Official Assignee v Norris HC Nelson CIV-2011-442-000080

[2011] NZHC 831

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV-2011-442-000080

BETWEEN  THE OFFICIAL ASSIGNEE Plaintiff

AND  PATRICK DEAN NORRIS Defendant

Hearing:         27 July 2011

Counsel:         P C Murray for Plaintiff

Defendant appears In Person

Judgment:      3 August 2011

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1]       There are three applications before the Court.

Application by the defendant for discovery against the plaintiff and the Registrar of

Companies dated 13 June 2011

[2]       This application was not opposed by the plaintiff or by the Registrar of

Companies who was, for this purpose, represented also by Mr Murray.

[3]       By consent I order:

(a)     The  plaintiff  will  file  and  serve  an  affidavit  giving  discovery  of documents within 60 working days.

(b)The  Registrar  of Companies will  file  and  serve  an  affidavit  giving discovery of documents within 60 working days.

(c)     The  Registrar  of  Companies  will  bear  his  own  costs  of  giving discovery, even though a non-party.

THE OFFICIAL ASSIGNEE V PATRICK DEAN NORRIS HC NEL CIV-2011-442-000080 3 August 2011

(d)Within a further 15 working days after filing and service of discovery affidavits,  each  of  the  parties  will  make  arrangements  to  have discovered documents available for inspection by the other parties, and inspection will take place.

Application by the plaintiff for discovery by the defendant, dated 13 June

[4]      Mr Norris opposed this application.  He argued that as the plaintiff and the Registrar of Companies had undertaken a number of interviews with him in relation to the issues in this proceeding and had been provided with copies of a large number of documents during that process, it was unnecessary for him to be subjected to an order directing him to give further discovery of documents.  He further argued that the plaintiff had failed to give sufficient particulars of the claim so he was not obliged  to  give  discovery until  such  time,  if at all, as that was remedied.   He submitted that the plaintiff has not followed required statutory procedures in undertaking its investigation of the matters raised in this proceeding.

[5]      This  is  a  civil  proceeding  within  the  jurisdiction  of  this  Court  and  in accordance with the High Court Rules each party may be required to give discovery of documents to the other.   I am quite satisfied that the defendant should give discovery of documents.  This case does not fall into any of the exceptions, which include summary judgment proceedings,  swift track proceedings, judicial review

proceedings and appeals.   As noted in Green v Commissioner of Inland Revenue,[1]

[1] Green v Commissioner of Inland Revenue [1991] 3 NZLR 8

the purpose of the obligation to give discovery is fundamental:

One of the primary aims of the various processes of discovery is to ensure that the parties are not taken by surprise if the proceeding ultimately goes to trial; each party should be able to assess the strengths and weaknesses of the other’s case at a relatively early stage.

[6]      Objections to giving discovery of documents which might bolster the other

side’s case are ill-founded.  Documents which do not support the case of the party giving discovery must nonetheless be discovered.

[7]      There are situations, of course, where privilege attaches to certain documents. The defendant will find in the required form for a discovery affidavit various classifications of documents including those which are claimed to be privileged.  The attention of the defendant is respectfully drawn to the format that is required to be followed.

[8]      There was discussion at the hearing about the way in which the defendant should comply with his discovery obligations.  He informed the Court that he has a vast number of documents which would need to be discovered, in the case of one of the liquidations under scrutiny in this proceeding three pallet loads of boxes of documents.    Again,  the  attention  of  the  defendant  is  respectfully drawn  to  the obligation to discover all documents that relate to matters in question in the proceeding, so in assessing whether documents should or should not be discovered, reference needs to be made, with care, to the issues raised by the latest pleadings by each side.

[9]      I direct that the defendant will file and serve an affidavit giving discovery o f documents within 60 working days, with the following additional terms:

(a)    Documents  will  be  presented  in  sequentially  lettered  Eastlite-style binders, with every page numbered.

(b)No binder is to contain documents from the defendant’s files in relation to more than one liquidation.

(c)    At the front of each file there will be a page describing the contents of the file with sufficient particularity so that the categories of documents within the file are readily identified.

(d)Where  documents  containing  pages,  such  as  receipt  books,  deposit books and so forth are being discovered, the same procedure will be followed only using file boxes of similar size to Eastlite binders with, again, an index page on the front, and sequential lettering.   The documents, or clusters of documents within the boxes, will be sequentially numbered.

