Bryers v Official Assignee [2014] NZHC 2145 (4 September 2014)

Last Updated: 5 September 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-404-3694 [2014] NZHC 2145

IN THE MATTER	Of the Insolvency Act 2006
IN THE MATTER OF	The bankruptcy of Mark Ronald Bryers
BETWEEN	MARK RONALD BRYERS Applicant
AND	OFFICIAL ASSIGNEE

Hearing:	4 September 2014
Appearances:	Mr Nicholls for bankrupt Mr Cornege for Official Assignee
Judgment:	4 September 2014

_{ORAL JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE}

BRYERS v OFFICIAL ASSIGNEE [2014] NZHC 2145 [4 September 2014]

[1] The bankrupt was adjudicated bankrupt at Auckland on 1 October 2009. He would, but for the filing of objection by the Official Assignee to his discharge from bankruptcy, have become eligible for an automatic discharge on 23 October 2012. The Official Assignee at Hamilton, who was the Assignee administering Mr Bryers estate has objected and it will therefore be necessary for there to be a public examination of the bankrupt and thereafter a decision made on the question of whether he ought to be discharged or not.

[2] Mr Bryers has a strong preference that he should not be required to attend at Court in person in November for his public examination. His counsel, Mr Nicholls, filed on his behalf an application that he be examined by video-link. The grounds that were put forward in the application were that ss 103 and 168 of the Evidence Act 2006 provide for the use of video link and that the grounds set out in those sections are met.

[3] Despite initially taking a neutral position on the application the Official Assignee now opposes the making of an order for examination to take place by video-link. The Assignee, Mr Currie, says that he has recently received confidential “informant material” about Mr Bryers conduct while bankrupt which is of concern to him and which he says has persuaded him that the examination should not be made by video-link. In his notice of opposition the Official Assignee seeks out the following detailed grounds:

a) There are important matters which need to be put to the bankrupt;

b) This will be done more effectively in person;

100. Public examinations are an important exercise, at which bankrupts should, absent good reasons, be present in person;

4. Given the cost of the bankrupt giving evidence via video link, it is clearly more convenient for him to appear in person;

e) There is no evidence to support the bankrupt’s contention that he will

suffer trauma or be intimidated if he appears in person;

f) In any event, negative publicity or attention is an inevitable consequence of the bankrupt’s business dealings, and does not mean he should not have to travel to New Zealand; and

g) The position of third parties who may wish to give evidence in support of the application (albeit that the official Assignee understood that the bankrupt did not intend to call other evidence) has no bearing on whether the bankrupt should appear in person.

[4] In addition to proposing himself to give evidence Mr Bryers has indicated that there are other persons in Australia who would give evidence on his behalf and that there are good reasons why they should give their evidence by video-link. The present application though is concerned with the question of whether Mr Bryers himself should be permitted to give evidence by video-link and it is that question that I will decide in this judgment.

[5] There is no doubt that the Court has jurisdiction to make the type of order sought. Mr Cornege, counsel for the Official Assignee did not contend otherwise. I will deal briefly with the various relevant circumstances in the course of this judgment. However the position is perhaps best summarised, at least in respect of s 103 of the Evidence Act, by a judgment of Stevens J in Deutsche Finance Ltd v Commissioner of Inland Revenue.¹ Section 103 deals with applications for witnesses within the jurisdiction to give evidence by alternative means at least in general terms although there is one circumstance involving witnesses outside New Zealand which

may be taken into account. The section is concerned with matters such as the witnesses fear of intimidation² and the trauma suffered by the witness.³ The last would seem to refer to trauma actually caused to a person as a victim who is also a

_{witness concerning the events that are before the Court.}

¹ _{Deutsche Finance Ltd v Commissioner of Inland Revenue (2007) 18 PRNZ 710.}

² _{Section 103(3)(d) Evidence Act 2006}

³ Section 103(3)(c) Evidence Act 2006

[6] As I have mentioned s 103 also applies in the case where a witness is absent or likely to be absent from New Zealand. Overall s 103(4) requires the Court to have regard to the fairness of the proceeding⁴ and “the need to minimise the stress on the witness”⁵ and, finally, any other factor that is relevant to the just determination of the proceeding.

