Purucker v Huebler

[2023] NZHC 981

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2018-442-000058

[2023] NZHC 981

BETWEEN

MARINA ALEXANDRA PURUCKER

Plaintiff

AND

IRIS HUEBLER

First Defendant

AND

RAINER WOLFGANG HUEBLER

Second Defendant

On the Papers

Counsel:

J Pietras for Plaintiff

First Defendant self-represented G Downing for Second Defendant

Judgment:

28 April 2023

JUDGMENT OF ISAC J

[Court appointed expert and adjournment]

Introduction

[1]    A five day trial of this proceeding is scheduled to commence on 8 May 2023. The first defendant, Ms Iris Huebler, is a serving prisoner. On 31 March 2023, she filed an interlocutory application seeking the appointment of an independent forensic expert. That application was given a return date of 8 May 2023, being the first day of the trial.

[2]    Subsequently, in a letter of 23 April 2023, Ms Huebler sought an adjournment of the trial. In support of that application she points to the following matters:

PURUCKER v HUEBLER & ANOR [2023] NZHC 981 [28 April 2023]

(a)the inability to have her interlocutory application for the appointment of an independent expert determined before the trial;

(b)her current lack of access to a personal laptop and diaries which, she submits, are needed for her preparation for the trial.

[3]    I convened a teleconference with Ms Huebler and counsel on 26 April 2023. Following that discussion, I indicated that I would deal with the applications for an appointment of an independent forensic accountant, and for an adjournment, on the papers.

Procedural background

[4]    The plaintiff, Marina Purucker, commenced these proceedings against the defendants in 2018. The third amended statement of claim alleges that Ms Huebler was Ms Purucker’s bookkeeper from 2003 in relation to a café Ms Purucker operated in Tākaka. Between mid-2011 and October 2018, Ms Purucker is said to have travelled to her native Germany to look after her parents and an aunt, spending more than half of her time overseas. She then alleges that the first defendant, over a period of more than six years, between May 2012 and October 2018, fraudulently misappropriated in the order of $873,364.93 of the plaintiff’s funds.

[5]    Relevant to the current applications is the plaintiff’s allegation that following a prosecution that commenced in 2019, in 2021 Ms Huebler pleaded guilty to and was convicted of five counts of theft by a person in a special relationship. It is said that subsequently Ms Huebler applied to vacate her guilty pleas but was unsuccessful in that application. As a result, on 11 October 2022 she was sentenced in the Nelson District Court to four years’ imprisonment for the offending against Ms Purucker.

[6]    In a separate cause of action, Ms Purucker seeks a judgment against both defendants for money had and received relating to two sums, $138,090.29 and

$19,300.00. These sums are said to represent amounts either transferred into the defendants’ joint back account, or were written in cheques cashed by the second defendant, Mr Huebler, from the plaintiff’s bank account.

Should the Court appoint an independent forensic expert?

[7]    Ms Huebler submits that an independent financial expert is needed to support everyone in the trial, and is most likely to cut the required trial time from five days down to three. She submits an independent expert will substantially reduce the number of witnesses that need to be called and will reduce the cross-examination time that may otherwise be needed for the plaintiff’s expert witness, Mr Scoble. Ms Huebler also submits that an independent expert is necessary to ensure a fair trial in which the court is provided with impartial expert analysis that is based on all of the relevant information. That is because Mr Scoble is not independent, and his report is incomplete or not based on all the available information.

