IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA
TĀMAKI MAKAURAU ROHE
CIV-2016-404-1312
[2019] NZHC 1666
BETWEEN

JOHN DOUGLAS SELLMAN
First Plaintiff
BOYD ANTHONY SWINBURN
Second Plaintiff
SHANE KAWENATA FREDERICK
BRADBROOK
Third Plaintiff

AND

CAMERON JOHN SLATER
First Defendant
Cont’d …/2

Teleconference:

3 July 2019

Appearances:

J P Cundy for the Plaintiffs
B P Henry for the first defendant
E J Grove for the second and third defendants
J W S Baigent and W Akel for the fourth and fifth defendants

Judgment:

17 July 2019

JUDGMENT NO 8 OF PALMER J
This judgment is delivered by me on 17 July 2019 at 12 noon
pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar

Counsel/Solicitors:
Lee Salmon Long, Auckland
B P Henry, Barrister, Auckland
Shanahans Law Ltd, New Lynn, Auckland
Chris Patterson Barrister Ltd, Auckland
Andrew Walter Graham & Co, Auckland
William Akel, Barrister, Auckland
Simpson Grierson, Auckland

SELLMAN v SLATER [2019] NZHC 1666 [17 July 2019]

 CIV-2016-404-1312
… /2
CARRICK DOUGLAS
GRAHAM
Second Defendant
FACILITATE
LIMITED
Third Defendant

MONTROSE

COMMUNICATIONS

KATHERINE RICH
Fourth Defendant
NEW
ZEALAND
FOOD
GROCERY COUNCIL INC
Fifth Defendant

AND

 Summary
[1]

In this proceeding, three medical professionals sue Mr Cameron Slater, and

other defendants, for defamation. In an interlocutory judgment of 23 November 2018,
I ordered Mr Slater to provide further particular discovery and to attend court to be
orally examined. Since then, Mr Henry, for Mr Slater, has: applied for a temporary
stay on the basis Mr Slater’s medical condition prevented him giving instructions;
foreshadowed an intention to apply for appointment of a litigation guardian; advised
of Mr Slater’s bankruptcy; and advised that he has instructions to oppose new
applications but that Mr Slater no longer defends the substantive proceeding.
[2]

The plaintiffs have applied for orders that Mr Slater comply with the court

orders for discovery and oral examination or be held in contempt of court. Mr Henry
now submits, on Mr Slater’s instructions, that Mr Slater is no longer a party to the
proceeding or able to engage a solicitor, because he is bankrupt, and he seeks a formal
hearing on that issue. Mr Henry also says there are medical reports from February
2019 confirming Mr Slater is unable to give evidence in court.
[3]

On 20 March 2019, I ordered this proceeding to continue against Mr Slater

despite his bankruptcy, under a wide discretion in s 76(2) of the Insolvency Act 2006
(the Act). I consider an implicit term of that order is that Mr Slater must comply with
the orders made against him in the proceeding, which was one of the reasons why the
plaintiffs sought continuation of the proceeding. If that was not sufficiently implicit,
I now make it explicit under that discretion and/or under the inherent jurisdiction of
the High Court to supervise proceedings before it. That means Mr Slater must comply
with the court orders irrespective of Mr Henry’s argument about the effect of his
bankruptcy. Further argument is not required. Mr Slater must comply with the orders
personally if the Official Assignee cannot do so through the exercise of the Assignee’s
powers over Mr Slater’s property. If Mr Slater is able to give instructions, and wishes
to oppose the plaintiffs’ application to be heard on 26 July 2019, he needs to file a
notice of opposition, and any supporting affidavits including any medical evidence. If
he is not able to give instructions I will consider appointing a litigation guardian for
him.