[7] Section 168 of the Evidence Act deals with witnesses giving evidence from Australia and the Court may receive evidence by video-link under that section. The Court is not to give such a direction unless it is satisfied that the examination etc can more conveniently be given or made from Australia and it is appropriate to give the

direction⁶

[8] As I have mentioned the principles relating to s 103 were discussed in Deutsche Finance Ltd in the course of which judgment Stevens J made the following remarks:

[24] In deciding the application in respect of each witness, the first inquiry is whether one of the grounds in s 103(3) has been made out. Counsel for the plaintiffs accept that, once any such ground is made out, the Court will carry out a balancing exercise whereby the ground(s) established and other applicable factors from s 103(3) will be considered, bearing in mind the matters to which regard must be had as set out in s 103(4)(a) to (c). Indeed, counsel for the defendant did not really challenge this approach.

[25] Such balancing will involve consideration of any expense, stress, and inconvenience in bringing the witness to New Zealand in the present day and age where alternative modes of giving evidence are readily and reliably available, the importance of the evidence the witness is proposing to give, the desirability of hearings being in open Court with the witness being present, and the broader concerns of natural justice and fairness for all parties. If the conclusion is that it is not necessary to bring one or both witnesses to New Zealand, then a further question is whether the Court can be satisfied that appropriate practical arrangements can be made to, amongst other things, help ensure veracity and that there are legal sanctions in place for perjury. A finding that such safeguards cannot reliably be put in place may ultimately override any conclusion under the balancing process and result in it being necessary for the witness to come to New Zealand to give evidence.

[26] While meeting the statutory grounds and fairness to the parties properly remain central concerns of the Court, I consider that it is still

⁴ _{Subsection 4(a)(i).}

⁵ _{Subsection 4(b)(i).}

⁶ Section 168(3) Evidence Act 2006

appropriate to be cognisant of the standard set at common law. In Ra Ora, evidence that went to the ‘very heart’ of the proceedings and as such drew attention to its quality was not sufficient to mandate that evidence be given in person. Fisher J concluded t 356 that video-link evidence “provides an adequate opportunity to assess the nuances of the giving of the evidence and in particular credibility” (see also Ithaca at [23]). Such an approach is implicitly recognised in the Act by virtue of the fact that s 105(1)(a)(ii) specifically provides that one of the alternative ways of giving evidence can be ‘from an appropriate place outside the courtroom, either in New Zealand or elsewhere”

[9] I accept that the statements of principle set out in the paragraphs just mentioned represents a correct statement of the law and I respectfully intend to follow it.

[10] I note in passing the reference by Stevens J to the desirability of hearings being given in open Court with the witness being present and the broader concerns of natural justice and fairness for all parties. There is also reference in the passages to what Fisher J described as the “nuances of the giving of evidence and in particular credibility”.

[11] Against that brief background of the principles I will now turn to the factual matters that are in contention in this application. Mr Bryers says that there are several factors which are grouped together under the heading “trauma suffered by the witness” in his affidavit which should persuade the Court to adopt a video-link. I am not sure that the reference to “trauma suffered by the witness” is exactly apt but I do accept that it must be relevant in a general way to have regard to any difficulties that coming to the Court to give evidence would pose in the case of a particular witness. Mr Bryers says that one of the issues that would concern him is the “negative publicity” that would accompany his returning to New Zealand which would potentially turn the matter into a “media spectacle and would likely inhibit my ability to properly deal with the examination”.

[12] Mr Bryers has explained elsewhere that he has lived out of New Zealand in Australia since 2006 or 2007 approximately and hence the reason for his not returning to New Zealand.

[13] He further deposes that a need to come back to New Zealand would cause harm to his family and negatively impact upon his extended families “financial well being” and refers to the adverse consequences to a member of his family that have already occurred as a result of his connection to negative publicity about Mr Bryers relating to the bankruptcy. Generally he says that those who are close to him have concerns about what would happen if he came back to New Zealand and that causes him “great anxiety”. He says that in the past when he has been back in New Zealand he was subjected to unfavourable and defamatory media coverage and that lead to him being subjected to “considerable harassment” by members of the public outside the Auckland courts and physical threats being made against him and his family on the internet. He is fearful of the response of the public and the “intimidation and harassment that I would be subject to” if he was required to return to New Zealand.

[14] While it is not mentioned in his affidavit Mr Bryers says that it would be much simpler to proceed by way of video-link and that the expenses which are estimated to be approximately $24,000, can be covered by arrangements, with I understand, his employer.

