Mathiesen v Hodges - [2014] NZHC 2448

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV 2014-476-47 [2014] NZHC 2448

BETWEEN GABRIELLE PAULETTE MATHIESEN First Plaintiff

GORDON WALLACE CAMERON MCNAB, as one of the Trustees of the Sweet Pea Trust
Second Plaintiff

GORDON WALLACE CAMERON MCNAB, as one of the Trustees of the Sweet Pea Family Trust (the other Trustee being TREVOR DAVID HAY)
Third Plaintiff

GORDON WALLACE CAMERON McNAB, as one of the Trustees of the Greenpark Family Trust (the other Trustees appointed being TREVOR DAVID HAY and RONALD DUNCAN HERRON)
Fourth Plaintiff

I direct that the delivery time of this judgment is
3 pm on the 6th day of October 2014.

Solicitors: Crown Solicitor, Timaru
Crown Law Office, Wellington

Copies to: GP Mathiesen, First Plaintiff
G W C McNab, Second Plaintiff

MATHIESEN v HODGES [2014] NZHC 2448 [6 October 2014]

ANDALICE CLARE HODGES First Defendant

CRAIG ALAN O'CONNOR Second Defendant

JOHN MATTHEWS Third Defendant

ROB OSBORNE Fourth Defendant

ROBYN ANN COX, Official Assignee (South Island) and DEBORAH COLES Fifth Defendant

MANDY McDONALD Sixth Defendant

RUSSELL FILDES Seventh Defendant

DAVID MILLER Eighth Defendant

Hearing: 15 September 2014

Counsel:

G P Mathiesen, G W C McNab and T D Hay in person M A J Elliott for First and Third to Eighth Defendants A R McRae for Second Defendant

Judgment:

6 October 2014

RESERVED JUDGMENT OF MACKENZIE J

Introduction and result

[1] This proceeding purports to be “contempt proceedings”. In it, the plaintiffs allege that all of the defendants are in contempt of court for their actions in relation to the issue of a bankruptcy notice against Mrs Mathiesen, and in the subsequent proceedings in which an order was made adjudicating Mrs Mathiesen bankrupt.

[2] Contempt of court may be classified as either criminal contempt, or civil contempt. Criminal contempt consists of words or acts which impede or interfere with the administration of justice, or which create a substantial risk that the course of justice will be seriously impeded or prejudiced. Civil contempt consists of disobedience to the judgment, orders or other processes of the court, involving a private injury. The plaintiffs characterise the present claim as a civil contempt.

[3] The purpose of the law of contempt is to preserve an efficient and impartial system of justice and public confidence in it, by dealing with fundamental challenges to the supremacy of the law. In Solicitor-General v Radio Avon Ltd & Anor, Richmond P said:1

No one can question the extreme public importance of preserving an efficient and impartial system of justice in today's society which appears to be subject to growing dangers of direct action in its various forms. It is to that end, and to that end alone, that the law of contempt exists.

[4] The process used by the courts to deal with criminal contempt is a summary one, often initiated by the Judge. That form of process reflects the need for the courts to act quickly and effectively when their authority is challenged.2 The Solicitor-General may also institute proceedings for criminal…

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.

Continue reading Mathiesen v Hodges

Details

AGLC: Mathiesen v Hodges [2014] NZHC 2448
Case: [2014] NZHC 2448
Decision Date: 6 October 2014

CaseChat Overview and Summary

The proceeding was brought by Mrs Mathiesen and Mr McNab against several defendants, including court officers, seeking a declaration of contempt in relation to the adjudication of Mrs Mathiesen as bankrupt. The plaintiffs alleged that the adjudication was based on flawed documentation and process. The defendants denied the allegations and sought costs against the plaintiffs. The central issue was whether the proceeding was an appropriate means of challenging the adjudication of bankruptcy. The court held that the proceeding was misconceived as it was not an appropriate process for addressing issues about the adjudication order. The court observed that the adjudication order was valid and enforceable, and any issues about it should be addressed through the appropriate processes such as appeal or annulment. The court also held that the proceeding was an abuse of process and awarded costs against the plaintiffs.

Orders