IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

[2017] NZHC 606
BETWEEN DAVID IAN HENDERSON
Plaintiff
AND ATTORNEY-GENERAL
Defendant
Hearing: 4, 5, 6 and 7 July 2016

Memoranda 14 July 2016, 1 September 2016,
14 September 2016, 26 September 2016

 

Minute 20 December 2016
Appearances: Moss and Child for the Plaintiff
Kinsler and Shaw for the Defendant
Judgment: 30 March 2017
JUDGMENT OF HINTON 

 

his judgment was delivered by me on 30 March 20] 7 at 3.30 pm
pursuant to Rule 11.5 ofthe High Court Rules

Registrar/Deputy Registrar

Counsel/Solicitors:
Jai Moss, Barrister, Christchurch
Meredith Connell, Wellington

DAVID IAN HENDERSON ATTORNEY-GENERAL [2017] NZHC 606 [30 March 2017]

 

 This case concerns the powers of the Of?cial Assignee and the right to

privacy, and where the twain shall meet.

Put more drily, the issue is whether a requirement by the Of?cialAssignee
under 171 of the Insolvency Act 2006 (the Act) for production of documents on the
laptop of Mr Henderson, and subsequent review of some of those documents,
breached Mr Henderson?s rights under 21 of the New Zealand Bill of Rights Act
1990 (BORA).

The questions to be answered are:

Was there a ?search or seizure? for the purposes of 21 of the 

If so, was any search or seizure ?unreasonable? (which imports

whether it was unlawful)?

If unreasonable, what is an effective and appropriate remedy in the

circumstances?

Facts

General background

David Henderson was adjudicated bankrupt on 29 November 2010. He had
previously been bankrupted in August 1996, and was automatically discharged from
that bankruptcy in August 1999.

Leading up to his second adjudication, Mr Henderson had been (at least) the
director of numerous companies involving property development and hospitality
businesses. Mr Henderson said it may well have been more than 100. There was a

question over how many were ?live?.

After several requests by the Of?cial Assignee, Mr Henderson had roughly
?lled out a statement of affairs, stating that he owned no assets and that there were

two trusts of which he was a discretionary bene?ciary. The form required him to say

 

what property was owned by the trusts. That was left blank. Mr Henderson told the

Of?cial Assignee to refer all questions to his lawyer.

Mr Henderson?s de?facto partner of over 16 years, Kristina Buxton, was a
co?director and shareholder of some of the companies. She was also the director of

the corporate trustee for one of the trusts of which Mr Henderson was a bene?ciary.

The exact nature of the relationship between the companies, the trusts, and
Mr Henderson was unclear. There was (as at 2011) a potential wide-ranging inquiry
into the assets held on trust and the true nature and extent of Mr Henderson?s interest
in the trust assets or funds, including the nature of his business relationship with a

number of people.

In short, the bankruptcy was both complex and challenging.

[10] In the course of assisting Terry Marshall (a Deputy Of?cial Assignee), to
administer the bankruptcy, Grant Slevin (a solicitor working for the Insolvency and
Trustee Service) obtained personal trust account records from Mr Henderson?s
lawyer. His analysis of these led him to believe that in 2011 Mr Henderson may
have entered into voidable transactions involving funds received personally from
companies with which he was associated. Mr Henderson?s lawyer was unable to

supply documentation in relation to one of those transactions.

[1 Mr Slevin later became aware from an NBR article that Robelt Walker, then a
liquidator of six of the companies with which Mr Henderson was associated (but
later of more), was in possession of records that had been seized by Police from

business premises in central Christchurch.

[12] On 13 June 2011, Mr Slevin wrote to Mr Walker asking him to supply
information relating to a particular payment, any other payments to Mr Henderson

by his companies, or any company payments made to third parties on
Mr Henderson?s behalf.

 

[13] Mr Walker telephoned Mr Slevin and told him that he was in possession of a
computer belonging to Mr Henderson which contained a lot of information that

would be relevant to his enquiries.