[15] He says he is presently employed by an Australian company, Forsite Marketing Pty Limited, and that because of his work history in Australia it is mainly Australians nationals who can attest to his work history since 2006/2007. He says he has not had any connection with New Zealand for about seven years and there is therefore “surely very limited New Zealand public interest in my examination”.

[16] The contents of the next part of his affidavit are explained by the heading which is:

Public interest in “Bluechip” failure is not going to be satisfied by my public examination.

[17] In this part of his affidavit Mr Bryers essentially appears to distance himself from operations of the New Zealand part of the Bluechip companies which resulted in major loss being suffered by New Zealand investors. He points out that his bankruptcy is brought about by the fact that he was required to provide a guarantee to a bank for liabilities of the Bluechip company or companies.

[18] The Official Assignee, Mr Currie in his affidavit as I have mentioned explains that his opposition to the video-link proposal has been brought about by receiving information concerning Mr Bryers alleged conduct while a bankrupt. This information was not spelt out in any further detail and is in any event irrelevant to the decision that I have to make today. It is obviously the entitlement of the Official Assignee to oppose the application. Essentially the position that the Official Assignee takes is that there has to be doubt why it is necessary for a video-link and certainly it would not save any money preceding by that means. The key part of the affidavit in my view is paragraph 10 which provides:

10. The public examination process is an important one, and affords those interested in (and affected by) Mr Bryers’ conduct the opportunity to be present to witness his examination. In a sense, they are able to face him. The disconnect created by Mr Bryers’ attending via video link means that this important public function may not be properly served.

[19] The analysis that is required concerning the competing contentions is now set out. The process is of course as, Stevens J stated, a matter of striking a balance. On the one hand Mr Bryers says that the price of his coming to the Court for his examination in person is too high and he should not be required to subject himself to the process. That essentially raises questions of fairness. He says that it is not just the adverse affect on him per se which is important and that the consequences go further and will impact his ability to put forward his case at the examination if he was to come to Court personally. His concerns are obviously with the fact that he is likely to face considerable media scrutiny and also hostility from members of the public and in particular that part of it which was affected by the collapse of the Bluechip Group. The concern of the Court is to ensure that the hearing is conducted in an open and fair way. I accept that the requirements of fairness include fairness as judged from the perspective of the bankrupt.

[20] In the first place I am confident that the Court will be able to ensure that the hearing is conducted in an orderly way and that each side will receive a fair hearing. I do not consider that there is any realistic hazard of Mr Bryers being assaulted or intimidated at the Court. Persons who are at the Court will be required to comply with the law and it is unlikely that Mr Bryers will be unsafe or that he will be subjected to unacceptable harassment or threats.

[21] Then there is the wider adverse consequences which he says he will face naturally where there is likely to be intensive media interest if he is required to come back to New Zealand. That as much as anything arises from Mr Bryers elevated public profile and the extent of the financial damage which was caused by the companies that he was involved in. It is not unnatural that there will be media interest for similar reasons. It is possible that a number of members of the public would want to attend the hearing. While those sorts of factors may make Mr Bryers uncomfortable, in my view, it is the price that has to be paid for the hearing taking place in public under an open system of justice. In my view there is nothing that the Court can or should do to prevent public and media comment on Mr Bryers. He says that he will be born down by such matters and will not be able to give a good account of himself in Court. As Mr Cornege says there is no evidence that he is suffering from any psychological trauma or that there is a realistic expectation that he will but at a higher level, it has to be borne in mind that Mr Bryers was obviously an individual who is use to operating in public eye. He was the CEO of a very large business that operated in New Zealand and Australia. I do not consider that it can be said that he suffers from a lack of resilience which will enable him to manage himself when he comes to the Court if an order is made to that effect.

[22] For the reasons that I have given I do not consider that an order ought to be made permitting Mr Bryers to be examined by video-link. I consider that the matters that the Official Assignee has raised in his affidavit about the importance of Mr Bryers being present at the public examination personally are entitled to wait. I do not consider therefore that it would be on balance a correct exercise of the statutory discretion to essentially excuse him from attending the Court and to appear

_{by video-link. I therefore decline to make the orders that he seeks.}

J.P. Doogue

Associate Judge