Sisson v Commissioner of Inland Revenue

[2017] NZHC 148

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-000637 [2017] NZHC 148

BETWEEN

THERESE ANNE SISSON

Plaintiff

AND

COMMISSIONER OF INLAND REVENUE

Defendant

CIV-2015-409-000043

BETWEEN  COMMISSIONER OF INLAND REVENUE

Plaintiff

ANDCHESTERFIELDS PRESCHOOLS LIMITED (IN LIQUIDATION)

First Defendant

THERESE ANNE SISSON Second Defendant

CIV-2016-409-000040

BETWEEN  CHESTERFIELDS PRESCHOOLS LIMITED

Plaintiff

ANDTHERESE ANN SISSON Defendant

THE COMMISSIONER OF INLAND REVENUE

Intervener

CIV-2016-409-0000185

BETWEEN  THERESE ANNE SISSON Applicant

ANDTHE OFFICIAL ASSIGNEE (RE ESTATE OF DAVID JOHN HAMPTON)

SISSON v COMMISSIONER OF INLAND REVENUE [2017] NZHC 148 [13 February 2017]

First Respondent

THE COMMISSIONER OF INLAND REVENUE

Second Respondent

CIV-2016-409-000453

BETWEEN  THERESE ANNE SISSON Applicant

ANDIAG NEW ZEALAND LIMITED Respondent

Hearing:	13 February 2017
Counsel:	T A Sisson Plaintiff/Defendant S Kinsler, P J Shamy and S L Russell for Commissioner of Inland Revenue B M Russell and K M Kendrick for Chesterfields Preschools Limited (In Liquidation) G Slevin for Official Assignee M Mitchell for IAG
Judgment:	13 February 2017

ORAL JUDGMENT OF GENDALL J

[1]      At the commencement of the hearing of these proceedings Ms Sisson, the plaintiff/applicant in certain of these proceedings and defendant/respondent in others, made application to the Court for assistance by way of a McKenzie Friend in these matters.   She sought that Mr Hampton assist her in this hearing but strictly as a McKenzie Friend.  The application was opposed by the liquidator of Chesterfields Preschools Limited (In Liquidation), by the Commissioner of Inland Revenue, and by  the  Official  Assignee.    The  application  was  not  opposed  on  behalf  of  the defendant IAG New Zealand Limited in proceeding -453.

[2]      The basis of the opposition to the application, as I understand it, is that

Mr Hampton is to be called as a witness at least in proceeding -185, but also it seems

possibly in proceeding end -040.  As a result, it was said it would be inappropriate for him to be a McKenzie Friend to Ms Sisson in this matter, but this is particularly the case, it was said, because as a witness he was likely to be required to be excluded from Court prior to giving evidence in this matter.

[3]      In this regard I was referred to a decision R v Mitchell1 which confirmed that in cases where a proposed McKenzie Friend was to be called as a witness in a proceeding  it  was  inappropriate  for  that  person  to  be  permitted  to  adopt  that particular role.

[4]      Notwithstanding these matters, Ms Sisson before me responded that this is a complex trial involving what she described as “a plethora of documents”.  She noted that so far as the other parties in this proceeding is concerned, most had at least two, or in one case even three counsel, representing the interests of a particular litigant. As a self represented plaintiff and defendant in these proceedings Ms Sisson said that it was  imperative that  she have  some  assistance in  this  matter which  could  be provided by Mr Hampton who clearly had considerable background knowledge of matters which were to be before the Court.

[5]      This issue creates some difficulty, needless to say.   Whilst in the normal course of events, as the decision in R v Mitchell confirms, it would be inappropriate for a potential witness to be a McKenzie Friend for a litigant in a proceeding, in this case, in my view, certain special circumstances do arise. These relate to the immense complexity of the documentation which has been filed in these various proceedings, whether that may be necessary or not, and the fact that through consolidation over the next three to five days, a range of different although related matters are before the Court.

[6]      In all the circumstances here and given the overall interests of justice I am satisfied that Ms Sisson should be assisted in this case by a McKenzie Friend and that it is in order for this to be Mr Hampton.  I wish to make it clear that this is in no way to create a precedent as to similar matters, given particularly that Mr Hampton is likely to be called as a witness here.  Issues have been raised by other counsel that

Mr Hampton’s credibility as a witness may be at issue, but it seems to me that is a matter which the Court can deal with if indeed it does arise.  The greater interest in this case is that Ms Sisson is properly assisted as a self represented litigant in all matters which are before the Court.  I rule therefore that Mr Hampton may act as a McKenzie Friend to Ms Sisson in this matter, but purely to be involved in a way to sit beside her, to take notes, to quietly make suggestions to her and to give advice, to propose questions and submissions to Ms Sisson who may put the same, and not in any way to address the Court by way of making submissions or himself asking questions.   These are the permitted functions of a McKenzie Friend as set out by

His Honour Hardie Boys J in Mihaka v Police.2

...................................................

Gendall J

Solicitors:

Lane Neave, Christchurch

Phillip Shamy, Christchurch

Meredith Connell, Christchurch

Copy to Ms Sisson