial rights.

Form of application

[10]     Mr Henderson submits that the application was made in an improper format and contains no affidavit evidence.  Mr Henderson did not cite any provision of the High Court Rules which would support this ground of opposition.

[11]     I am not satisfied that there has been any material breach of form. The application is in standard form.  An interlocutory application is not required to be supported by an affidavit.1   Even were Mr Henderson to have identified a particular defect  of  procedure,  the  Court  is  required  to  treat  such  as  an  irregularity,  not nullifying the step taken.2

Breach of ss 12 – 13 of the CD Act?

[12]     In his affidavit in opposition, Mr Henderson has stated:

1      Rule 7.20 High Court Rules refers to “any affidavit”, not to “an affidavit”.

2      High Court Rules, r 1.5(1).

To date the Assignee has not met her obligations in respect of the Criminal Disclosure Act and is indeed many months behind her statutory obligations in that respect.

[13]     Mr Henderson proceeds in his affidavit to develop legal argument as to his entitlement to receive the transcripts.   His affidavit evidence (strictly speaking, submissions) is to the effect that Parliament has already provided through the CD Act for release of the transcripts to Mr Henderson, without the need for permission under the Insolvency Act.   His submission is that the provisions of s 169 of the Insolvency Act 2006, as to the obtaining of the Court’s permission, are irrelevant because the release of  the transcript  to  Mr Henderson is  not  a “publishing” or “publication” in terms of s 169.  Consequently, Mr Henderson submits that, on an earlier occasion when I granted permission to the Assignee to release transcripts to Mr Henderson upon conditions, neither the granting of permission nor the imposition of conditions should have occurred.

[14]     For MBIE, Mr Lange explains that MBIE has made the application in order to avoid any allegation that, by releasing the transcripts to Mr Henderson, it has “published” them.  Significantly, for present purposes, the prosecution itself doubts that the prohibition of the “publication” under s 169 of the Insolvency Act was intended to preclude the prosecutor’s disclosure of such transcripts to a defendant under the CD Act.

[15]    Mr Lange has referred me to six decisions which generally support the conclusion that release of transcripts under s 13(3)(a) of the CD Act does not involve “publication”.3     In addition to those decisions, Mr Henderson has drawn to my

attention the judgment of the Court of Appeal in ASG v Hayne,4 a decision in which

the  Court  had  to  interpret  the  word  “publication”  as  used  in  s  200  Criminal

Procedure Act 2011.  Wild J, delivering the judgment of the Court, referred to cases cited by Mr Lange before concluding:5

3      See Re Baird (A Bankrupt) [1994] 2 NZLR 463 (HC); Ali v Deportation Review Tribunal HC Auckland HC98/96, 28 November 1996; Director-General of Social Welfare v Christchurch Press Co Ltd HC Christchurch, CP 31/98 29 May 1998; Re Victim X [2003] 3 NZLR 220 (HC) and (CA); Solicitor-General v Smith [2004] 2 NZLR 540 (HC); Slater v Police HC Auckland CRI-2010-404-379, 10 May 2011.

4      ASG v Hayne [2016] NZCA 203, [2016] 3 NZLR 289.

5 At [43].

… what emerges from the few relevant cases that “publication” refers to dissemination to the public at large rather than to persons with a genuine interest in conveying or receiving the information.

[16]     Having  reviewed  the  rulings  and  reasoning  in  those  various  decisions,  I strongly incline to the view that both Mr Lange and Mr Henderson are correct in their view that the release of the transcripts to Mr Henderson will not amount to publication in terms of s 169 of the Insolvency Act. That said, I have not heard competing argument on the issue.  For the reason which follows, it is unnecessary that I reach a final view on the matter and I do not do so.

[17]     It is appropriate  instead that the Court, upon the application made, considers as the order which should be made if the view of Mr Lange and Mr Henderson, and my own tentative conclusion, were wrong.

[18]     If the release of the transcripts to Mr Henderson required permission under s 169 of the Insolvency Act 2006, then this is clearly a case in which such permission should be granted.  I will be making an order to that effect.

[19]     Mr Henderson’s concern appears to lie primarily in the conditions which I attached to earlier permission.  The conditions would have precluded what might be said to amount to “onward publication”.  I accept Mr Henderson’s submission that such  conditions  are  not  appropriate.    I  agree  with  Mr  Henderson’s  submission wherein he records:

I could not proceed to “publish” a report of the examination that I have a transcript of.   If I did so, I would be breaching the Act and subject to its sanctions.

Improper purpose

[20]     In his affidavit, Mr Henderson refers to previous transcripts which he has received.   He deposes that the examinees were provided with an assurance by the Assignee that Mr Henderson would not be seeing any record of the particular interview.  Mr Henderson goes on to conclude:

It is clear to me that those representations were given improperly and that now the Assignee is using the High Court, quite improperly, as a means of “tidying up” the improper representations made to examinees.

[21]     Obviously, if Mr Henderson and Mr Lange are correct in their view as to the lack of need for permission under s 169 of the Act, any previous improper conduct on the part of the Assignee would be irrelevant.  I am satisfied that it equally cannot affect the permission which I will be ordering.  Regardless of the procedure adopted by the Assignee in obtaining a statement from a prosecution witness, the obligation on the prosecutor under the CD Act is to disclose such statement to the defendant. The protection provided by full disclosure requirement is that of the defendant.  Any impropriety on the part of the prosecutor or another does not affect the right of the defendant to full disclosure.

Fettering of fair trial rights

[22]     The conclusions I have reached above dispose of Mr Henderson’s concerns as

to any impact on his fair trial rights.

Orders

[23]     I order that, in the event the prosecutor requires the Court’s permission to release the records of examination of D Godden and G Angus to David Ian Henderson, such permission is hereby granted to the prosecutor, without condition.

Associate Judge Osborne

Solicitors:

Raymond Donnelly & Co, Christchurch

Copy to: D I Henderson, Christchurch