Siemer v Official Assignee - [2013] NZHC 112

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-1709 [2013] NZHC 112

BETWEEN
V R SIEMER

Applicant

AND

OFFICIAL ASSIGNEE First Respondent

AND

K FARDELL AS EXECUTRIX OF THE ESTATE OF J R F FARDELL

Second Respondent

Hearing: 25 July 2012

Appearances:

Applicant in person
DM Salmon and ITF Hikaka for First Respondent
Appearance for the Second Respondent excused

Judgment:

8 February 2013

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 8 February 2013 at 2:00 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

SIEMER v OFFICIAL ASSIGNEE [2013] NZHC 112 [8 February 2013]

[1] The applicant, a bankrupt, has brought judicial review proceedings against the Official Assignee who, under the provisions of the Insolvency Act 2006, has control of Mr Siemer’s estate. The review proceedings concern a decision by the Official Assignee not to pursue certain Court proceedings in which Mr Siemer was involved prior to his bankruptcy and to refuse to assign the claim in those proceedings back to Mr Siemer.

[2] In judicial review proceedings a party may not cross-examine a deponent without the leave of the Court. This requirement follows from the nature of the proceeding which is confined in most cases to a consideration of the process by which a statutory power of decision has been exercised. The Court’s focus is not on whether the decision-maker made the right decision but on whether all relevant factors were considered, all irrelevant factors disregarded, and the principles of natural justice observed. Even where the ground for challenge is unreasonableness, that conclusion is available to the Court only where the outcome of the exercise of the power of decision is so irrational or such that no reasonable body of persons could have arrived at the decision leading to an inference that the power must have been misused.

[3] For these reasons judicial review proceedings almost always involve the consideration of affidavit evidence upon which there is no cross-examination. The Court examines the written material recording the challenged decision and the reasons for it to decide whether the decision-maker’s process has been in accordance with the legal requirements. Upon a review, the Court does not act as if it were hearing an appeal against the substance of the decision.

[4] Cross-examination, however, may be permitted “on rare occasions when required by the interests of justice”.1 The test for grant of leave to cross-examine has not altered since it was stated by the Court of Appeal to be confined to circumstances where cross-examination is “clearly necessary to enable the case to be disposed of
fairly”.2

1 Geary v Psychologists Board (2009) 19 PRNZ 415 (SC) at [1].
2 Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd[1997] 1 NZLR 650 (CA), 656. See also Geary v Psychologists Board (SC) above n 1; Geary v Psychologists Board (2009) 19 PRNZ 409 (CA); and Commerce Commission v Powerco Limited CA123/06, 9

[5] It is necessary, therefore, to consider the grounds for the review sought…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Siemer v Official Assignee

Details

AGLC: Siemer v Official Assignee [2013] NZHC 112
Case: [2013] NZHC 112
Decision Date: 8 February 2013

CaseChat Overview and Summary

Siemer v Official Assignee [2013] NZHC 112 involved a bankrupt, Mr Siemer, who sought judicial review of the Official Assignee's decision not to pursue a legal claim against an Auckland Queen’s Counsel, Mr Fardell, for alleged breaches of duty related to the receivership of a company, Paragon Oil Systems Limited, in which Mr Siemer and his wife were shareholders. Mr Siemer argued that the Official Assignee's decision breached natural justice and his rights under the New Zealand Bill of Rights Act 1990, failed to consider relevant factors, was based on irrelevant considerations, was procedurally improper, and was made in bad faith. The Official Assignee, through Mr Viljoen, a Deputy Assignee, provided affidavits explaining the decision, citing weak claims, lapsed settlement offers, and significant costs. Mr Siemer sought leave to cross-examine Mr Viljoen, arguing that cross-examination was necessary for a fair hearing. The court considered the grounds for review and whether cross-examination was required by the interests of justice. The court found that the additional evidence provided by Mr Viljoen, including a meeting transcript and legal opinion, was sufficient for the court to review the decision without cross-examination. The application for leave to cross-examine was dismissed, and the first respondent was prima facie entitled to costs.

Orders