 What has happened in this proceeding?
I would not ordinarily set out the context of a decision such as this one in so

[4]

much detail, but it may be useful if the issue determined in this judgment is considered
on appeal, as Mr Henry has intimated might be sought.
The proceeding
This proceeding was commenced three years ago, in mid-2016. The plaintiffs

[5]

are three medical professionals, Dr Doug Sellman, Dr Boyd Swinburn and Mr Shane
Bradbrook. They sue Mr Slater who they allege defamed them in a series of blog posts
on his Whale Oil website. They also sue Mr Carrick Graham and his company
Facilitate Communications Ltd (FCL) for defaming them in comments on the posts.
And they sue Mrs Katherine Rich and the New Zealand Food and Grocery Council
Ltd (NZFGC) for allegedly procuring Mr Slater, Mr Graham and FCL to publish the
substance and sting of the alleged defamation. I am case-managing the proceeding to
trial.
Interlocutory judgments
[6]

On 2 October 2017, I decided a number of interlocutory applications brought

by the defendants to strike out the proceeding or specific aspects of it. 1 I struck out
21 pleaded meanings of defamatory statements but did not strike out the proceeding.
On 23 November 2018, I decided a number of further interlocutory applications.2
Relevantly, I granted the plaintiffs’ applications for:3
(a)

Mr Slater to provide further particular discovery to the plaintiffs and
other defendants, because there were grounds for believing he had not
discovered relevant documents. He was ordered to provide discovery,
within 15 working days, by 14 December 2018, of:

1
2
3

Sellman v Slater [2017] NZHC 2392, [2018] 2 NZLR 218.
Sellman v Slater (No 6) [2018] NZHC 3057.
At [1](b), [66](b) and [1](e), [66](e).

 (i)

documents passing between him and Mr Graham and FCL and
between him and third parties including any of NZFGC’s
members, relating to:
(1)

any of the plaintiffs or Te Reo Mārama;

(2)

publication of the blog posts, comments or other
material on Whale Oil that are the subject of this
proceeding and/or that concern the plaintiffs;

(3)

the services provided by Mr Slater, Social Media
Consultants Ltd, Mr Graham or FCL (including invoices
for the services) including in relation to the alcohol, food
and beverage or tobacco industries, which relate to the
subjects of the blog posts or comments that are the
subject of this proceeding;

(ii)

documents and data that are or have been in Mr Slater’s control,
concerning numbers of downloads of each blog post, details of
user comments and any requests under the Official Information
Act 1982 or Privacy Act 1993 and responses; and

(b)

Mr Slater and Mr Graham will attend court to be orally examined for
up to one day because I considered they had made insufficient answers
to interrogatories, particularly about whether blog posts were posted on
the Whale Oil website for reward. That was to be on a date determined
by the Registrar after 15 working days of 23 November 2018. The
Registrar set the date to be 4 February 2019.

Mr Slater’s application for a stay
[7]

On 14 December 2018, the last day by which Mr Slater’s discovery was due,

his counsel Mr Henry applied for a temporary stay of the proceeding on the basis of

 Mr Slater’s medical condition.4 He also applied for suppression of Mr Slater’s medical
details, of which he provided evidence, which I granted. Mr Henry told me he had
been unable to get instructions from Mr Slater due to his lack of concentration. He
stated his intention to have Mr Slater’s condition completely assessed at the end of
January 2019. The plaintiffs opposed the stay, on the basis of their own expert medical
opinion evidence. I stated that, without testing the medical evidence more, I was “not
prepared to disregard the advice of the two doctors who have examined Mr Slater in
favour of the opinion of another doctor who has read his discharge notes”.5 I did not
stay the proceeding but lengthened the deadlines for Mr Slater so they occurred at least
three months after his medical event. I ordered him to provide the discovery by 18
February 2018. I asked the Registry to reschedule the oral examination to after 25
February 2019. I required Mr Slater to file and serve a memorandum by 30 January
2019, regarding any reason why the proceeding should not proceed as now scheduled.
Foreshadowed application for a litigation guardian for Mr Slater
[8]

On 15 February 2019, Mr Henry advised that Mr Slater had been examined by

doctors and referred to a specialist but an appointment could not be obtained until 30
March 2019.6 He said he had instructions to apply for appointment of a litigation
guardian for Mr Slater. The plaintiffs did not object to an adjournment. I made
timetabling orders for the application for a litigation guardian, and for Mr Slater’s
application for a stay if he wished to pursue it. I also required the discovery ordered
in the judgment of 23 November 2018 to be given by 15 April 2019 and the oral
examination to be scheduled by the Registry after 29 April 2019. It was scheduled for
1 May 2019.
Mr Slater’s application for bankruptcy
[9]

On 25 February 2019 Mr Henry, and his junior Ms Singh, sought leave to

withdraw because they no longer had instructions.7 Mr Henry advised me Mr Slater
was no longer capable of working, has extensive legal fees outstanding and had
voluntarily applied to be adjudicated bankrupt. He advised a specialist had given oral
4
5
6
7

Minute No 11 of Palmer J, 18 December 2018.
At [10].
Minute No 12 of Palmer J, 15 February 2019 at [1].
Minute No 13 of Palmer J, 26 February 2019, at [2].

 advice on Mr Slater’s medical condition and his family had determined he had to be
isolated from stress. Mr Henry also advised it was no longer proposed to apply for
appointment of a litigation guardian but, rather the proceeding would be halted under
s 76 of the Act.
I stated in my minute of 26 February 2019 that leave to withdraw would be

[10]

conditional on a promised memorandum on costs being filed. Given the uncertainty
about representation, I also asked Mr Henry whether he would be prepared to act as
counsel assisting the court to complete the memorandum on costs and to advise the
Court if Mr Slater’s application for bankruptcy was successful. Mr Henry accepted
the appointment and subsequently advised Mr Slater was adjudicated bankrupt on 27
February 2019. Accordingly, under s 76 of the Act, the proceeding against Mr Slater
was automatically “halted”, by operation of law, as a consequence of his bankruptcy.
In a joint memorandum of 14 March 2019 with counsel for the Official

[11]

Assignee, the plaintiffs sought leave to continue the proceeding against Mr Slater
under s 76(2) of the Act. That section empowers the court, “on the application by any
creditor or other person interested in the bankruptcy”, to “allow proceedings that had
already begun before the date of adjudication to continue on the terms and conditions
that the court thinks appropriate”. The plaintiffs’ reasons were: to vindicate their
reputations; to determine Mr Slater’s liability so any judgment sums can be proved in
Mr Slater’s bankruptcy; Mr Slater had extant discovery obligations in the proceeding;
it was necessary for Mr Slater to remain a party so he could be subject to the oral
examination order and cross-examination at trial; and the proceeding would continue
against the other defendants in any event.
The Official Assignee was not able to assess the amount of Mr Slater’s liability

[12]

to the plaintiffs, did not object to the proceeding being continued against Mr Slater,
did not seek for any conditions to be imposed and did not seek to be made a party.8 In
a further memorandum of 18 March 2019, Counsel for the plaintiffs sought a timetable
leading up to hearing of an application for appointment of a litigation guardian for Mr
Slater.

8

Minute No 14 of Palmer J, 20 March 2019, at [5].

 [13]

At a teleconference on 19 March 2019:
(a)

Mr Henry submitted the plaintiffs were entitled to apply for default
judgment but submitted what was being proposed was an abuse of
process. He also raised the question of his status again.

(b)

The other defendants made no submissions on the question of
continuation of the proceedings against Mr Slater.

(c)

Mr Henry’s understanding was that Mr Slater was withdrawing from
the proceeding, in which case the plaintiffs could seek judgment and
prove the amount of damage by formal proof.9 Mr Henry told me he
had received medical reports he had been instructed to sit on for the
moment, but which could be relied upon if further applications were
made against Mr Slater.

[14]

In Minute No 14 of 20 March 2019:
(a)

I clarified I had not yet given him or Ms Singh leave to withdraw. I
stated Mr Henry’s indication that he had medical reports but had been
instructed to sit on them at the present time and use them in response to
applications, suggested he was still acting in that capacity.10 I indicated
I was prepared to grant leave to withdraw pending only progressing
issues around appointment of a litigation guardian.

(b)

I observed the plaintiffs’ claim was not clearly unsustainable, it was
more suitably determined by action than by lodging proof of debt in the
bankruptcy and it was inappropriate for the Official Assignee to
determine whether a claim by the plaintiffs against Mr Slater should be
admitted or rejected.11 Accordingly, I allowed “the proceeding to
continue against Mr Slater, under s 76(2) of the Act”.

9
10
11

At [9].
At [3].
At [7].

