Solicitor General v Swann HC Dunedin CIV 2009-412-213

[2010] NZHC 1745

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2009-412-000213

IN THE MATTER OF     an application pursuant to the Proceeds of

Crime Act 1991

BETWEEN  THE SOLICITOR GENERAL OF NEW ZEALAND

Applicant

ANDMICHAEL ANDREW SWANN First Respondent

ANDOTAGO DISTRICT HEALTH BOARD Second Respondent

ANDANNA LAURA DEVEREUX Third Respondent

ANDPETER BRUCE IBBOTSON AND CHECKETTS MCKAY TRUSTEES LIMITED AS TRUSTEES OF THE FERNTREE LODGE FAMILY TRUST Fourth Respondent

ANDORGANIC WHITE MEATS LIMITED Fifth Respondent

ANDPETER BRUCE IBBOTSON, IAN GRANT FYFE AND ANNA LAURA DEVEREUX AS TRUSTEES OF THE DEVEREUX FAMILY TRUST

Sixth Respondent

ANDANNA LAURA DEVEREUX, PETER BRUCE IBBOTSON AND CHECKETTS MCKAY TRUSTEES LIMITED AS TRUSTEES OF THE ROWAN COURT FAMILY TRUST

Seventh Respondent

ANDLIBERTY PUBLISHING LIMITED Eighth Respondent

THE SOLICITOR GENERAL OF NEW ZEALAND V MICHAEL ANDREW SWANN AND ORS HC DUN CIV-2009-412-000213  27 September 2010

ANDFRESH FREE RANGE CHICKENS LIMITED

Ninth Respondent

ANDBRUCE MCILROY LIMITED Tenth Respondent

ANDLYNDA AND GRAEME KING, NORTH END PANELBEATERS

Eleventh Respondent

ANDDUANE GEARING Twelfth Respondent

ANDDG ENGINEERING LIMITED Thirteenth Respondent

ANDPETER BRUCE IBBOTSON Fourteenth Respondent

ANDCAREYS BAY MARINE LIMITED Fifteenth Respondent

Counsel:         R P Bates and M J Grills for Applicant

L A Andersen for Ms Devereux
A G W Logan for Mr Ibbotson

G J de Courcy, Amicus Curiae appointed to represent the discretionary beneficiaries of the family trusts

Recall

Judgment:      27 September 2010

JUDGMENT OF PANCKHURST J (Recall of aspects of substantive judgment)

Introduction

[1]      On 1 September 2010 I delivered the substantive judgment in relation to the

Solicitor   General’s   wide-ranging   application   for   confiscation   orders.      On

15 September 2010 Mrs Grills filed a memorandum in which she drew attention to five points of detail arising from my earlier decision.   I propose to treat the memorandum as an application for recall pursuant to r11.9 with reference to the five matters of detail raised by counsel.

[2]      I note that the substantive decision reserved leave for counsel to revert to me in relation to any issue which had been overlooked in the course of preparation of the main judgment.   On account of the number of items of property covered by the Solicitor General’s application, there was scope for oversight or inconsistency to arise.  Regrettably, this concern has materialised.

The required approach to recall

[3]      Rule 11.9 provides that a Judge may recall a judgment at any time before a formal record of it is drawn up and sealed.  Hence, the discretion conferred by the rule is unfettered.

[4]      Nonetheless  the  circumstances  in  which  a  judgment  may  be  recalled  is settled.  In Horowhenua County v Nash (No. 2),[1] Wild CJ identified three contexts in which the discretion to recall may be appropriately exercised.  It is the third of these which  is  presently relevant,  namely  “where  for  some  other  very special  reason justice requires that the judgment be recalled”.  This residual context clearly extends to situations such as the present.   As will become evident shortly, I have been requested by counsel to clarify matters of detail occasioned by omission or inconsistency between different paragraphs of the judgment.  The issues raised are

the very kind which are apt to be dealt with in a recall context, the more so where leave has been reserved to cover this eventuality.

Item 35: the “Arataki” tug

[1] Horowhenua County v Nash (No. 2) [1968] NZLR 632 (SC) at 633.

[5]      The items of property covered by the Solicitor General’s application  are individually referred to in a schedule to the judgment headed “Property the Subject of  Confiscation  Application”.    The  “Arataki”  tug  is  item  35  in  the  schedule. Counsel’s memorandum notes that the “Arataki” is referred to in [68] as forfeited, while at [85] the item is listed as available to meet the pecuniary penalty order made against Mr Swann.  Hence, there is duplication and one reference must be in error.

[6]      It is [85] which contains the error.  I recall the reference to item 35 in that paragraph, so that upon the drawing up and sealing of an order item 35 may be listed as forfeited, rather than as available to meet the pecuniary penalty order.

Item 46: $70,046.38, being the proceeds of sale from 17 Rowan Court

[7]      This sum of money is referred to twice in [85] as being “in the ownership of Mr Swann” and therefore available to meet the pecuniary penalty order without further  direction;  and  also  as  an  item  made  the  subject  of  an  s29(3)  direction enabling the item of property to be applied to satisfaction of the penalty order.  These two references to item 46 in [85] cannot stand.

[8] The correct reference is that whereby item 46 is declared pursuant to s29(3) to be property available to satisfy the penalty order. Accordingly, I recall the prior reference to item 46 in [85].

Item “49”: listed in [85]

[9] The various items listed in this paragraph as owned by Mr Swann and available to meet the pecuniary order includes item “49”, whereas Mrs Grills has pointed out that there is not an item 49 in the schedule. An earlier iteration of the schedule included an item 49 and obviously [85] was not amended when the schedule was recast. I recall the reference to item “49” in [85].

Items 30, 43 and 47: a trailer, vessel parts and a sum of $5,500

[10] Mrs Grills has pointed out that these items are not referred to in the judgment as either forfeited, or available to satisfy the pecuniary penalty order. This is an omission. The items must fall in one category or the other. They should have been listed in [85] as items available in satisfaction of the pecuniary penalty order. I recall the judgment and include the three items in the list at the commencement of [85].

Item 45: five containers of vehicle parts

[11]     Mrs Grills pointed out in her memorandum that although the schedule refers to five containers and in [85] all five are listed as available to meet the pecuniary penalty order, two of the containers are earlier (at [35]) vested in Mr Ibbotson. Again, counsel is correct in that the two containers vested in Mr Ibbotson cannot be available to meet the penalty order.  I recall and amend item 45 in the schedule to

refer to three containers (instead of five).

Solicitors:

Wilkinson Adams Lawyers, Dunedin for Applicant

Len Andersen Barrister, Dunedin for Ms Devereux

Ross Dowling Marquet Griffin, Dunedin for Mr Ibbotson
Downie Stewart, Dunedin for discretionary beneficiaries

(Mr G J de Courcy, Amicus Curiae appointed to represent the discretionary beneficiaries

of the family trusts)