Official Assignee v Lewtyn Michael Scott Hc Ham

• Jurisdiction: New Zealand
• Judge: Allan J
• Judgment Date: 03 November 2011
• Court: High Court
• Docket Number: CIV 2011-470-842
• Date: 03 November 2011

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRYCIV

CIV 2011-470-842

BETWEEN

The Official Assignee

and

Lewtyn Michael Scott

Appearances:

J N Foster (on 20 October) and P V Cornege (on 25 and 28 October) for Official Assignee

M D Talbot for Mr Scott on 25 October (granted leave to withdraw)

Mr Scott in person on 20, 25 and 28 October

JUDGMENT OF Allan J

Introduction

1 Mr Scott, a bankrupt, was summoned for examination by the Official Assignee (the Assignee) at Hamilton. After one agreed adjournment, Mr Scott failed to appear for examination on two successive occasions. The Official Assignee applied to this court for the issue of a warrant to arrest Mr Scott. 1 Having been

arrested, Mr Scott was brought before the court on 20 October. In successive hearings on 20, 25 and 28 October, he claimed that the summons issued to him by the Assignee was a nullity for procedural reasons, and that his right to legal advice was not being observed.

2 This judgment deals with the following issues namely whether:

• (a) the summons to attend for examination served on Mr Scott is so fundamentally flawed as to be ineffective;

• (b) the summons sufficiently advised him of his rights pursuant to s 23 of the New Zealand Bill of Rights Act 1990 (NZBORA), and in particular his right to consult and instruct a lawyer without delay (and more specifically his right to obtain free legal advice or legal aid);

• (c) he is entitled to free legal representation in respect of hearings conducted in this court, arising out of the issue of the Assignee's summons for examination.

Preliminary matters

3 Mr Scott was adjudicated bankrupt on 22 July 2011. He was summoned to appear for examination by the Assignee at Hamilton on 22 August 2011. He did not attend. The examination was adjourned to 24 August 2011; he did not attend then either.

4 There was a further adjournment to 2 September 2011, Mr Scott being advised that an application for a warrant to arrest would be made if he did not attend the examination on that date. But he did not attend then either.

5 Mr Scott's explanation to the Assignee was that he had not attended because he wished to take legal advice, and that he had applied for legal aid. The Assignee's position was that Mr Scott was entitled to legal advice, 2 and to make an application for legal aid, which would need to be determined prior to the examination, provided that the application was made and advanced in a timely manner.

6 The Assignee entertained some doubt as to whether Mr Scott was in a position to qualify for legal aid, being aware that Mr Scott had received a sum of about $470,000 from a deceased estate in December 2010, and believing that a significant portion of that sum remained unaccounted for. Moreover, inquiries having been made, the Assignee ascertained from the Department of Justice that there had been no application for legal aid by Mr Scott in respect of the examination. The Assignee decided to apply for a warrant, which was granted by Peters J on 14 October 2011, without notice to Mr Scott.

7 Following his arrest, he was brought before me on 20 October 2011. I issued a minute recording what transpired on that day. The minute notes that:

• (a) Mr Scott informed the court that he consulted Mr Talbot of counsel, and that Mr Talbot was already acting for him in respect of certain matters, including those arising out of his arrest and the forthcoming examination;

• (b) he also advised the court that Mr Talbot had lodged an application for legal aid in respect of matters including the examination application (apparently only on 19 October), and that he expected Mr Talbot to be in court on 20 October, he having spoken to him the previous day;

• (c) Mr Talbot did not appear on 20 October.

• (d) Ms Foster for the Assignee advised the court that she had spoken to Mr Talbot herself. He was on leave. He gave no indication to her that he intended to appear on Mr Scott's behalf on 20 October;

• (e) the Assignee's application for examination would be adjourned for hearing in this court on Tuesday 25 October 2011 at 10 am, and that Mr Scott would be released on bail on terms set out in the minute;

• (f) it would be highly desirable for Mr Talbot to be in court on 25 October;

• (g) Mr Scott considered that he had been put in an impossible position, in that he had been given only a very short time to prepare for the hearing, and was currently without legal assistance. He argued that under the NZBORA he was entitled to legal advice before being required to answer questions on oath. As to that, I pointed out to Mr Scott that he did have access to legal advice, in that he had consulted Mr Talbot on the matter. The complete answer to his complaint about insufficient preparation time was that he was originally to be examined in mid-August. Accordingly, he had had two months within which to prepare for an examination hearing.

