Purucker v Huebler
[2021] NZHC 968
•4 May 2021
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CIV-2018-442-58
[2021] NZHC 968
BETWEEN MARINA ALEXANDRA PURUCKER
Plaintiff
AND
IRIS HUEBLER
First Defendant
IRIS HUEBLER and RAINER HUEBLER
Second Defendants
Hearing: 23 April 2021 Appearances:
A Shaw for plaintiff
A Bamford for first defendant and first-named second defendant G Downing for second-named second defendant
Judgment:
4 May 2021
JUDGMENT OF ASSOCIATE JUDGE JOHNSTON
[1] By notice of interlocutory application dated 19 February 2021 the first defendant, Ms Iris Huebler, applies for a stay of this civil proceeding until such time as criminal charges against her have been disposed of. Her application is opposed by the plaintiff, Ms Marina Purucker. The matter was argued at the conclusion of the Associate Judge’s list on 23 April 2021.
[2] The essential accusation made in both proceedings is that Ms Huebler stole over $800,000 of Ms Purucker’s money by means of numerous transactions between 2010 and 2018. The same transactions and amounts of money are at issue in both proceedings. In the civil proceeding, Ms Purucker seeks recovery of those amounts. In the criminal proceeding, the Crown has charged Ms Huebler with theft by a person
PURUCKER v HUEBLER [2021] NZHC 968 [4 May 2021]
in a special relationship. Mr Bamford says that Huebler’s defences will be the same in the two proceedings — that the transactions were all legitimate.
[3] Against that background, Ms Huebler applies “… for an order staying the plaintiff’s proceeding until after the trial of charges she faces in the District Court at Nelson under CRI-2019-042-000749 as detailed in the attached Crown Charge List …”.
[4]The pleaded grounds for the application are as follows:
(a)It is likely to cause prejudice by requiring the defendant to disclose her evidence in this proceeding when;
(i)She has a right to silence in criminal proceedings which is yet to be allocated a trial; and
(ii)In the criminal proceedings she cannot be compelled to be a witness.
(b)Allowing this proceeding to continue with the requirement that she disclose, by way of briefs, her evidence and evidence of witnesses she may call as part of her defence case, will breach the rights detailed above and this Court has an obligation to protect those rights.
(c)The prejudice to the plaintiff that would result from staying this proceeding until after the completion of the trial in the criminal proceedings does not justify a process which would result in a breach of the rights detailed above.
[5] At the heart of Mr Bamford’s submission for Ms Huebler is the proposition that there is a complete coincidence of facts involved in the two proceedings and that the core legal issues are also the same, albeit that they must be approached through civil and criminal lenses reflecting such things as the different standards of proof involved.
[6] Having emphasised the parallels between the allegations in the civil proceeding and the charges in the criminal proceeding, and Ms Huebler’s defence to both, Mr Bamford submitted that if the civil trial were allowed to precede the criminal, that would oblige Ms Huebler to reveal her defence and effectively require her to give evidence and subject herself to cross-examination in order to defend the civil proceeding on the very issues which will be involved in the criminal proceeding. He submitted that that would deny her her right to silence as now articulated in s 25 of the New Zealand Bill of Rights Act 1990.
[7] Finally, Mr Bamford informed the Court that the very strong probability is that the criminal proceeding will go ahead during the third quarter of this year — during September 2021. He concluded with that point in order to meet the plaintiff’s concerns about delay.
[8] For the plaintiff, Mr Shaw submitted that the law presumes that a plaintiff in Ms Purucker’s position is entitled to prosecute her civil claim, and that it is for the defendant to displace this presumption.
[9] He submitted that mere reliance on the right to silence is never enough to do so, and that the defendant’s pleaded grounds in her notice of application are effectively limited to her reliance on this right.
[10] What the cases say is that the presumption will only be displaced where the Court is satisfied that a refusal to grant a stay would give rise to a risk of a miscarriage of justice, and, although it is true that the defendants’ notice of application puts the right to silence at the forefront of her argument, the issue is whether in the particular circumstances of this case there is such a risk.
[11] Mr Shaw suggested that Ms Huebler had made this application at the last moment, given that the proceeding was commenced in October 2018.
