Olliver
[2022] NZHC 1368
•10 June 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-000730
[2022] NZHC 1368
UNDER Section 370 of the Companies Act 1993 IN THE MATTER OF
An appeal by GREGORY MARTIN OLLIVER
Applicant
AND
DEPUTY REGISTRAR OF COMPANIES
Interested Party
Hearing: 3 June 2022 Appearances:
P J K Spring and M G Orange for Applicant
S P R Conway for the Deputy Registrar of Companies (an interested party)
Judgment:
10 June 2022
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie On 10 June 2022 at 12.00 noon Registrar/Deputy Registrar
Date:…………………………
Solicitors/counsel:
Crown Law, Wellington
Copy to:
S P R Conway
RE GREGORY MARTIN OLLIVER [2022] NZHC 1368 [10 June 2022]
Introduction
[1] The applicant, Gregory Olliver, has appealed a decision of the Deputy Registrar of Companies prohibiting him from holding office as a director or manager of any company for a period of four years.1
[2] Mr Olliver has filed an interlocutory application seeking leave to adduce further evidence in support of the appeal. The Deputy Registrar of Companies has filed a notice of opposition to this application.
Proposed further evidence
[3] The proposed further evidence is in two spiral bound folders. It comprises an affidavit from Mr Olliver running to 144 paragraphs, along with a large number of exhibits totalling 494 pages.
[4] The Deputy Registrar’s decision to prohibit Mr Olliver from holding office as a director or manager of a company arose out of Mr Olliver’s management of a company known as BBG Holdings Ltd (BBG). Mr Olliver was the sole director of the company.
[5]In his affidavit Mr Olliver:
(a)records the Deputy Registrar’s decision;
(b)discusses a subdivision project in which BBG became involved. He says that the subdivision had its genesis in his relationship with Sarah Sparks, whom he married in March 2000;
(c)sets out how the subdivision project was advanced. It involved another company, CIT Holdings Ltd (CIT), which acquired the properties which were to be subdivided;
1 Final Minute of Deputy Registrar of Companies – s 385 Companies Act 1993 – Gregory Martin Olliver, dated 20 October 2021.
(d)records that the purchases were funded by the BNZ;
(e)says that his relationship with Ms Sparks began to deteriorate in 2010 and details his view that her actions (which he says were taken without his knowledge) frustrated the subdivision project. In particular, he says that she and their solicitor, as directors of CIT, arranged for some of the properties to be transferred to a new trust;
(f)recounts steps which he says he took to try and regain control of these properties;
(g)records the BNZ’s concerns and says that, as a result, he came up with an alternative subdivision plan which he asserts would have seen BNZ repaid in full;
(h)notes that he chose BBG to take over the proposed subdivision. It was to purchase the remaining properties from CIT, although they were subject to caveats lodged by the new trust controlled by Ms Sparks. He asserts his belief these outstanding issues would resolve. He refers to legal advice which he says he obtained (although this advice is not annexed to his affidavit);
(i)deals with various contracts that BBG entered into with other entities in relation to the proposed subdivision and the work undertaken for BBG pursuant to those contracts;
(j)goes on to discuss the ultimate termination of the subdivision project;
(k)notes that CIT went into liquidation and that BBG made a claim in its liquidation;
(l)discusses the fact that BBG was placed into liquidation as well following the receipt of demands from the contractors who had worked on the subdivision project;
(m)deals with post-separation litigation issues with Ms Sparks;
(n)deals with his own health issues. He asserts that these issues impacted on his management of BBG’s affairs;
(o)deals with various creditors’ claims he lodged in the liquidation of BBG on behalf of various other entities related to him. He asserts that he sought professional advice in regard to these matters, but again the advice is not annexed.
[6] Mr Olliver then explains why he seeks leave to adduce the further evidence. He discusses the process he says was followed, first by the Companies Office and then the Deputy Registrar. He asserts that at no point was any affidavit evidence called for by the Deputy Registrar. He says that instead, questions and issues were put to him and he responded as required. He notes that the Deputy Registrar in his decision took the view that he (Mr Olliver) was responsible for the mismanagement of BBG, that the mismanagement was at the least reckless, that it was considered and deliberate, that it was undertaken to maximise the commercial benefit to him personally, and that he did not consider or sufficiently take into account the duties he owed to BBG or its creditors. Mr Olliver asserts that it is clear from the decision that the Deputy Registrar did not accept the explanations he had offered for his conduct in the submissions filed on his behalf. He says that his credibility is central to his appeal and he claims that he was not given the opportunity to properly address all relevant issues. He says that, in order for the Court to properly assess his explanations, he needs to give evidence under oath at the appeal hearing.