8 On 25 October, both Mr Talbot and Mr Scott appeared. Mr Talbot advised the court that he did have instructions from Mr Scott, but only in respect of appeals against the order of adjudication and the judgment on which the adjudication was based, and an application for a stay of the order. He had applied for legal aid on those matters on behalf of Mr Scott about ten days earlier. Mr Talbot had also provided advice to Mr Scott while he was in custody, and had endeavoured to arrange for him to see a lawyer in Rotorua while he was in custody. Mr Scott had advised Mr Talbot only very recently of the fixture for 25 October, and he attended as a matter of courtesy. He had no instructions to appear for Mr Scott on the examination application, or to argue any issues arising out of Mr Scott's complaint that he lacked legal advice in this court. Mr Talbot's indication was that if legal aid was not available for the proposed examination and related appearances in this court,he may not be able to accept instructions from Mr Scott. As yet, he did not regard himself as acting for Mr Scott in respect of the examination or any other issues attendant upon it.

9 At that point, Mr Talbot sought leave to withdraw from the hearing. I granted leave, he having an urgent commitment in another court.

10 Mr Scott then orally advanced several arguments which he claimed stood in the way of the Assignee's right to require an examination. He claimed that an endorsement on the summons inaccurately described his right to legal advice in respect of the examination and that the summons was null and void. He contended that he had an absolute right to free legal advice and assistance in respect of the examination and all appearances in this court, and that until he got both the court ought not to proceed further. He again complained about the lack of time available to him within which to prepare an argument, either in respect of the present hearings or for the examination itself.

11 Mr Scott specifically asked me to record in this judgment, as I do, his complaint about the unfairness of the timetable directions given by the court. He advised the court that, contrary to Mr Talbot's advice earlier in the day, the legal application submitted to the legal aid authorities did cover the examination as well as other proceedings related to the adjudication and to the underlying judgment upon which the adjudication was based. Regrettably he did not raise the point while Mr Talbot was in court.

12 I directed that the examination application be adjourned until 11.45 am on Friday 28 October 2011. That hearing was not scheduled for the examination itself. Rather, I intended that the court would hear argument from counsel for the Assignee and for Mr Scott as to the legal and procedural impediments which Mr Scott had identified. I asked Mr Cornegé to prepare a written synopsis of argument and e-mail it to Mr Scott, so that the latter would be on notice of the detail of the Assignee's argument.

13 Again, Mr Scott was released on bail.

14 When the matter was called at 11.45 am on Friday 28 October 2011, Mr Scott appeared in person. He said that Mr Talbot was not available and that he had not been able to speak to him since 25 October. He claimed that the hearing ought not to proceed and that there should be a further adjournment. He rested his adjournment application on several grounds. The first was his advice that he had filed, or was about to file, a number of appeals to the Court of Appeal. As I understood it, these appeals were against:

• (a) the underlying judgment which gave rise to the order for adjudication;

• (b) the order for adjudication itself;

• (c) the decision of Peters J to issue the warrant;

• (d) two decisions of mine, said to have been given on 20 October 2011.

15 It is appropriate to amplify somewhat the circumstances in which Mr Scott says that he is entitled to appeal against the directions I gave on 20 October.

16 He complains first that I declined to permit him to see a duty solicitor on that date. He is correct on that point. I declined to do so because there was no duty solicitor available in the High Court. The role of duty solicitors is to facilitate the conduct of business in police arrest courts, and to assist clients appearing in that court. I consider that Mr Scott did not require duty solicitor assistance because, as I already advised him, I intended to release him on bail on 20 October, there being no intention to make any substantive orders on that day or to continue his remand in custody.

17 The other ground of intended appeal was my alleged refusal to make an order directing the Assignee to supply to Mr Scott documents related to the summons and to the arrest.

18 While it is correct that Mr Scott expressed a desire to have copies of those documents, I made no order...