[14] On 14 June 2011, Mr Slevin requested that Mr Walker provide a clone of the
computer?s hard drive ?pursuant to 171 of the Insolvency Act 2006?. Mr Walker
was unable to provide a clone. He suggested he could provide ?ash drives instead,
which Mr Slevin accepted. Mr Walker provided the ?ash drives shortly after 14 June
2011. The ?ash drives contained emails and some voice recordings. Mr Walker told
Mr Slevin that this constituted everything on the computer?s hard drive. Mr Slevin
arranged for a computer technician in his of?ce to install the emails and voice
recordings onto a password?protected laptop computer, to which no one but
Mr Slevin had access. The computer was placed in a cupboard beside Mr Slevin?s
desk.

[15] The emails and voice recordings were in a form that was not practically
searchable, so in mid-August 2011 Mr Slevin requested that Mr Walker?s employee
provide a fresh copy of the emails (not the voice recordings) in a format that could
be imported into an email programme and hence searched by key words. This was
provided shortly after 26 August 2011. At Mr Slevin?s request, the computer
technician deleted the emails and voice recordings originally provided and replaced

them with the searchable version of the emails.

[16] The emails were searchable via Microsoft Outlook. Mr Slevin began using
key word searches to identify correspondence relevant to particular companies,
particular transactions, or involving particular correspondents who appeared to be
Mr Henderson?s business associates. The exercise involved him looking at the
names of the parties to the emails, including to whom they were copied, and the
subject line. If an email appeared to be relevant, Mr Slevin would open it. If it was
something he thought should be followed up, he would drag the email across to a
folder on the desktop of the computer, creating different folders for different

transactions.

 

[17] In the course of locating relevant emails, Mr Slevin also viewed irrelevant
emails, including some of a personal nature. An example was correspondence
between Mr Henderson and another, in relation to what appeared to be a diet
programme. The other person is a well-known political ?gure. Mr Slevin said he

initially thought this correspondence could relate to a business venture.

[18] Mr Slevin did not create a distinct folder for emails he considered to be
irrelevant or personal. These he disregarded and they remained in the body of emails
where they were already located. The assessment of what was relevant to his
inquiries was necessarily ongoing. Mr Slevin could not necessarily rule out on an
initial subject line review that something was irrelevant and could be discarded. The
exercise was still not complete at date of hearing. Amongst other things, in the
public examination process then still pending, the Court could require the

Of?cial Assignee to report as to additional matters.

[19] Mr Slevin?s recollection was that he spent approximately 12 hours in total

reviewing the documents on his laptop.

[20] In the course of this exercise, Mr Slevin formed the view that Mr Henderson
had continued to manage the affairs of- the companies after adjudication; was using
an undisclosed American Express Card; and had been provided with a Bartercard
which he had not disclosed to the Official Assignee. These and other issues

remained at large.

[21] As a result of his investigation, on 31 October 2011 Mr Slevin forwarded the
flash drive with the searchable form of the emails to Mr Wolmarans, the
Investigations Manager of the Official Assignee?s National Enforcement Unit.
I accept that Mr Wolmarans was unable to search the emails. In the course of the
hearing, Mr Moss objected to this evidence as hearsay, Mr Wolmarans not being a
Witness in the case, but in closing he sensibly accepted Mr Wolmarans was unable to

read the documents off the ?ash drive.

[22] Mr Slevin gave evidence, which was not contradicted, and which I accept,

that he then copied relevant emails (only) onto a CD and sent that to Mr Wolmarans

 

instead of the ?ash drive. Mr Moss argued that in the absence of evidence from
Mr Wolmarans, I should infer that Mr Wolmarans looked at personal, irrelevant
material. I am satis?ed that the evidence of Mr Slevin that he only sent relevant

emails, is suf?cient.

[23] The failed forwarding of the ?ash drive and the successful forwarding of the
CD to Mr Wolmarans were apparently the only disseminations of the documents by

Mr Slevin.

Additional facts ier Walker is entitlement to the laptop is relevant

[24] Once he heard of the Police search leading to Mr Walker?s possession of the
laptop, Mr Henderson alleged it was unlawful. Mr Slevin ?rst became aware of this
allegation on 6 July 2011 (several weeks after he received the ?ash drive) as a result
of correspondence from Mr Walker?s employee. Mr Slevin considered whether the
allegation affected the lawfulness of his request under 171 of the Act. Following
consultation with two senior legal colleagues, he formed the view that it did not.
This was before Mr Slevin acquired the emails in a practically searchable form.
Mr Henderson also contends that he had informed Mr Slevin previously of his
concerns regarding the lawfulness of the Police search. Mr Slevin does not accept

that.