Further evidence — relevant principles
[7] The application is brought pursuant to r 20.16 of the High Court Rules. It provides as follows:
20.16 Further evidence
(1)Without leave, a party to an appeal may adduce further evidence on a question of fact if the evidence is necessary to determine an interlocutory application that relates to the appeal.
(2)In all other cases, a party to an appeal may adduce further evidence only with the leave of the court.
(3)The court may grant leave only if there are special reasons for hearing the evidence. An example of a special reason is that the evidence relates to matters that have arisen after the date of the decision appealed against and that are or may be relevant to the determination of the appeal.
(4)Further evidence under this rule must be given by affidavit, unless the court otherwise directs.
[8] Generally, an appeal proceeds on the evidence that was presented to the decision-maker and the parties do not have the opportunity to bolster their case with new evidence on appeal. The rule provides that leave to adduce further evidence can only be granted if there are “special reasons”. It is well established that, apart from updating evidence concerning matters which have occurred since the hearing the subject of the appeal, the power to grant relief is sparingly exercised.2
[9] I endeavoured to summarise relevant case law in B v A.3 I there noted as follows:
[25] The relevant principles governing the receipt of further evidence are straightforward:
(a)the Court can receive further evidence if it thinks that the interests of justice require it to do so;
(b)it is wrong to allow an appellant to bolster his or her case with additional evidence that was available at the lower Court hearing, but not adduced because of the particular view of the case being taken at the time;
(c)admitting further evidence on appeal is exceptional rather than routine. A change of heart about how a case should have been run will not suffice. The prospect of further evidence triggering a substantial re-litigation before the appellate Court of the substantive case will count against admitting the further evidence;
(d)generally, the further evidence must be fresh, credible and cogent;
2 Andrew Beck and others McGechan on Procedure (looseleaf ed, Thomson Reuters) at [HR20.16.01].
3 B v A [2020] NZHC 580, (2020) 26 PRNZ 58; and see, in the context of criminal appeals against conviction, Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273.
(e)evidence will not be regarded as fresh if it could, with reasonable diligence, have been produced at the trial;
(f)the absence of freshness is not an absolute disqualification. When the further evidence is not fresh, it will not generally be admitted unless the circumstances are exceptional and the grounds compelling. In addition, the further evidence needs to pass the tests of credibility and cogency;
(g)the interests of justice require the parties to put their best case forward at trial, in order to avoid wasting the Court’s limited time and resources. A high value is placed on finality when the parties have been afforded the opportunity and failed to take it; and
(h) the standard to be met is “rightly high”. (citations omitted)
Submissions
[10] Mr Spring, on behalf of Mr Olliver, argued that Mr Olliver’s appeal is distinct from appeals made against a decision of a Court at first instance, because no trial or hearing took place before the Deputy Registrar. He argued that this Court, as the appellate Court, has no evidence before it that has been given under oath. He further submitted that Mr Olliver’s affidavit will not cause any prejudice to any opposing litigant, as there is no opposing litigant. He submitted that no reply evidence will be required and that rather the Court will be tasked with deciding the appeal on a de novo basis and that it will be able to consider Mr Olliver’s affidavit along with all other information before it. He noted that the veracity of Mr Olliver’s explanations and his personal credibility were in issue but that no prior notice was given in this regard. He submitted that Mr Olliver has had no chance to address these matters. He argued that Mr Olliver’s affidavit is cogent and material, and that it corrects “clear factual errors” made by the Deputy Registrar in his decision. It was argued that the interests of justice require that the affidavit be admitted because it will assist the Court in deciding the appeal.
[11] Mr Conway, for the Deputy Registrar, noted the Deputy Registrar’s limited role in the appeal and advised that the notice of opposition was filed both to preserve the integrity of the Registrar’s processes under the bespoke prohibition regime and to highlight relevant considerations for the Court to consider. He took me through the
communications between Mr Olliver and the Integrity and Enforcement Team (IET) within the Ministry of Business, Innovation and Employment, and between Mr Olliver and the Deputy Registrar He discussed Mr Olliver’s proposed affidavit and r 20.16. He submitted that the statutory context pursuant to which the decision under appeal was made is relevant and he discussed the requirements of natural justice in the context of that statutory regime. He argued that the proposed evidence was reasonably available before the Deputy Registrar’s decision was made, that it is of limited relevance and that no “special reasons” exist such that Mr Olliver should be granted leave to adduce the further evidence.