(e)    The  lists of  documents within  the  sworn  affidavit  will  refer to  the lettered Eastlite binders and boxes and, in the case of each, will reproduce the particulars contained in the summary for that file/box as just described.

[10]     I further direct that inspection arrangements will be made in relation to these documents within a further 15 working days, as for discovery being given by the plaintiff and the Registrar of Companies.

Application by the defendant for further and better particulars of the statement of claim, dated 13 June

[11]     The defendant’s principal complaint about the statement of claim is that it does not contain material demonstrating that the plaintiff has correctly followe d statutory procedures in undertaking its investigation.   It is clear that it is not the purpose  of  the  statement  of  claim  to  justify the  basis  of  the  investigation;  the statement of claim relates to issues identified by the Official Assignee and/or the Registrar of Companies during the course of that investigation, which it now wishes to use in court as a basis of seeking the orders which are identified in the statement of claim.

[12]     The defendant also complained that the document does not set out adequately the duties of a liquidator which he is alleged to have failed to comply with.

[13]     I have reviewed the amended statement of claim dated 20 May 2011.  In my view it adequately pleads the particulars required to fully and fairly inform the defendant of the case against him, as it presently stands.   Given that the case is brought, to date, largely on the basis of material ascertained during the plaintiff’s investigation of the defendant’s activities, in the areas covered by the pleading, it seems possible, at least, that the pleading will be amended after the defendant has given discovery as directed.  That frequently occurs and whether any future pleading of the plaintiff’s case gives sufficient particulars cannot responsibly be the subject of conjecture at this point.   In my opinion the pleading as it stands correctly and sufficiently  informs  the  defendant  of  the  duties  he  is  alleged  to  have  when

undertaking his activities, and in relation to each of the companies under review, the ways in which he is said to have breached those duties.  It is not a requirement of pleadings that they disclose the evidence of the party presenting the pleading that might ultimately be given in order to substantiate that pleading at trial.  Nor is it the function of pleadings to set out  propositions of law.   It is perhaps informative, particularly for the defendant in this case who represents himself, to record the following passage from BNZ Investments Ltd v CIR:[2]

[2] BNZ Investments Ltd v CIR (2008) 23 NZTC 21,821, Miller J

Under Rule 108 (equivalent to the current Rule 5.26) a statement of claim is to show the general nature of the plaintiff’s claim to the relief sought and to give such particulars of time, place, amounts, names of persons, nature and dates of instruments and other circumstances “as may suffice to inform the Court and the party or parties against whom relief is sought” of the cause of action.  It is not necessary to state the evidence supporting the facts alleged. Under Rule 130 a statement of defence must give a fair and substantial answer to any allegations of fact in the statement of claim, and must plead any affirmative defence.   It must give such particulars as may suffice to inform the Court, the plaintiff and any other parties of the defence.

The temptation to insist upon excessively refined pleadings is to be resisted as unnecessary and wasteful of costs and court time.  That is particularly so in complex cases, where over-pleading can obscure rather than clarify the issues.  Case management should ensure that each side is fairly informed of the case that must be met.   It can extend to requiring leading counsel to agree a list of issues.  Evidence can be exchanged in good time before the trial ...

[14]     For these reasons the defendant’s application is dismissed.

Further orders

(a)    I reserve leave to each side to apply for further directions in relation to the orders I have made (though not to challenge those orders) by memorandum.  Upon receipt of any such memorandum, the Registrar will convene a telephone conference with me.

(b)    I reserve costs on all applications.

(c)    I direct any further interlocutory applications in this proceeding are to be filed and served by 30 November 2011.

(d)I direct a telephone conference on 8 December 2011 at 9.30 am to deal with any interlocutory applications, and to make directions for this case through to trial.   For that purpose counsel for the plaintiff, and the defendant, are to be in a position to give the Court a carefully assessed estimate of the likely time the trial will occupy.   This will include advising the Court on the number of witnesses to be called, divided between witnesses of fact and experts.

[15]     Given  that  the  plaintiff  is representing himself,  there  would  be  merit  in counsel for the plaintiff and the defendant conferring carefully on these issues prior to the conference.  Memoranda, or a joint memorandum if possible, are to be filed and served no later than five clear working days prior to the conference, covering the

matters to be discussed at that conference.

J G Matthews

Associate Judge

Solicitors:

Meredith Connell, PO Box 2213, Auckland 1140, DX 24063 ([email protected])

Defendant – In Person.