[25] On 12 September 2011, Mr Henderson emailed Mr Marshall (the Deputy
Of?cial Assignee), ?requiring? an immediate interview and saying that Mr Walker
had been offering his emails. to third parties. Mr Slevin says he has no record or
recollection of Mr Henderson having raised his concerns about the way Mr Walker
had obtained the emails priorto 12 September. It is common ground between
Mr Henderson and Mr Slevin that there was a meeting involving Mr Henderson,
Mr Slevin and Mr Marshall, at which Mr Henderson outlined his concerns as set out
in his email of 12 September. It appears this meeting occurred shortly after
Mr Henderson?s 12 September email. Neither Mr Slevin, nor Mr Marshall, made

any comment at the meeting regarding having the ?ash drive.

[26] On 16 January 2012, Mr Henderson telephoned Mr Slevin and asked him if
he had received the emails that had been obtained by Mr Walker. Mr Slevin

 

acknowledged that he had them. In subsequent correspondence, Mr Henderson
required an explanation and account of Mr Slevin?s actions, which Mr Slevin

provided to him on 19 January 2012.

[27] On 23 January 2012, the Police contacted Mr Walker asking for a copy of the
documents that Mr Walker had provided to Mr Slevin, to enable the Police to
respond to an OIA request from Mr Henderson. Mr Walker copied his reply to the
Police to Mr Slevin. Mr Slevin responded to both Mr Walker and the Police,
advising that Mr Henderson had requested a copy of the same information from the
Official Assignee. He said a decision had been made to decline that request until
investigations into Mr Henderson?s affairs had been completed, on the basis that

releasing the information would be prejudicial to the maintenance of insolvency law.

[28] On 1 February 2012, Detective Senior Sergeant Nigel Hughes asked
Mr Slevin whether he would release a copy of the documents to the Police.
Mr Slevin replied the same day advising that he would consider the request under the
Official Information Act, and asked whether there was some other legal basis on

which he should consider the request.

[29] On 2 May 2012, Detective Hughes repeated his request and requested a letter
explaining the circumstances under which Mr Slevin had obtained the information.
On 17 May 2012, Mr Slevin replied to Detective Hughes, declining to provide a
copy of the documents on the basis that he obtained the information law?illy. He

also described the steps taken to protect Mr Henderson?s privacy.

[30] On 31 August 2012, the Police National Legal Manager made a formal
request to the Of?cial Assignee for her assistance in having the documents provided
to the Police, and any copies held by the Insolvency and Trustee Services destroyed
or deleted. The Official Assignee complied with that request because she decided
that the public interest in cooperating with the Police outweighed the reasons to
withhold under the OIA. On that basis, Mr Slevin agreed to send the documents to

the Police and to arrange for deletion and destruction of any copies.

 

Relevant prior judgments in related litigation

[31] In a judgment dated 11 June 2013, Associate Judge Osborne made orders

authorising the Police to return the ?ash drives to Mr Walker.1

[32] In a further judgment dated 18 March 2014,2 Associate Judge Osborne made
directions under 225 of the Act that Mr Walker return the ?ash drives to the
Of?cial Assignee. The attached conditions were that documents which the
Of?cial Assignee accepted were purely personal were to be provided to
Mr Henderson in electronic form and then deleted. Documents the Of?cial Assignee
considered not to be purely personal, but that in the View of the Of?cial Assignee
Mr Henderson would consider purely personal, and documents the Of?cial Assignee
considered might reasonably attract privilege, were to be quarantined by the
Of?cial Assignee and not disclosed in the absence of further order of the Court. The
term ?quarantine? was de?ned as ?hold safe and inaccessible by any person other
than the Official Assignee, the Of?cial Assignee?s employees engaged in the conduct

of the estate of David Henderson, and the Of?cial Assignee?s legal advisers?.3

Memoranda post-hearing

[33] In memoranda ?led down to 26 September 2016, the plaintiff sought to
re-open the trial to raise fresh issues, which entailed further discovery, briefs, hearing
time and a likely delay of at least a year. On 20 December 2016, I declined that

informal application.

Was there a search or seizure for the purposes of 21 of the 

[34] In closing submissions, Mr Moss, counsel for Mr Henderson, summarised

three potential searches or seizures he had identi?ed, which he worded as follows:
Mr Slevin?s inquiries of Mr Walker on 13 June 2011.

Mr Slevin?s exercise of 171 on 14 June 2011.

 

Commissioner of Inland Revenue Property Ventures (in liq and in rec) [2013] NZHC 1368.
3 Re Havenlez'gh Global Services Ltd, ex parte Henderson [2014] NZHC 499.
At [138].

 

(0) Mr Slevin?s continued exercise of control over the private material,
(following notice of objections to third parties having that material

and/or notice that it might have been obtained unlawfully).

[35] With regard to the ?rst alleged search (13 June 2011), without much
opposition from Mr Moss I ruled that Mr Henderson could not pursue this point. It
was not pleaded in the third amended statement of claim, nor relied upon in opening.
The ?rst notice the Attorney?General had of this allegation was after Mr Kinsler?s
closing submissions. Mr Moss said this was his weakest point and a point he ?did

not really contest?. I agree it is a weak point.

[36] The relevant provision, 21 of the BORA, states:

Unreasonable search and seizure
Everyone has the right to be secure against unreasonable search or seizure,
whether of the person, property, or correspondence or otherwise.

[37] Neither party?s submission was particularly clear on the categorisation of

search or seizure, nor is the law.

[3 8] There is, surprisingly, no de?nition of ?search? or ?seizure? in the BORA.

In previous decisions, the words seem to be used almost interchangeably.

[3 9] Broadly speaking, a ?search? is an examination of a person or property, and

?seizure? is a taking of what is discovered.4

[40] Section 21 of the BORA is primarily directed towards preventing the
unreasonable invasion of personal freedom and privacy.5 The Court of Appeal in
Williams con?rmed tha ?a touchstone of 21 of the Bill of Rights is the
protection of reasonable expectations of privacy?.6 This reasonable expectation is
scalable, whereby the nature, place, and extent of the intrusion contribute to whether

it exists.7

 

4 Je?eries [1994] 1 NZLR 290 (CA) at 300 per Richardson J.

5 Hamed [2011] NZSC l01, [2012] 2 NZLR 305 at [10] per Elias CJ and [161] per
Blanchard J.

6 Williams [2007] NZCA 52, [2007] 3 NZLR 207, at 

7 Grayson and Taylor [?997] 1 NZLR 399 (CA) at 407; Williams, above 6, at [113].

 

[41] A reasonable expectation of privacy is relevant not only to whether a search
or seizure was unreasonable, but also as to whether a search or seizure has occurred
at all.8 Blanchard I stated in Hamed that the meaning of ?search? is informed
?rst by whether the complainant subjectively had an expectation of privacy, and
secondly by whether that expectation is one that society accepts as reasonable.9
Given privacy expectations underpin both search and seizure for the purposes of 21
of the BORA, I consider the observations from Hamed can safely be applied to both

?search? and ?seizure?.

[42] Section 171 of the Act provides as follows:

In addition to the power contained in section 165(1)(b), the Assignee may,
by notice in writing, require the bankrupt, the bankrupt?s spouse, or any
other person to deliver to the Assignee any document relating to the
bankrupt?s property, conduct, or dealings in that person?s possession or
under that person?s control.

[43] Whether the exercise of a requisition power like 3 171 constitutes a search
and seizure has not been concretely determined, but I would doubt it always follows.
Section 101 of the Act vests all property of the bankrupt in the OfficialAssignee,
which arguably includes the bankrupt?s documents, those relating to the bankrupt?s
property, conduct or dealings.10 Section 171 then gives direct authority to the
OfficialAssignee to require any person to deliver any document relating to the
bankrupt?s property, conduct or dealings. In that context, if a straightforward request
were being made, for example for a bankrupt?s ?nancial accounts or for their
correspondence with creditors, it is difficult to see how 21 would apply. There
would seem to be little or no expectation of privacy by the bankrupt individual
against such intrusion, nor would society consider any such expectation to be

reasonable in light of the extensive rights of the Of?cial Assignee under the Act.

[44] The 14 June 2011 emails fall into a different category. Mr Slevin requested

all of the data on a laptop computer. The scope of the contents was not known.

 

3 Hamed R, above r1 5, at [163] per Blanchard 

9 At [163] per Blanchard J.

Section 3 of the Act de?nes ?property? in the broadest of terms. See also, 3 150(3) of the Act,
which explicitly provides that under 150, ?relevant property? means any property of the
bankrupt or any document relating to the bankrupt?s property, conduct or dealings.

 

There would have been some reasonable expectation of privacy in some of the stored

data.

[45] I consider therefore that Mr Slevin?s exercise of 171 constituted a search

and seizure.

[46] Mr Slevin continued to seize the documents after his initial receipt, for as
long as he remained in possession of them.11 Also, when Mr Slevin started to open
?les that were on the ?ash drive, Mr Slevin ?searched? for the purposes of 21 of
the BORA.

Was there an unlawful search or seizure?

[47] The question under 21 is whether a search is ?unreasonable?. However, the
standard approach is to ?rst consider whether it was unlawful, because an unlawful

act will almost always be ?unreasonable? for purposes of 21.12

[48] Mr Moss says the 14 June 2011 notice was unlawful in two respects: ?rst,
because it did not meet the requirements of 171 and secondly, because the

documents were obtained from Mr Walker, who had them unlawfully.

Unlawful due to non-compliance with I 7] .7

[49] As to the defects in form, Mr Moss says:

The notice did not ask for documents relating to the bankrupt?s
?property, conduct or dealings?, which was fatal. It referred only to a

request ?under 171?.

A request under 171 can only be for provision of ?documents?. A

?document? is de?ned by 3 of the Act as including information

 

Blanchard in Alwen Industries Comptroller of Customs (1993) 1 HRNZ 574 (HC) at 586
de?ned ?seizure? for the purposes of 21 of the BORA as ?extending to the situation after the
person or thing is taken in custody and for as long as that state or situation continues.?

Hamed R, above 11 5, at [174] per Blanchard J.

 

stored by means of a computer, but not the computer itself or any

component part.

Even if a clone of a computer is ?documents?, a request for a clone
exceeds ?documents relating to the bankrupt?s property, conduct and
dealings?, being all that the Of?cial Assignee is entitled to under

171. Considerable emphasis was placed on this last aspect.

[50] As to the ?rst point, especially when writing to a liquidator, it is suf?cient to

refer to 171, which then imports the wording of that section.

[51] As to the second point, the physical computer was not sought, nor was any
physical component, such as the hard drive. Mr Slevin sought a replica of its
contents in the form of a clone (and then a ?ash drive containing the same equivalent
information when it transpired that the clone was not able to be made). In my view,
that is the same as, or equivalent to ?documents? and Mr Slevin?s request was

therefore not unlawful on this basis.

[52] As to the third point, I acknowledge Mr Kinsler?s submission that the Courts
have interpreted the language of 171 very broadly. The need to do so is highlighted

in a complex bankruptcy such as this.

[53] I note that in relation to predecessor legislation (the Bankruptcy Act 1908)
and in the context of an Assignee examination, Hosking in In re Hardy
(a bankrupt) Ex parte The O?icial Assignee said: 13

The powers conferred on the Assignee are conceived in the most
comprehensive terms entitling him to make the most searching
inquisition.

[54] I agree with Associate Judge Osborne,14 that an interpretation of ?conduct? in

171, which puts documents involving personal communications beyond the reach

 

I3

14 In re Hardy (a bankrupt) Ex parte The O?icial Assignee [1922] NZLR 108 (SC) at 118-119.

Re Havenleigh Global Services Ltd, ex parte Henderson, above 2, at This is the
18 March 2014 judgment to which I referred earlier. The application for directions for the return
of the ?ash drives was in the nature of a discovery application. It was opposed on a number of
grounds, including that the documents would encompass documents of a purely personal nature
and that it was oppressive and unfair.

 

of the Assignee, would cut across the very legislative purpose of enabling the
Assignee to make a fully-informed decision on the very matters which Parliament

has entrusted to her.

[55] I also agree that much of Mr Henderson?s apparently personal
communications would fall within the category of documents relating to ?property
conduct or dealings?,15 including for example, much of Mr Henderson?s
communications with his partner, Kristina Buxton, who is a director and shareholder
of companies previously associated with Mr Henderson. As Associate Judge
Osborne said, the correspondence between Mr Henderson and Ms Buxton is an
obvious point of information for the Assignee in determining whether and to what

extent Ms Buxton may have involved Mr Henderson in any business.

[56] However, the language of 171 is obviously not meant to cover all
documents of the bankrupt (nor all documents the bankrupt might have in his
possession, as for example in the case of documents stored on a laptop). If it were, it
would simply have said so. Mr Kinsler accepted the section must have some

boundaries.

[57] In my view, 5 171 covers all documents, whether of the bankrupt or others,
which are or could be relevant to the administration of the bankruptcy. The section

would not extend to personal documents that are clearly irrelevant to the bankruptcy.

[58] I should add that I do not take Associate Judge Osborne to differ in
Havenlez'gh. He effectively said so himself on an application to strike out this
proceeding.16 He said he made observations as to what the term ?conduct? may
encompass and that this was in the context of case management of particular
litigation before the Court. He also did not say that personal documents that were

irrelevant to the bankruptcy were covered by the language of 171.

[59] Although 101 of the Act vests all property of the bankrupt in the
Of?cial Assignee, and property has been de?ned broadly, I do not consider that

 

?5 Re Havenleigh Global Services Ltd, ex parte Henderson, above 11 2, at 

16 Henderson Slevin [2015] NZHC 366 at 

 

enables me to read 3 171 as encompassing all documents of the bankrupt, as
Mr Kinsler argued. In any event, 3 101 does not give a right to require a third party
to provide documents, and in this case the request was made of a third party. I
therefore need to come back to the language of 171, being the section under which

the request was made.

[60] I accept that the surrounding facts at the time the request was made may not
have led Mr Slevin to consider there were documents on the computer falling outside
the ambit of 171. There was nothing in particular to alert him to that. The
computer was in Mr Henderson?s of?ce, not his home. Mr Slevin?s ?le note of his
conversation with Mr Walker refers only to business matters, and the press releases

similarly did not refer to personal communications.

[61] I further note that identifying at the stage of the initial requisition, what
would fall within the scope of 171 would be very difficult, given many personal
communications could still fall into the very broad de?nition of ?documents relating
to property, conduct or dealings?. For that reason, requests under 171 are often

made in stages.

[62] However, unless the context is such that a request for the clone of a computer
(or equivalent) is synonymous with a request for documents relating to property,
conduct or dealings of a bankrupt (which would exclude documents that are personal
and irrelevant), it is an unlawful request. In this case it is accepted that there were
documents of a personal nature that were irrelevant to the bankruptcy, stored on the

computer.
[63] I therefore ?nd that the 171 request was unlawful.

[64] It follows from my ?nding that the request was unlawful, that the receipt or
seizure of the ?ash drives; Mr Slevin?s continuing control; and searches of personal,

irrelevant documents on the laptop would also be unlawful.

[65] The Of?cial Assignee needed to make the requisition either using the

language of the section, or listing categories of documents, as with her original

 

13 June request, or a combination of the two. If the Of?cial Assignee had wanted to
obtain the whole of the computer records, one way to achieve that would have been
to seek directions under 225 of the Act, as she subsequently did. There is also the
power to obtain a warrant under 150 of the Act. The Court can then set conditions,

if appropriate.

[66] I should add that had the request been within the scope of 171 and lawful,
and documents had been provided that were personal and irrelevant, I would not
consider that made the seizure of the?documents unlawful. An ability to inspect
documents to determine their relevance is a necessary aspect of a requisition power.
The Of?cial Assignee should not be responsible for the receipt and initial inspection
of documents that are, as a result of inspection, found to be outside the scope of
171. That is necessary to ensure the Of?cial Assignee?s power under 171 is not

unjusti?ably curtailed.

Unlawful because the documents were obtained from Mr Walker, who had the
documents unlawfully?