Analysis
The statutory context
[12] The statutory context under which the decision under appeal was made bears on the Court’s assessment of whether a special reason exists such that leave should be granted to file further evidence.4 I consider first the provisions pursuant to which the decision to prohibit was made and then the appeal provisions.
Section 385
[13] The Deputy Registrar’s prohibition decision was made under s 385 of the Companies Act 1993. Relevantly, it provides as follows:
385 Registrar or FMA may prohibit persons from managing companies
(1)This section applies in relation to a company—
(a)that has been put into liquidation because of its inability to pay its debts as and when they became due:
…
(3)The Registrar … may, by notice in writing given to a person, prohibit that person from being a director or promoter of a company, or being concerned in, or taking part, whether directly or indirectly, in the management of, a company during such period not exceeding 10 years after the date of the notice as is specified in the notice. …
4 Chamberlain v Scott [2012] NZHC 2596, [2012] 21 PRNZ 176 at [14], cited in Brand v Registrar of Companies [2016] NZHC 2983 at [19].
(4)The power conferred by subsection (3) may be exercised in relation to—
(a)any person who the Registrar … is satisfied was, within a period of 5 years before a notice was given to that person under subsection (5) (whether that period commenced before or after the commencement of this section), a director of, or concerned in, or a person who took part in, the management of, a company in relation to which this section applies if the Registrar … is also satisfied that the manner in which the affairs of it were managed was wholly or partly responsible for the company being a company in relation to which this section applies; or
(b)any person who the Registrar … is satisfied was, within a period of 5 years before a notice was given to that person under subsection (5) (whether that period commenced before or after the commencement of this section), a director of, or concerned in, or a person who took part in, the management of, 2 or more companies to which this section applies, unless that person satisfies the Registrar …—
(i)that the manner in which the affairs of all, or all but one, of those companies were managed was not wholly or partly responsible for them being companies in relation to which this section applies; or
(ii)that it would not be just or equitable for the power to be exercised.
(5)The Registrar … must not exercise the power conferred by subsection
(3) unless—
(a)not less than 10 working days’ notice of the fact that the Registrar … intends to consider the exercise of it is given to the person; and
(b)the Registrar …considers any representations made by the person.
[14] An extensive analysis of s 385 was undertaken by Miller J in Davidson v Registrar of Companies.5 The Judge held that prohibition under s 385 is intended to be both protective and punitive:6
Prohibition is aimed not at remedying wrongs done to shareholders and creditors of the insolvent company but at protecting the public from unscrupulous or incompetent directors in future, deterring others, and setting appropriate standards of behaviour. At the same time, any given director or manager inevitably experiences prohibition as a punishment; it is an adverse
5 Davidson v Registrar of Companies [2011] 1 NZLR 545 (HC).
6 At [91].
consequence of an inquiry into his or her involvement in an insolvent company.
The Judge observed that where the management of a single company is at issue, the Registrar’s inquiry should consider the following matters:7
(a)Does the company qualify under s 385(1)?
(b)Was the respondent a director or manager of the company within the five years preceding the Registrar’s notice?
(c)Was the manner in which the company’s affairs were managed a contributing cause of its qualifying status?
(d)If so, ought the Registrar exercise the discretion to prohibit the respondent in all the circumstances?
(e)Where prohibition is appropriate, what is the appropriate term?
The Judge observed that the power to prohibit is broad and discretionary in nature. In exercising the discretion, the Registrar is not confined to the conduct that caused the company’s insolvency; “all of the individual director’s attributes and conduct in office” may be taken into account.8
[15] The requirements of natural justice in the context of the Registrar’s inquiry under s 385 were also considered by Miller J. He observed that s 385 “… establishes a simple and swift process, with no provision for hearing [which] suggests the power has a protective, even precautionary, purpose”.9 The Judge observed that s 385 says very little about the process to be undertaken, requiring only that the Registrar must not prohibit a person unless he or she receives not less than 10 working days’ notice of the Registrar’s intention to consider prohibition and only after the Registrar has
7 At [103].
8 At [97].
9 At [99(c)].
considered any representations that the respondent may make.10 He noted that the Registrar has adopted the following practice:11
… the [IET] prepares a report and recommendations; that report is given to the respondent with the notice required under s 385; communications may ensue between the respondent and the [IET]; if the [IET] maintains that prohibition is warranted, the report and the respondent’s representations are submitted to a specially appointed Deputy Registrar of Companies for decision.