[12] Mr Bamford did not respond to this point other than to make the observation that the timing of the application was not indicative of the merits.
[13] Whilst there is in this case — as is often the case — room for criticism concerning delay, that should not be permitted to affect any substantive right that Ms Huebler may have to protect important rights going to fairness in the criminal proceeding.
[14] Mr Shaw relied on Brewer J’s judgment in Luo v Shiu.1 In that case, his Honour accepted counsel’s submission as to the principles involved:
[14] This provision does not, however, prevent the Court from staying civil proceedings pending determination of concurrent criminal proceedings on
1 Luo v Shiu [2019] NZHC 2620.
other grounds. Mr Bigio sets out in convenient summary form the well established principles governing an application for stay in these circumstances:
15.In McMahon v Gould, Wootten J reviewed the existing authorities in Australia and elsewhere (including Jefferson Ltd v Bhetcha) and set out the following guidelines for the Court on an application for stay:
(a)There is a rebuttable presumption that a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court. The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff’s ordinary rights should be interfered with;
(b)The court’s task is one of “the balancing of justice between the parties”, taking account of all relevant factors. Each case must be judged on its own merits;
(c)One factor to consider is the accused’s “right of silence” and the reasons that right exists. Some consequences of the right are not legitimate reasons for its existence and amount to mere tactical advantages which an accused may wish to avail himself of at a criminal trial. The court need not be concerned to preserve such advantages. Rather, the focus should be to avoid the causing of “unjust prejudice” through continuance of civil proceedings;
(d)Further, the plaintiff is not debarred from pursuing their action merely because to do so would, or might, result in the defendant (if he wishes to defend the action), having to disclose what his defence is likely to be in the criminal proceeding;
(e)The court should consider whether there is a real and not merely notional danger of injustice in the criminal proceeding;
(f)In this regard factors which may be relevant to this case include:
(i)the proximity of the criminal hearing;
(ii)the possibility of a miscarriage of justice e.g. by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses;
(iii)the burden on the defendant of preparing for both sets of proceedings concurrently; and
(iv)whether the defendant has already disclosed his defence to the allegations.
[15]Then, at paragraph 15 his Honour continued:
[15] The problem for Ms Shiu, which Mr Bigio recognises, is that the courts seldom grant a stay in circumstances such as these.
[16] In the paragraphs that follow his Honour described the argument advanced on behalf of the applicant there that it was time for a change of view, particularly bearing in mind s 25 of the New Zealand Bill of Rights Act. Brewer J rejected that contention:
[46] It follows I do not accept Mr Bigio’s submission that the Courts’ approach to cases of this sort is outdated and incorrect because the impact of NZBORA has not been fully considered. Ms Shiu has, as against her prosecutor, the rights compendiously called the right to silence. NZBORA affirms, protects and promotes those rights. The Courts will be influenced by the existence of the rights when a party to a civil case applies for a stay or adjournment because of a concurrent prosecution involving the same circumstances. It is a factor to be taken into account in considering the balance of justice between the parties, but it is not an overriding factor. NZBORA has not changed the way the right to silence is regarded so that, to use Mr Barker’s words, the rebuttable presumption against a stay is now a rebuttable presumption in favour of a stay.
[47] The fact that Mr Luo and Ms Yip are complainants in the prosecution does not affect their right to have their claim proceed as expeditiously as reasonable. They are not the prosecutor, they are witnesses. They are not agents of the State whose actions can be subject to NZBORA. They are asserting personal claims for redress. The dicta in Commissioner of Police v Wei that “[i]n a case where the prosecuting agency is, in effect, the same party as the plaintiff in the civil proceeding, considerations of entitlement of a civil plaintiff to pursue his or her case without delay are obviously diluted substantially” do not apply to them.
[48] I will now turn to whether Ms Shiu has discharged her onus to show that it is just and convenient that the plaintiffs’ ordinary rights should be interfered with.
[49]I find the relevant factors (in no particular order or ranking) to be:
(a)There is no date set for the criminal trial. At the earliest it will be March 2020, but it could be much later. There is the potential for considerable delay. A one-day hearing of the plaintiffs’ applications could, right now, be scheduled for February 2020.