[67] For completeness, I go on to consider Mr Moss? second ground of
unlawfulness, namely that Mr Slevin?s obtaining the documents pursuant to the
email request of 14 June 2011 was unlawful because the documents were obtained

from Mr Walker, who had them unlawfully.

[68] I agree with Mr Kinsler that it would not be unlawful for the
Of?cial Assignee to require provision of documents from someone who had them
unlawfully. The power under 171 is extremely broad and expressly empowers
obtaining documents relating to the bankrupt, from any other person. It does not
refer to a person having to be in possession or control of the documents lawfully, and
I agree with the Attorney?General that it would be unworkable if the
Official Assignee were required to establish lawful possession before it could make a
171 requisition. The lawfulness of Mr Walker?s possession of the documents has

no bearing on the case before me.

[69] I note that Mr Moss put some emphasis on the fact that Mr Slevin continued

to exercise control following notice of objection by Mr Henderson. What Mr Moss

 

drew from that is not clear. In my View, the lawfulness of Mr Slevin?s continued
retention of the documents would not be contingent on anyone having alerted him to

their concerns. However, it is not necessary to make any ?nding on this point.

Was there an unreasonable search or seizure?

[70] As I said earlier, the standard approach in considering whether a search is
?unreasonable? is to first consider whether it was unlawful. An unlawful act will

almost always be unreasonable for purposes of 21.

[71] It is still necessary, either way, to go on to consider ?unreasonableness?,
because a lawful search can still be performed unreasonably for the purposes of 21
of the and although much less frequent, an unlawful search or seizure

might still be not unreasonable.13

[72] I have already found that the search and seizure were unlawful. That acutely
limits the argument against unreasonableness. Unless the breaches are of a technical
or minor nature, it will follow they are unreasonable.19 An example of an unlawful
but not unreasonable breach was when a police officer failed to ensure a required
venous blood sample was obtained, rather than the required arterial blood sample.20

I cannot say that the breaches here are technical or minor.

[73] Blanchard said that an unlawful breach may perhaps also not be
unreasonable if the breaching party had a reasonable (although erroneous) belief they

were acting lawfully.2i

As well as uncertain, that seems a potentially wide-ranging
exception. Further, while I accept that Mr Slevin was acting throughout in good
faith, there is no clear evidence that he turned his mind to the lawfulness of his 171

request.

 

Je?ez?ies, above 4. See also, Williams, above 6, at 

See, Hamed R, above 11 5, at [174] per Blanchard J.

1" At [174].

Faasipa (1995) 2 HRNZ 50 (CA). See also Gallery Police [2013] NZHC 3014 at 
Hamed R, above 5, at [174].

 

[74] I therefore ?nd that the search and seizure, being unlawful and not ?tting

Within any recognised exception, is unreasonable in terms of 21 of the BORA.

[75] Even if the original search and seizure were lawful, Mr Slevin?s continuing
retention or seizure would still be unreasonable for the purposes of 21 of the
BORA. This is because, as a matter of general principle, the State should not be
holding onto documents that are personal and clearly irrelevant to any regulator?s
purpose. Once such documents have been identi?ed, there is no longer the rationale
of the Of?cial Assignee needing to assure herself as to whether the ?les are relevant
to her investigation. Any document that has been opened, that in the View of the
Of?cial Assignee is clearly of a personal nature and that can be ruled out as relevant,
to the bankruptcy, should not be retained even when lawfully acquired. Such a
document should be copied to the bankrupt and then deleted from the ?le. That is, in
fact, what Associate Judge Osborne ordered as a condition when he directed that the
entire ?le be returned to the Of?cial Assignee on 11 June 2013, although I note that
the condition was proposed by Mr Henderson and not objected to by the
Attorney-General. The Attorney-General had sought that such documents be

quarantined, but still available to the Of?cial Assignee and employees.

[76] I consider that to the extent Mr Slevin did not copy to Mr Henderson and
delete any personal and irrelevant documents that were opened, in a context where
he had obtained all the documents stored on a computer, he was acting unreasonably

in terms of 21 of the BORA.