The Judge acknowledged that the content of the right to natural justice depends on the power being exercised and the circumstances. He expressed the view that the limited process in s 385 does not preclude additional requirements and noted that, in his view, s 27 of the New Zealand Bill of Rights Act 1990 applies.12 He went on to observe:13
Accordingly, the Registrar must give the respondent reasonable notice of the case he or she is to meet. In circumstances where the respondent normally knows much more about the company’s management than does the Registrar, that requirement is unlikely to be onerous; it may suffice that the respondent knows the general nature of the allegations. But as a practical matter, some investigation must normally precede the Registrar’s notice; except in the simplest of cases, the Registrar could scarcely act without first inquiring into the company’s circumstances[.] That investigation is likely to isolate instances of company mismanagement or features of the director’s conduct or qualifications which should be identified when notice is given if they are to inform the Registrar’s decision.
[16] In Mani v Registrar of Companies, Thomas J emphasised that there is nothing to preclude the Registrar from taking into account hearsay or generalised statements; it is a matter of assessing the probative value and weight of the evidence, which is for the decision-maker to evaluate.14 However, the Judge also observed:15
While criminal charges are not involved, there are serious consequences of an order under s 385 which will have a significant effect on the person subject to the order. In those circumstances, and given the summary process, higher quality evidence may be necessary for the decision-maker in order to be satisfied in terms of s 385(4).
10 At [104].
11 At [105].
12 At [106]
13 At [107].
14 Mani v Registrar of Companies [2016] NZHC 3002, (2016) 11 NZCLC 98-048 at [34].
15 At [17]. The standard of proof for the purposes of s 385(4) is the balance of probabilities: Mani v Registrar of Companies, above n 14, at [15]–[16]; and Brand v Registrar of Companies [2018] NZHC 3148 at [43].
Section 370
[17] Mr Olliver’s appeal is brought pursuant to s 370 of the Companies Act. It provides as follows:
370 Appeals from Registrar’s decisions
(1)A person who is aggrieved by an act or decision of the Registrar under this Act may appeal to the court within 15 working days after the date of notification of the act or decision, or within such further time as the court may allow.
(2)On hearing the appeal, the court may approve the Registrar’s act or decision or may give such directions or make such determination in the matter as the court thinks fit.
[18] The section gives a general and unrestricted right of appeal, which proceeds de novo. Section 385 requires the decision-maker to be satisfied as to a number of threshold issues; if he or she is so satisfied, the decision then confers a discretion to prohibit.
[19]The authorities suggest as follows:
(a)In regard to the factual findings required before the discretion can arise, the Court must consider the merits of the case afresh. The weight given to the reasoning of the Deputy Registrar is a matter for the Court’s assessment.16 The appellant bears the onus of satisfying this Court that it should differ from the decision of the Deputy Registrar and that it is only if this Court considers that the decision is wrong it is justified in interfering with it;17
(b)In regard to the exercise of the discretion in the event the decision- maker is satisfied as to the factual matters specified, the threshold for a successful appeal is more limited. An appellant has to demonstrate that there was an error of law or principle, that an irrelevant consideration
16 Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4]–[5]; Mani v Registrar of Companies, above n 14, at [5]; Davidson v Registrar of Companies, above n 5, at [84]; Brand v Registrar of Companies, above n 15, at [33].
17 Austin, Nichols & Co v Stitchting Lodestar, above n 16 at [4]; Brand v Registrar of Companies, above n 12 at [33].
was taken into account, that a plainly relevant consideration was overlooked, or that the decision was plainly wrong.18
The process followed by the Deputy Registrar
[20] The IET and the Deputy Registrar adopted the following process in collecting evidence/information from Mr Olliver:
(a)On 10 February 2021, the IET served Mr Olliver with notice of the allegations of mismanagement made against him in respect of a number of companies including BBG. The notice was given pursuant to s 385(5). Specific incidents of mismanagement were identified, including reckless and insolvent trading by BBG. The notice gave Mr Olliver 20 working days to respond, informed him of the process that would be followed and the possible consequences, outlined the documents that IET would submit to the Deputy Registrar, and advised Mr Olliver that if he considered that any additional materials should be submitted to the Deputy Registrar, he should include this material in his representations to the Deputy Registrar, explaining its significance;
(b)On 25 February 2021, Mr Olliver’s legal advisors contacted IET seeking an extension of time to respond, citing the complexity of the matter, and noting the pre-existing commitments of Mr Olliver and his counsel. Mr Olliver was granted an extension until 31 May 2021.
