New Zealand National Party v Payne

[2013] NZHC 368

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2009-476-000571 [2013] NZHC 368

UNDER  the Insolvency Act 2006

IN THE MATTER OF     the bankruptcy of ROGER JOHN PAYNE BETWEEN  ROGER JOHN PAYNE

Bankrupt

ANDNEW ZEALAND NATIONAL PARTY Petitioning Creditor

AND  OFFICIAL ASSIGNEE

Hearing:         22 February 2013

(Via telephone conference)

Counsel:         R J Payne for Self

D R Forman for Petitioning Creditor
R Fildes for Official Assignee

Judgment:      28 February 2013

RESERVED JUDGMENT OF FOGARTY J

[1]      On 19 September 2012, Mr Payne was adjudicated bankrupt by Associate

Judge Matthews, sitting in the High Court in Timaru.

[2]      On 1 November 2012, I dealt with an application by Mr Payne to stay by way of injunction the sealing and publication of the order of adjudication.  I directed that the application by Mr Payne was to be treated as an application to recall the order of bankruptcy.  I also directed that the order not be sealed until the application had been

decided.

NEW ZEALAND NATIONAL PARTY V PAYNE HC TIM CIV-2009-476-000571 [28 February 2013]

[3]      This application for injunction (interpreted as recall) came before Associate

Judge Matthews on 13 December 2012.   He issued a judgment on 17 December

2012, in which he found that as a matter of law adjudication and bankruptcy cannot be reviewed or recalled.

[4]      On the next day, 18 December 2012, I issued a brief judgment, noting that there was no longer any reason to prevent sealing of the adjudication order.

[5]      On the same day, Mr Forman filed in the High Court in Timaru an order of adjudication for sealing, and it was sealed on 19 December 2012.

[6]      On 19 December 2012, Mr Payne sent an email, making another application in these proceedings, entitled:

URGENT APPLICATION  FOR AN URGENT INJUNCTION TO STOP THE SEALING AND PUBLICATION OF ASSOCIATE JUDGE MATTHEWS FATALLY FLAWED BANKRUPTCY DECISION ON MY CASE RECALL APPLICATION OF 21 SEPTEMBER 2012, DATED 17

DECEMBER 2012, RECEIVED LATE 18 DECEMBER 2012, UNTIL A PROPER  FAIR  AND  JUST  REHEARING  OF  THE  CASE  CAN  BE

CONDUCTED TO PREVENT A GROSS MISCARRIAGE OF JUSTICE.

[7]      On  receipt  of  this  application,  I  issued  a  minute  on  12  February  2013 recording that in this application of 19 December 2012, Mr Payne argues that the Judge got the law wrong, relied on cases decided under the Insolvency Act 1967, which do not apply under the Insolvency Act 2006.  I recorded that I had released the prohibition against sealing on 18 December 2012, and presumed the adjudication had now been sealed.  I then went on:

[1]     This litigation has had a very long history.

[2]     This Court has an inherent jurisdiction to stop its processes being abused.  There is a significant argument that this later application is such an abuse.   At any point in time, this Court across the country has numerous litigants seeking hearings and precious Court time.  If the judgment creditor does not make an application to strike out this proceeding as an abuse of justice, I am considering the Court taking the step on its own motion.

[3]     The Registrar is to convene a telephone conference at which I seek the attendance of Mr Payne and Mr Foreman, counsel for the judgment creditor. I would also seek attendance of the official assignee or her counsel.  In the meantime,  the  latest  application  dated  19  December  2012  is  not  to  be

processed.   There is no order staying the effect of the adjudication of Mr

Payne bankrupt on 19 September 2012.

[8]      On Friday 22 February 2013, I have heard argument as to whether or not this latest application of 19 December 2012 is capable of being heard by the High Court. Or, whether the Courts’ powers to adjudicate on these matters are now at an end (the Court is functus officio).

[9]      In support of the argument for today, these were submissions he sent on 20

February 2013.   Mr Payne disputed abusing the Court process in this case.   He framed the case as a public interest case, exposing:

(a)       anti-democratic candidate selection fixing in National Canterbury, and

(b)      excessive opposing lawyers’ fees.

[10]     He relied on the principle that fraud unravels all.  He expressed it by citing from an earlier decision of mine, stating:

No judgment can stand when there is any proof of deceit involved in its production at a later date.

[11]     The deceit he relies upon is the filing by Mr Forman of submissions in support of the bankruptcy to the Court before Associate Judge Matthews hearing of the application on 19 September 2012.

[12]     Mr Forman’s position is that there was no timetabling for filing submissions. He had filed submissions shortly before the hearing, but knew that if he posted the submissions to Mr Payne, Mr Payne would not receive them prior to the hearing. Accordingly, Mr Forman brought a copy of his submissions for Mr Payne, and handed them to Mr Payne at the commencement of the hearing.  Mr Forman said that Mr Payne did not object to that procedure at the time of the hearing, and in the course of the hearing, Mr Payne heard Mr Forman give his submissions.  Mr Forman said he read his submissions to the Court.

