King v Harrison

[2022] NZHC 2184

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-000824

[2022] NZHC 2184

UNDER

The Insolvency (Cross-border) Act 2006, Privacy Act 2020, Trans-Tasman

Proceedings Act 2010, Trans-Tasman Proceedings (Specified Australian Insolvency Judgments Excluded from

Recognition or Enforcement in New Zealand and Excluded Matter) Order 2013 and Defamation Act 1992

BETWEEN

JEREMY DAVID ALLEN KING
Appellant

AND

BRETT RICHARD GEOFFREY HARRISON

Respondent

Hearing:

30 August 2022

Appearances:

Appellant in person

PJ Bedogni for Respondent

Judgment:

2 September 2022

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 2 September 2022 at 11 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Martelli McKegg, Auckland. Copy to Appellant.

KING v HARRISON [2022] NZHC 2184 [2 September 2022]

The case

[1]                   Jeremy King was adjudicated bankrupt in Australia. Brett Harrison was appointed his bankruptcy trustee. Mr King has  repeatedly  sued  Mr  Harrison.  Judge D J Clark dismissed one of Mr King’s suits.1 Mr King appeals. This judgment addresses his appeal.

Background

[2]                   On  13  July  2016,  Mr  King   was   adjudicated   bankrupt   by   the   Federal Circuit Court of Australia. On 20 January 2017, Mr Harrison was appointed Mr King’s bankruptcy trustee. Mr King has not cooperated with Mr Harrison. Rather, he has sued Mr Harrison, both here and in Australia.

[3]                   On 24 March 2021, Judge J C Hollister-Jones dismissed the first of Mr King’s New Zealand suits.2 Mr King sued Mr Harrison for defamation. Judge Hollister-Jones dismissed the suit as one like it had already been dismissed by an Australian Court.

[4]                   This brings me to the suit underlying the appeal. On 8 April 2021, Mr King filed a statement of claim against Mr Harrison alleging he had breached the Trans-Tasman Proceeding Order 2013. On 21 December 2021, Mr King filed an amended  statement  of  claim  alleging  Mr  Harrison  had  breached   the  Insolvency (Cross-border) Act 2006, Privacy Act 2020,  and  committed  bribery.  Mr Harrison  applied  to  strike  out   the   claim   and   for   summary   judgment.3  On 12 May 2022, Judge Clark granted Mr Harrison’s applications and dismissed   Mr King’s claim.4

[5]                   All causes of action are based on events between March 2018 and May 2020. In this period, Mr Harrison contacted New Zealand entities, asking if Mr King had assets here.5 Mr Harrison referred to the fact Mr King had been made bankrupt in Australia. Mr King alleges one or more of the entities gave information to

1      King v Harrison [2022] NZDC 7471.

2      King v Harrison [2021] NZDC 5654.

3      And in the alternative, for security for costs.

4      King v Harrison, above n 1.

5      Mr Harrison accepts he contacted ASB Bank Ltd and Nationwide Investments Ltd.

Mr Harrison.6 Mr King also alleges Mr Harrison’s disclosure of his bankruptcy caused him harm:

The breaches by the Defendant/Trustee has prevented myself from:

a.     Opening and operating of a standard New Zealand bank account, and in difficulty receiving my NZ pension.

b.     Not being able to obtain finance.

c.     Bank internet transactions being blocked, not being able to purchase on- line or to pay accounts on-line.

d.     Not to be able to operate a business.

e.     Not to be able to continue on with his profession, a Registered Property Valuer and with a Real Estate Managers Licence.

[6]Mr King claims Mr Harrison is therefore liable for “Exemplary damages”.

Judge Clark’s decision

[7]The Judge concluded none of the causes of action could be sustained.

[8]                   The Judge held a breach of the Insolvency (Cross-border) Act could not give rise to a claim for breach of statutory duty. That Act sought to “simplify the process where foreign creditors, administrators and courts could have ease of access into New Zealand to deal with the affairs of persons who were bankrupted in their own jurisdictions”.7 It “did not intend … to provide an insolvent person with the means to issue proceedings if [its] provisions … were not followed”.8

[9]The Judge addressed the Privacy Act cause of action this way:9

Mr King claims information was disclosed which was in breach of the Privacy Act. As noted, he has failed to provide any evidence of this in the affidavits he has filed, but even if such information was provided it is not a breach of the ICBA but may be a breach of the Privacy Act. If a breach has occurred, it could presumably be dealt with by a complaint to the Privacy Commissioner. It would however be an issue as between those entities who may have wrongly

6      Mr Harrison denies this on oath and notes Mr King has not adduced any evidence to support his claim.

7      King v Harrison, above n 1, at [52].

8 At [53].

9 At [59].

disclosed the information and Mr  King,  but  it  is  not  an  issue  between Mr Harrison and Mr King. It is therefore not an issue in this proceeding.