(c)On 31 May 2021, Mr Olliver through his solicitors provided an interim response and sought a further extension of time until 31 August 2021 so that Mr Olliver could give a more fulsome response. Several reasons were given for this request including the volume of material, the need for witness statements and demands on Mr Olliver’s time.
18 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32]; Re Toilolo [2019] NZHC 1090 at [29]–[31].
(d)The matter was then referred to the Deputy Registrar. He dealt with Mr Olliver’s request in an interim minute dated 4 June 2021. The Deputy Registrar noted as follows:
4.2 I am satisfied that the communications from IET made [Mr Olliver] aware of the provisions of s 385; the powers available to the Registrar; the process that would be followed and the possible consequences.
4.3 In that regard I refer to paragraph 76 of the interim submissions where it states “we consider it would be in the best interests of both the Registrar and Mr Olliver if you were to provide us with a reply in this letter which identifies any areas of particular concern which our final response could focus on and/or which companies should be afforded priority.”
4.4 That is not the way this process works. [Mr Olliver] knows the allegations made against him and the requirements of s385. It is up to [Mr Olliver] as to what information he chooses to provide me with. I then make a decision based on the totality of the information referred to in paragraph 2 [list of materials to be considered by the Registrar] and the information provided by [Mr Olliver]. [Mr Olliver] does not get multiple chances to provide me with the information he wishes [me] to consider.
4.5 In terms of the principles of natural justice, I note IET suggested that [Mr Olliver] seek professional advice. IET made [Mr Olliver] aware that it considered there had been some mismanagement which had a causal link to the failure of [BBG] and provided information in support of those allegations. I also note the only information I will consider is that referred to in paragraph 2 above. All that information was made available to [Mr Olliver] or mentioned where it could be located, such as the liquidators’ reports of [BBG] in the public register at the Companies Office. The email correspondence referred to in paragraph 2.1(j) does not deal with the substantive allegations against [Mr Olliver] and that necessarily means it cannot be taken into account when deciding whether or not to exercise my power of prohibition under s385. Therefore, I will not be making a decision on the basis of information or allegations that [Mr Olliver] had no opportunity to be aware of.
He noted that Mr Olliver had already received a three-month extension which was significantly longer than the 10 day statutory period and that Mr Olliver had not sought a further extension until the day the deadline was due to expire. He took into account the time limits in s 385, the extensions already granted and the purpose of the legislation, and noted
that there was “no legal requirement to give any further latitude to Mr Olliver to finalise his position”.19 The Deputy Registrar nevertheless granted a further extension of 30 working days.
(e)On 5 July 2021, Mr Olliver provided his response. Inter alia, he provided various documents to the Deputy Registrar. He also offered to provide witness statements to vouch for his commercial bona fides.
(f)On 19 July 2021, the Registrar invited him to provide the witness statements.
(g)On 28 July 2021, the Registrar raised further matters arising out of a High Court decision involving BBG and CIT.20 The Deputy Registrar sought a response within 10 working days.
(h)Mr Olliver sought and was granted an extension until 31 August 2021 to respond.
(i)On 24 August 2021, Mr Olliver sought a further extension of two weeks until 14 September 2021, which the Deputy Registrar granted.
(j)Mr Olliver complied with this timetable. His response, submitted in a letter from his solicitors, ran to some 26 pages and, according to Mr Olliver, the enclosures sent with the letter ran to some 4,000 pages.
(k)On 20 October 2021, the Registrar issued his decision. The decision included an extensive chronology covering several pages that largely drew on materials submitted by Mr Olliver. It is also clear from the decision that the Deputy Registrar received further information from Mr Olliver via his solicitors on 15 September 2021, 24 September 2021 and 12 October 2021. The Deputy Registrar recorded that he took this
19 Interim minute dated 4 June 2021 at [8.6]–[8.12].
20 BBG Holdings Ltd (in liq) v Faitupaito [2021] NZHC 1877 — decision issued on 23 July 2021.
further material into account notwithstanding that it was filed out of time.
Breach of principles of natural justice?
[21] I do not consider that there is any tenable argument that the principles of natural justice were breached and that the proposed further evidence should be admitted to remedy that breach.