[13]     Mr Payne said that he and Mr Forman had been sitting in Court for about an hour, waiting for the case to be heard.   That Mr Forman had an opportunity to

handover to Mr Payne his copy of the submissions during that time, but had not done that.

[14]     Mr Payne disputed that he had had a fair hearing.  Rather, he regarded it as a deceitful process.

[15]     I have examined the file.  The adjudication of bankruptcy on 19 September followed a hearing on 18 September.  There is a document of Mr Forman’s, dated 18

September, which is to be found on the file.  It is the solicitor’s certificate for credit that the debt remains unpaid.  The document on the file is not the original, but is a copy, emailed on 4 December.  It is a standard document, handed in on the day, to assure the Court that as at that date the debt remains unpaid.  It says simply:

I, David Robert Forman, solicitor for the creditor certify that:

1.    On Tuesday the 18th day of September 2012, I made due enquiries as to the payment to the creditor by the debtor of the debt of $9356.69, set out in the summons to the debtor in this proceeding, on which the creditors application for adjudication is based.

2.    I am satisfied the said debt owing by the debtor to the creditor in this proceeding remains unpaid.

David Robert Forman

Solicitor for the creditor

Mr Forman may have been mistaken that it was a submission.  But I have assumed in

Mr Payne’s favour there was a submission.

[16]     I have read the judgment of Associate Judge Matthews of 19 September. Most of the judgment is dealing with arguments made by Mr Payne, which are rejected.  The judgment records Mr Forman advising the Court that the application for  adjournment  of  insolvency filed  on  23  November  2010,  the  application  for counterclaim in excess of alleged judgment debt filed on 23 November 2010, and the application for stay of the Insolvency Act filed on 23 November 2010 were all dismissed by the Court on 7 December 2010.

[17]     Mr Forman also is recorded as advising the Court that the creditors have never been served with a copy of an application for judicial review, said to have been

filed on 17 February 2011, and submitted that would be irrelevant as to whether or not debts are owing in accordance with the judgments of this Court. There may have been some written submissions by Mr Forman.   As I have recorded, he seems to acknowledge that there were some.

[18]     The judgment also records Mr Forman as submitting that the Court did not have any evidence from Mr Payne in relation to his application against his real estate agent, in any event, it is irrelevant.  Any other issues relating to the real estate agent claim were also irrelevant.

[19]     It does not seem to me that these submissions of Mr Forman are particularly significant, and they certainly were not decisive in the adjudication of bankruptcy, which is founded on the judgment debt, of which there can be no doubt.

[20]     I do not think that Mr Payne was put at any significant disadvantage by any written submissions of Mr Forman, if they were filed, because if they did go beyond these matters, they do not appear to have influenced the Judge at all.  In any event, it is for the Judge on the day to be satisfied as to the fairness of the hearing, not someone like myself dealing with an unorthodox attempt to get a bankruptcy either set aside or annulled.

[21]     This petition for bankruptcy has a very long history.   I first heard it on 49

October 2010, when I granted an adjournment, reluctantly, urging Mr Payne to pay the debt and so avoid bankruptcy.

[22]     I am now quite familiar with Mr Payne’s grievance that he has been badly

treated by the National Party.

[23]     Recently, Mr Payne has applied unsuccessfully to recall his bankruptcy made against him as a judgment debtor on 25 May 2005.  In the judgment of this Court, by Associate Judge Gendall, dated 8 February of this year, Associate Judge Gendall addresses the history of that bankruptcy, and in the course of it also addresses the judgment of Associate Judge Matthews on these proceedings on 17 December 2012.

[24]     That earlier adjudication arose out of matrimonial property proceedings and costs. That bankruptcy was resolved by annulment.

[25]     In the course of that judgment, at paragraph [27], Associate Judge Gendall said:

In the present case, it is not contested that the 25 May 2005 decision of this Court to adjudge Mr Payne bankrupt was sealed on 26 May 2005. Accordingly, I find that as that judgment was sealed and the Court was effectively functus officio at that time, there is no jurisdiction pursuant to rule 11.9 High Court Rules to recall that adjudication decision.

[26]     For these reasons, I am quite satisfied that this Court is functus officio.  That there is no basis for Mr Payne alleging that the judgment was obtained by deceit.  He has, at all times, been aware that the heart of the case for bankruptcy is that he has refused to pay the judgment debt obtained by the National Party against him.  That is the reason why he has been bankrupted.  The bankruptcy has had nothing to do with any failings by Mr Forman in giving him prior notice of the submissions he was going to make to the Court.  I am satisfied therefore the Court is functus officio.

[27]     The document sent on 19 December, referred to in paragraph [6], is not to be processed by the Registry and put in front of any Judge of the High Court.  It cannot be received and actioned, as it is entirely misconceived.

[28]     Costs are reserved.

Solicitors: