Henderson v Slevin

[2015] NZHC 366

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-000045 [2015] NZHC 366

BETWEEN

DAVID IAN HENDERSON

Plaintiff

AND

GRANT SLEVIN First Defendant

AND

ATTORNEY-GENERAL Second Defendant

AND

ROBERT BRUCE WALKER Third Defendant

AND

RYAN EATHORNE Fourth Defendant

Hearing:

1 September 2014

Appearances:

D I Henderson (Plaintiff/Respondent) in person
S M Kinsler for First and Second Defendants (G Slevin and
Attorney-General)
T G H Smith for Third and Fourth Defendants

(R B Walker and R Eathorne)

Judgment:

5 March 2015

JUDGMENT OF ASSOCIATE JUDGE OSBORNE

as to strike out and security for costs

Introduction

[1]      A bankrupt’s computer was seized by police on a warrant issued under the Summary Proceedings Act 1957. The police had obtained the warrant on the basis of a complaint by the liquidator of a company associated with the bankrupt.   The liquidator told the police that the bankrupt was believed to have committed breaches of the Companies Act 1993.  An employee of the liquidator accompanied the police on their visit to seize a computer and related equipment (the computer).  The police,

having  seized  the  computer,  released  it  to  the  liquidator  and  his  employee  to

HENDERSON v SLEVIN [2015] NZHC 366 [5 March 2015]

undertake for the police an analysis of the documents and to prepare an inventory of the documents.   The liquidator produced a clone of the computer hard drive which he  provided  to  a  solicitor  in  the  Official Assignee’s  office  who  had  expressed concern that the bankrupt may have acted in breach of the Insolvency Act 2006 by being involved in business while bankrupt. The liquidator provided extracts to other people.  The liquidator made statements indicating a willingness to provide extracts to other people where their right to receive the documents was not obvious and issues of privacy arose.  The Official Assignee’s solicitor appears not to have been deputed by the Official Assignee specifically to obtain the clone under s 171 of the Act but he asserts he relied on that provision for his authority to obtain the records. The  solicitor  was  later  a  recipient  of  unsatisfactory  correspondence  within  the Official Assignee’s office about a pending proceeding – the correspondence appears to indicate willingness on the part of at least some to set out to embarrass the bankrupt and involve a District Court Registry in leaking the Court papers to others.

[2]      No  prosecution  resulted  from  the  police  seizure  of  the  computer.    The liquidator did not present the intended inventory.  The search warrants were later the subject of challenge in the District Court, but with Judge C P Somerville finding the validity of the warrants was irrelevant to his Honour’s inquiry.  The bankrupt tried, initially unsuccessfully, to get the complete records returned.1     Eventually he recovered at least some of the original material.

This proceeding

[3]      The bankrupt issues this proceeding against four persons, being:

(a)       Grant  Slevin,  a  solicitor  employed  by  the  Ministry  of  Economic

Development;

(b)      the     Attorney-General      for     the     Ministry      of     Economic

Development/Official Assignee (now Ministry of Business Innovation and Enterprise);

1      Riach…