Law

[8]    Rule 9.36 of the High Court Rules 2016 confers a discretion on the court to appoint a court expert in a proceeding in which a question for an expert witness arises. Any such expert is required to inquire into and report upon any question of fact or opinion not involving questions of law or of construction.1

[9]    The question to be submitted to the court expert and the instructions (if any) given to them must, failing agreement between the parties, be settled by the court.2 Thereafter, the court expert must send their report to the court, and make copies available to the parties.3 Any party may apply to the court to cross-examine a court expert provided they have applied for leave 10 working days after receiving the court expert’s report.4

[10]   If a court expert is appointed, a party may call one expert witness, or with leave, more than one, to give evidence on the question reported by the court expert (provided the party gives notice of an intention to do so a reasonable time before the trial).5

1      High Court Rules 2016, r 9.36(1).

2      Rule 9.37.

3      Rule 9.38(1) and (2).

4      Rule 9.40(1) and (2).

5      Rule 9.42(1).

[11]   For an appointment to be made, there must first arise a “question for an expert witness”.6 The court should also consider whether such a report is likely to result in an important question and whether the proposed expert has the requisite knowledge and skill.7

Consideration

[12]   I am not satisfied that it is appropriate to appoint a court expert. Ms Huebler appears to be a bookkeeper, and could be expected to be financially literate and, therefore, well able to address the factual issues she wishes to advance in her defence. This proceeding has been in train since 2018, and the request for the appointment of an expert has been made at the last minute. It would not be possible to grant the application without adjourning the trial. That in turn raises the interests of justice, and in particular Ms Purucker’s expectation that her claim is heard without undue delay.

[13]   While Ms Huebler has certainly been in custody now for some time, it appears from the materials available to me that she was imprisoned approximately three years after the proceedings commenced, and has had ample time to begin briefing expert evidence of her own had she considered it necessary. Regardless, given Mr Huebler has the same interest in Ms Huebler’s defence—that all the funds in issue have been returned to the plaintiff—it could be expected that he would have briefed the expert evidence had he wished to.

[14]   Moreover, I am not satisfied that the appointment of a court expert is likely to resolve the central issue. It seems clear that Ms Huebler does not accept that she misappropriated the plaintiff’s funds. She has given no indication that she would accept the views of an independent expert were they to conclude that the moneys in issue had indeed been misappropriated.

[15]I therefore decline to appoint a court expert.

6      Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HR9.36.01].

7      At [HR9.36.01].

Application for adjournment?

[16]   Rule 10.2 of the High Court Rules confers a broad discretion on the Court to adjourn a trial “if it is in the interests of justice”. As I have noted previously,8 principles that may inform the Court’s discretion include the efficient use of court resources, the relative prejudice to the parties in granting or denying an adjournment, whether the applicant has acted reasonably, the strength of the reasons advanced in support of the application, and the right of the parties to a fair trial.

[17]   Beyond Ms Huebler’s desire to have an independent forensic expert appointed before a trial takes place, in support of her application for an adjournment she points to her laptop and what she says are relevant papers originally seized by Police, which have since been returned to her home in Tākaka. Given she is in custody she does not have access to that material, and claims that she is prejudiced in her ability to defend the claim in its absence.

[18]   During the teleconference, Mr Downing confirmed that his client would ensure that any relevant material held at  Ms Huebler’s  home  will  be  couriered  to  her. Mr Pietras, for the plaintiff, also confirmed that material provided to his office by  Ms Huebler for inclusion in the common bundle will be included.

[19]   In light of these sensible and practical steps, I am not satisfied that there will be any material prejudice to Ms Huebler, or fair trial concerns, if the trial proceeds as scheduled. The proceeding has been on foot for five years and Ms Huebler has had ample time to prepare her defence. She already has access to the evidence provided by the plaintiff. If further accommodations are necessary prior to the trial, and as the trial develops, they can be made. But further delay, and the risk of prejudice to the plaintiff, leads me to the clear view that an adjournment is not in the interests of justice.

Conclusion and result

[20]   Ms Huebler’s application for the appointment of a court expert is dismissed. So too is her application for an adjournment of the trial.

8      Poutama Kaitiaki Charitable Trust and D & T Pascoe v Taranaki Regional Council [2022] NZHC 628 at [39].

[21]Leave to apply is reserved. The costs of these applications are reserved.

Isac J

Solicitors

Thomas Dewar Sziranyi Letts, Lower Hutt for Plaintiff McFadden McMeeken Phillips, Nelson for Second Defendant