[10]               The Judge did not specifically consider the bribery allegation. He presumably saw it as forming part of the other two causes of action.

Mr King’s argument

[11]               Mr King continues to represent himself. He focussed on the Insolvency (Cross-border) Act cause of action (and said little about the others). Mr King argued Mr Harrison’s request for information and its provision constituted assistance under that Act, without permission of the High Court.

[12]               Mr King also argued the Judge did not have jurisdiction to dismiss his claims because only the High Court has jurisdiction under the Insolvency (Cross-border) Act.

Analysis

[13]Mr King’s primary cause of action presupposes:

(a)Mr Harrison breached the Insolvency (Cross-border) Act.

(b)A breach of that Act gives rise to an enforceable private action, as a breach of statutory duty.

[14]               Mr King offered no argument about [13](b). Mr King assumed a breach of an enactment, without more, gives rise to (private) liability by the person who committed the breach. This is not the law. The only possible cause of action is a breach of statutory duty, which I discuss briefly below.

[15]               Whether an enactment gives rise to this cause of action “is a question of ascertaining the intention of the legislature”.10   Professor Todd and others elaborate:11

10     R v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58 at 159 per Lord Bridge.

11     Stephen Todd (ed) The Law of Torts in New Zealand (7th ed, Thomson Reuters, Wellington, 2016) at [8.2.02].

Each statute … must be approached individually, and the question asked whether it was Parliament’s intention that a civil right of action should be available for breach of it.

[16]The Insolvency (Cross-border) Act has two purposes. It seeks to:12

(a)Implement the Model Law on Cross-border Insolvency.13

(b)Provide a framework to facilitate insolvency proceedings when a person is subject to insolvency administration in one country and has assets or debts in another country; or when more than one insolvency administration has commenced in more than one country.

[17]               The second purpose is self-explanatory. The first requires a little elaboration. The Model Law reflects that adopted by the United Nations Commission on International Trade on 30 June 1997. The Model Law is largely procedural. It seeks to enhance cooperation between courts and other authorities in relation to cross-border insolvency; promote legal certainty (for trade and investment); create fair and efficient cross-border insolvencies; protect and maximise the value of a debtor’s assets; and facilitate the rescue of financially troubled businesses.

[18]               The Judge concluded [13](b) was not reasonably arguable. I agree. The short point is this. Nothing in or about the Insolvency (Cross-border) Act implies it was intended to create a duty enforceable by private action. Rather, and as Heath J observed in Leeds v Richards, the Act “is designed to facilitate efficient disposition of cases in which an insolvent debtor is subject to a collective insolvency process”.14

[19]               The Privacy Act cause of action was beset with difficulty too. Mr Harrison did not release any information about Mr King (other, perhaps, than by describing him as bankrupt; but it is not clear what privacy interest could attach to that). A breach of the Privacy Act requires a complaint to the Privacy Commissioner, then, if the complainant remains unsatisfied, proceedings in the Human Rights Review Tribunal.15

12     Insolvency (Cross-border) Act 2006, s 3.

13     The Model Law.

14     Leeds v Richards [2016] NZHC 2314 at [27].

15     Privacy Act 2020, ss 72 and 98.

The common law does not recognise a tort of disclosure of personal information, as distinct from public disclosure of private facts.16 The Judge was therefore right to dismiss this cause of action.

[20]               The bribery cause of action presupposes that by offering to reimburse one of the New Zealand entities for its reasonable costs in providing information about     Mr King’s assets, Mr Harrison committed some species of actionable fraud. The claim is not arguable; it discloses no cause of action known to law.

[21]               This leaves Mr King’s argument the Judge did not have jurisdiction to dismiss his  claims  because  only  the  High  Court  has  jurisdiction   under   the   Insolvency (Cross-border) Act. The argument is misconceived. Mr King filed a statement of claim in the District Court, with a cause of action based on the Act. That Court had jurisdiction to determine if a cause of action could be based on the Act, and to dismiss the suit if it could not. That is what happened.

Result

[22]The appeal is dismissed. Mr Harrison is awarded 2B scale costs.17

……………………………..

Downs J

16     Hosking v Runting [2005] 1 NZLR 1 (CA).

17     The respondent said he was in the Court’s hands in relation to costs, given Mr King is bankrupt and paying one award of costs by attachment order.