 (c)

I indicated I was not clear about why Mr Slater was taking no steps in
the proceeding:12 whether it was because he was incapacitated and not
able to give instructions (in which case a litigation guardian should be
appointed); or if it was because he was not incapacitated but simply did
not wish to take any steps. I considered I needed to know whether Mr
Slater was incapacitated or not and Mr Henry’s previous advice to the
court suggested he might be. I gave leave to the parties to file further
submissions.

[15]

In his memorandum of 26 March 2019, Mr Henry confirmed he still had “a

measure of instruction” from Mr Slater, in relation to any new applications to compel
Mr Slater to be involved in any proceedings that endanger his health, but not in relation
to the substantive proceedings, in respect of which instructions had been withdrawn.13
He submitted Mr Slater had no ability to fund a defence of the proceeding and he had
decided he would no longer participate in defending them when he applied for
bankruptcy. He advised that Mr Slater had instructed he would not be seeking to
appoint a litigation guardian and would not participate further in the proceeding on
health grounds. He submitted the plaintiffs could not compel Mr Slater to engage in
the process further but may obtain judgment against him and look to other rules of
court to pursue examination of Mr Slater, in response to which Mr Slater would object
on medical grounds. Mr Cundy, for the plaintiffs, submitted Mr Henry’s memorandum
suggested Mr Slater was incapacitated and required a litigation guardian.14 He
submitted Mr Slater should be required to comply with the discovery order and attend
court for the oral examination.
[16]

In Minute No 15 of 2 April 2019, I did not consider there was any medical

evidence on the basis of which I could be satisfied Mr Slater was then incapacitated
so that I could appoint a litigation guardian for him.15 I noted Mr Slater appeared to
intend not to comply with the discovery and oral examination orders, made in the 23
November 2018 judgment, and that he had sought to avoid complying with them from
14 December 2018 by successively applying for a stay on medical grounds, indicating
12
13
14
15

At [10].
Minute No 15 of Palmer J, 2 April 2019, at [3].
At [4].
At [6].

 he would apply for appointment of a litigation guardian, withdrawing instructions
from counsel, indicating he would take no steps and applying for bankruptcy. I
indicated the ball in the Court was with the plaintiffs to consider what applications
they wished to make.16 I also terminated Mr Henry’s appointment as counsel assisting
the court.17
The application to compel compliance or be sanctioned for contempt
[17]

At a teleconference of 17 April 2019, Mr Cundy advised the plaintiffs intended

to apply for orders compelling Mr Slater to provide discovery and attend the oral
examination and sought timetabling orders to a hearing.18 Mr Henry submitted that
was an abuse of process. I made the timetabling orders, leading to a half-day hearing
of the application on 26 July 2019.
[18]

On 6 May 2019, the plaintiffs filed and served their application for orders that

Mr Slater comply with the order for particular discovery within 10 working days and
attend Court to be orally examined for up to one day at a date to be scheduled. If he
fails to comply with either order, the plaintiffs seek orders he will be in contempt of
Court, with appropriate sanctions to be imposed under s 165 of the Senior Courts Act
2016. They also seek costs. The plaintiffs filed a supporting affidavit.
[19]

On 20 May 2019, Ms Singh signed a memorandum for Mr Henry and herself

as “Counsel assisting the Court” though the memorandum was entitled “on behalf of
Cameron Slater (bankrupt)”. She submitted that Mr Slater’s bankruptcy affects his
legal status “in that the bankrupt’s property [as defined in s 3 of the Act] vests in the
Official Assignee under s 7(a) of the Act”. She submitted I granted leave to the
plaintiffs to proceed under s 76(2) on the basis it is not appropriate for the Official
Assignee to assess proof of debt against Mr Slater and the plaintiffs need to formally
prove their claims. She submitted, because Mr Slater is now bankrupt, “the proceeding
is now against Mr Slater’s (bankrupt) estate, (in the hands of the Official Assignee)”,
and “can no longer continue against Mr Slater in personam (i.e. against Mr Slater
bankrupt) because all his interests vests (sic) in the Official Assignee under section
16
17
18

At [7].
At [9].
Minute No 16 of Palmer J, 17 April 2019, at [2].