[22] The IET served Mr Olliver with notice as required by s 385(5) of the Act. It identified the incidents of mismanagement which it had investigated and which it was asserting were attributable to Mr Olliver. It invited Mr Olliver to make representations in relation to these issues and as to why he should not be prohibited. It asked him to ensure that any representations made by him included all matters that he considered the Deputy Registrar should take into account and to provide any supporting documentation. After multiple delays and extensions of time, Mr Olliver eventually replied. His reply was very detailed. It came from his solicitors and comprehensive documentation was provided. Mr Olliver has had every opportunity to put his case.
[23] Parties should put their best case forward, to avoid wasting the Court’s limited time and resources. Permitting a party to file further evidence on appeal should not become a backdoor means by which an appellant seeks to obtain a rehearing of the case on materials which were available from the outset and which the applicant seeking leave to adduce further evidence has already had the opportunity to provide.
Is the proposed evidence fresh?
[24] The vast majority of the material in Mr Olliver’s proposed affidavit is not fresh. With the exception of three paragraphs towards the end of the affidavit, the affidavit does no more than rehearse material that was reasonably available before the Deputy Registrar made his decision. In any event, a comparison between the Deputy Registrar’s decision and the matters traversed in the proposed affidavit discloses that much of the material which Mr Olliver refers to and annexes to his affidavit was before the Deputy Registrar when he made his decision. Presumably it was included in the materials submitted by Mr Olliver’s legal advisors and/or obtained by the IET.
Other difficulties with proposed evidence
[25]There are other difficulties with the proposed evidence.
[26] First, much of the material in the proposed affidavit is of no or limited relevance. For example, Mr Olliver goes into fine detail about the contract work done for BBG. He annexes a schedule of preliminary site clearing work. These matters do not seem to be relevant to the core issue of mismanagement and I note that all of the various invoices issued by the contractor and annexed to the affidavit are already referred to in the Deputy Registrar’s decision.
[27] Secondly, the proposed evidence at least in part is inadmissible. For example, at numerous places in his affidavit, Mr Olliver expresses his opinions about the Deputy Registrar’s decision (see, for example, paras 31, 39, 41, 44, 48, 53, 57, 76 and 77). He concludes (at para 133) as follows:
I do not agree that the decision by Mr Baker (sic) to disqualify me from being a director, promoter or manager of any company for a period of four years was a reasonable one.
Mr Olliver’s views in this regard are inadmissible opinion evidence.
[28] Nor am I persuaded that Mr Olliver’s proposed evidence is either particularly credible or cogent. It largely comprises a self-serving narrative which Mr Olliver seeks to advance to clear himself of any allegations of mismanagement. He frequently says that he took and acted on legal advice. That advice is not attached to the affidavit. He seeks to attribute much of what occurred to his former wife and to lay much of the blame at her feet. As is clear from the affidavit, there has been considerable litigation between Mr Olliver and Ms Sparks following the break-up of their marriage and I have no doubt but that she would take a very different view of the allegations made. While the exhibits filed seem by and large to be credible, as I have noted, it is clear from the Deputy Registrar’s decision that he had relevant materials before him when he made his decision.
[29] No special reason has been advanced which suggests that it is appropriate to grant leave. Rather, the statutory context suggests that leave is inappropriate. If
affidavit evidence was considered to be necessary when the Deputy Registrar was making a decision under s 385, then the legislation would have so provided. It does not. Rather, the section has been purposefully designed to operate as a simple and swift process, reflecting its precautionary and protective purposes. Allowing further evidence on appeal in the circumstances outlined by Mr Olliver would necessitate the giving of oral evidence on appeal and raise the probability of cross-examination. Either the role of the Deputy Registrar on appeal would potentially be expanded or the Court would have to appoint an amicus. This would undermine the bespoke legislative regime.
[30]Accordingly, the application to adduce further evidence is declined.
Costs
[31] Mr Conway sought costs. He acknowledged that the Deputy Registrar is not a party to the appeal, but submitted that his opposition to the application to adduce further evidence was required.
[32]I direct as follows:
(a)any application for costs and/or disbursements is to be advanced by way of memorandum, to be filed and served within 10 working days of the date of release of this judgment;
(b)any reply is to be filed and served, also by way of memorandum, within a further 10 working days;
(c)memoranda are not to exceed five pages.
I will then deal with the issue of costs and disbursements on the papers, unless I require the assistance of counsel.
Wylie J
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