[77] While I note that Mr Moss did not raise it as a substantive point in his written
submissions, I also consider that Mr Slevin?s retention of the ?les was unreasonable
when, contrary to his self-imposed search terms, he forwarded the ?ash drive
containing the documents from Mr Henderson?s hard drive to Mr Wolmarans (the
Investigations Manager of the Of?cial Assignee?s National Enforcement Unit).
Mr Slevin made no reference to the need to preserve privacy when he did so.
Mr Slevin?s actions in forwarding the ?ash drive were not a proper recognition of
Mr Henderson?s expectation of privacy, given Mr Slevin knew at that stage that there

were personal ?les irrelevant for his purposes on the ?ash drive. However, because

 

Mr Wolmarans was unable to search the ?ash drive, I consider this to be a

de minimis breach.

What is an appropriate remedy?

[78] Mr Henderson seeks a declaration and an award of damages of $20,000 to
recognise his loss of dignity, humiliation suffered, and his efforts to have the State

recognise its obligations to members of society.

[79] A rights~centred approach is taken to the granting of BORA remedies,
whereby their primary purpose is to ?af?rm the right, not punish the transgressor?.22
The appropriate remedy for a breach of the BORA is to be determined by the Court
on a case-by-case basis. The Judge?s determination of what constitutes an
appropriate remedy, if any, to best vindicate the right breached, is a matter of

- - 2
discretion. 3

[80] Any remedy granted for the breach of a BORA right should be proportional
to the extent of that breach.24

[81] Ordinarily the remedy for a breach of this kind would be exclusion of the
documents from evidence. It is accepted that is not appropriate here, given the

March 2014 Court order that the documents be returned to the Of?cial Assignee.

[82] The making of a declaration furthers the purpose of marking society?s

disapproval of a breach and does not trivialise the remedy.25

[83] Blanchard in Taunoa Attorney General stated that:26

It may be entirely unnecessary or inappropriate to award damages if the
breach is relatively quite minor or the right is of a kind which is
appropriately vindicated by non-monetary means.

 

22 Simpson Attorney?General (Baigent?s case) [1994] 3 NZLR 667 (CA) at 703 per

Hardie Boys J.
23 At 692 per Casey J.
24 Martin Tauranga District Court [1995] 2 NZLR 419 (CA) at 428 per Richardson 3.
25 Vogel vAttorney?General [2013] NZCA 545, [2014] NZAR 67 at 
26 Taunoa vAttorney?General [2007] 70, [2008] NZLR 429 at [256].

 

[84] Mr Kinsler submitted that I could exercise my discretion to decline a

declaration, but acknowledged the Courts were increasingly reluctant to do that.

[85] I consider that the breach of Mr Henderson?s right against unreasonable
search and seizure is appropriately vindicated by providing a declaration.
Adeclaration marks the breaches, and will deter the Official Assignee and those

assisting her, from breaching the right under 21 of the BORA in future.

[86] I do not consider it necessary to also make an award of damages for the
breach. A declaration is suf?cient to vindicate Mr Henderson?s right. While an
important right has been breached, the extent of the breach was not great.
Mr Henderson?s unlawfully obtained private information was only viewed by
Mr Slevin. Even though Mr Slevin sent information to Mr Wolrnarans, the latter
only viewed documents relevant to his inquiry. The personal documents were not

viewed by him.

[87] Further, given the 18 March 2014 direction by Associate Judge Osborne that
Mr Walker should give the Official Assignee the ?ash drives to review in entirety, it
is difficult to say that there was any signi?cant degree of harm to Mr Henderson
from Mr Slevin?s having access to the documents. The conditions ordered by the
Associate Judge were not materially different to the manner in which Mr Slevin dealt
with the documents, except insofar as the Associate Judge ordered return and
deletion, rather than quarantine, of documents the Of?cial Assignee considered to be

purely personal.

Result

[88] I make the following declarations:

Mr Slevin?s exercise of 171 on 14 June 2011 was both a search and

seizure and unreasonable for the purposes of 21 of the BORA.

 

 Mr Slevin?s continued exercise of control over Mr Henderson?s
private material was a search and/or seizure and unreasonable for the

purposes of 21 of the BORA.

[90] I make no order for damages.

[91] Costs are reserved, as requested by Mr Kinsler. If either party is seeking
costs, they should ?le a memorandum within 14 days. Memoranda in reply must be

?led within a further 14 days.

 

Hinton