 7(a) of the Act”.19 She submitted the plaintiffs are entitled to obtain a default judgment
and prove damage to reputation (if any) and that is the only appropriate remedy
available to them. She submitted the plaintiffs’ path is inefficient, unnecessary and
costly and circumvents the mechanism in the Act to enforce costs against Mr Slater
and this litigation.
[20]

On 24 May 2019, Mr Henry filed a “Further Memorandum of Counsel on

behalf of Cameron Slater (bankrupt)”. He submitted Mr Slater “is no longer a party
to this proceeding as all his interests have vested in the Official Assignee” and “Mr
Slater’s bankrupt estate is now the First Defendant to this proceeding”. 20

He

submitted, if any party wants evidential assistance from Mr Slater they will be required
to issue a subpoena. He also submitted Mr Slater was still recovering from a serious
medical event on 30 October 2018, he was examined by a specialist on 13 February
2019 and 20 February 2019 and medical reports confirmed Mr Henry’s view that Mr
Slater is unable to participate in cross-examination, give evidence in Court and
respond to a subpoena. Mr Henry advised, if Mr Slater is subpoenaed, he would only
provide the medical report on a “counsel eyes’ only” basis due to its sensitive content.
Mr Henry stated he had instructions from Mr Slater’s family because, as a bankrupt,
he is not capable of directly engaging a solicitor, but he has no instructions from Mr
Slater’s bankrupt estate. He sought leave to withdraw because of that.
[21]

On 11 June 2019, Mr Cundy sought a further teleconference before the 26 July

2019 hearing in light of these memoranda and Mr Slater not filing any notice of
opposition to the plaintiffs’ application. Mr Cundy submitted Mr Slater remains a
party, on the basis of my decision under s 76(2) of the Act, and if he wishes to oppose
the application Mr Slater will need to file a notice of opposition and any medical
evidence. He submits it is incorrect a bankrupt person cannot give instructions to a
solicitor and Mr Henry cannot purport to act on instructions from non-parties. He
submits the ongoing delays in this proceeding have largely been due to positions taken
by Mr Slater. He proposed a timetable for the filing and service of a notice of
opposition and any affidavits, including on Mr Slater’s medical condition.

19
20

Memorandum of Counsel, 20 May 2019, at [7].
Memorandum of Counsel, 24 May 2019, at [3].

 [22]

On 19 June 2019, Mr Henry filed a further memorandum stating no party is

instructing him, no person is taking responsibility for his fees, he has no professional
responsibility for the plaintiffs’ issues, he is attending Court and filing responses out
of courtesy to the Court and he renews his application for leave to withdraw.
[23]

I held a further teleconference on 3 July 2019. Counsel reiterate their positions

as above. In addition:
(a)

Mr Cundy submits that if Mr Slater is incapacitated to the extent he is
unable to give instructions, a litigation guardian should be appointed
but noted that seemed unlikely as Mr Henry has previously stated he
had instructions for some purposes. Mr Cundy submits the distinction
between Mr Slater as a person and Mr Slater’s bankrupt estate is not
known to the law and the reason why leave was granted to continue the
proceeding was specifically because Mr Slater had further steps to take
in the proceeding and the plaintiffs were seeking to vindicate their
reputation. He also submits that medical evidence relevant to the
application should be advanced before the hearing on 26 July 2019.

(b)

Mr Henry clarifies he is making his submissions on behalf of Mr Slater
personally, on the basis of Mr Slater’s instructions. He seeks leave to
withdraw from acting for the first defendant because the first defendant
is Mr Slater’s bankrupt estate, on behalf of which he is not instructed.
He confirms, if I do not accept his position, he would want the
opportunity to respond to the application on behalf of Mr Slater in
person. He seeks his status as counsel assisting the court be reinstated.
And he seeks that I set down a formal hearing, in person, for an hour
and a half, of his point about the legal status of a bankrupt.

(c)

Mr Grove, for Mr Graham and FCL, seeks to be excused from any
formal argument of the effects of Mr Slater’s bankruptcy. Ms Baigent
reserves the position of Ms Rich and the NZFGC.