(b)On the other hand, Ms Shiu now seeks an adjournment only of the applications for summary judgment bearing directly on the $500,000 sought to be recovered by Mr Luo. A partial adjournment could be granted so that the summary judgment on the third cause of action and the application for interim orders would proceed without delay.
(c)A partial adjournment would protect Ms Shiu’s right to silence on the charges on which she is being prosecuted.
(d)There is no particular prejudice claimed by the plaintiffs if there is a partial adjournment. Their case is that $500,000 was paid by Mr Luo through the exercise of deception in the belief it was payable under joint venture obligations. Mr Luo wants the money back, but he does not claim financial hardship or pending loss of opportunity. The plaintiffs would, however,
not be able to argue the fifth cause of action which is closely related to the third cause of action.
[17]Mr Shaw also referred me to ADT Securitas v Geange,2 Wells v Lewis3 and
Commissioner of Police v Burgess.4
[18] A plaintiff’s right to have their action tried in civil proceedings should not be interfered with. The onus of satisfying the Court that this right should be interfered with lightly lies on the party seeking a stay.5
[19] The issue here is whether, having regard to all of the circumstances, to allow a civil proceeding to go ahead prior to a related criminal proceeding will compromise the defendant in the latter to the point of risking a miscarriage of justice or unfairness.
[20] I am not satisfied that this is the case here, essentially for the reasons advanced by Mr Shaw:
(a)Ms Huebler has already pleaded her defence in the civil proceeding;
(b)Any evidence she gives in the civil proceeding in support of her pleaded defence will be exculpatory; and
(c)It is open to the Court to make an order prohibiting inspection of the file in the civil proceeding prior to the conclusion of the criminal proceeding.
[21] Moreover, there is an intensely practical reason why the order sought by Ms Huebler is not necessary.
[22] Enquiries of the Registry in Nelson indicate that a five-day fixture for a circuit proceeding is most unlikely to be available until next year — probably during the third quarter of 2022.6
2 ADT Securitas v Geange (1992) 6 PRNZ 100.
3 Wells v Lewis (1990) 3 PRNZ 454 (HC).
4 Commissioner of Police v Burgess [2011] 2 NZLR 703.
5 See Luo v Shiu, above n 1, at [48].
6 As it happens, unusually, there may be some time for civil trials available in September of this year, but given that the criminal proceeding is set down for September it seems almost inconceivable that the defendant could also be involved in a significant civil trial.
[23] In those circumstances it will not be necessary for the key pre-trial steps — most particularly the exchange of evidence — to commence prior to the beginning of the second quarter of 2022.
[24] Thus, quite apart from the view I have reached as to the merits of the application, it does not appear to me that any useful purpose would be served by making the order sought by Ms Huebler. The reality is that the civil proceeding can be set down now so that the parties know that it will go to trial on a certain date, and, as the criminal proceeding is likely to be disposed of before the end of this year, the concerns that the defendant raises will not eventuate.
[25] Against that background, I dismiss the defendant’s application and direct the Registrar to set this civil proceeding down for trial not before 1 April 2022, allowing five days.
[26]I make the following pre-trial directions:
(a)No later than 60 working days prior to trial, the plaintiff is to serve her briefs of evidence, a proposed chronology and a proposed index for a common bundle of documents;
(b)No later than 40 working days prior to trial, the defendant is to serve her briefs of evidence and proposed amendments to the chronology and a list of additional documents for inclusion in the common bundle of documents;
(c)No later than 30 working days prior to trial the plaintiff is to serve any reply briefs of evidence;
(d)No later than 20 working days prior to trial the plaintiff is to file and serve a joint chronology (marked up as necessary to reflect any differences between the parties) and a common bundle of documents (indexed and paginated in the usual way);
(e)No later than 10 working days prior to trial the plaintiff is to file a synopsis of her submissions;
(f)No later than 5 working days prior to trial the defendants are to file synopses of their submissions.
[27] Costs are reserved. If counsel are unable to agree costs, as I would expect them to be able to do, they may file and serve memoranda in the usual way.
Associate Judge Johnston
Solicitors:
C & F Legal Ltd, Nelson for plaintiff
Bamford Law, Nelson for first defendant and first-named second defendant McFadden McMeeken Phillips, Nelson for second-named second defendant
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