 Orders
[24]

On 23 November 2018, Mr Slater was ordered to provide further discovery by

14 December 2018 and to attend the High Court to be orally examined at a date
subsequently set as 4 February 2019. Since then, in summary:
(a)

On 14 December 2018, Mr Henry applied for a temporary stay of
proceedings because Mr Slater’s medical condition prevented him
getting instructions from Mr Slater and medical assessment was
required. I lengthened the deadlines on Mr Slater.

(b)

On 15 February 2019, Mr Henry advised he had instructions to apply
for appointment of a litigation guardian for Mr Slater on the basis of a
medical appointment that was not available until 30 March 2019. I
further lengthened the deadlines on Mr Slater.

(c)

On 26 February 2019, Mr Henry advised Mr Slater no longer proposed
to apply for appointment of a litigation guardian but was not capable of
working and had applied for bankruptcy which would halt the
proceeding against him. I allowed the proceeding to continue against
Mr Slater and sought clarity about whether Mr Slater was incapacitated.

(d)

On 26 March 2019, Mr Henry advised he had “a measure of
instruction” from Mr Slater in relation to any new applications but not
in relation to the substantive proceedings, which Mr Slater would not
defend and in which he would not participate on medical grounds.

(e)

On 20 and 24 May 2019, Ms Singh submitted the proceeding is now
against Mr Slater’s bankrupt estate, rather than Mr Slater in personam.
Mr Henry submits, for that reason, Mr Slater is no longer a party to the
proceeding or able to engage a solicitor. Mr Henry also says he has
medical reports from February 2019 confirming Mr Slater is unable to
be cross-examined or give evidence in Court or respond to a subpoena.

 (f)

On 3 July 2019, Mr Henry advised he was acting on the instructions of
Mr Slater, personally.

The effect of Mr Slater’s bankruptcy
[25]

I regard Mr Henry’s submission about the different legal personalities of a

bankrupt and a bankrupt estate as a nice academic issue. Relevantly:
(a)

Under ss 7 and 101 of the Act, bankruptcy affects the legal status of a
person and has important consequences. That includes the bankrupt’s
property vesting in the Official Assignee, the bankrupt’s rights in the
property being extinguished and the bankrupt’s powers over, or in
respect of, any property vesting in the Assignee.

(b)

Rule 4.49 of the High Court Rules 2016 (the Rules) provides a
proceeding does not end on bankruptcy of a party if the cause of action
continues. Rule 4.50 requires a court to order that a successor to the
interest of a bankrupt be made a party, or served with notice of it, on
terms the court thinks just, “in circumstances where the complete
settlement of all the questions involved in the proceeding is necessary”.

(c)

The United Kingdom Supreme Court has recently observed:
(i)

a cardinal feature of personal insolvency is that the effect of
bankruptcy

on

existing

liabilities

is

procedural,

not

substantive;21
(ii)

a trustee in bankruptcy (equivalent to the role of our Official
Assignee) is personally a party to legal proceedings the trustee
has adopted because the bankrupt’s assets vest in the trustee
personally and, except for a limited class of purely personal
actions, a bankrupt claimant has no further interest in the

21

In re Lehman Brothers International (Europe) (in administration) (No 4) [2017] UKSC 38, [2018]
AC 465 at [197].

 defence of legal proceedings, or the cause of action asserted in
the proceedings.22
[26]

On the basis of what I have heard so far, I would be inclined to doubt that

bankruptcy alters the legal personality of the bankrupt. Rather, I would expect the
Official Assignee is empowered to exercise the bankrupt’s rights and powers in a legal
proceeding which are related to the bankrupt’s property interests. I would expect a
bankrupt continues to be personally responsible for the discharge of duties in legal
proceedings which are purely personal in nature and unrelated to any property interest
of the bankrupt.23
[27]

No doubt further argument would elucidate this issue. But I do not need to

hear further argument because I do not consider I need decide it. The issue here is
whether Mr Slater’s bankruptcy necessarily negates the need to comply with the
Court’s orders to date. Irrespective of the default legal effect created by Mr Slater’s
bankruptcy, I consider it need not and that it does not.
[28]

Section 76(2) of the Act provides that “on the application by any creditor or

other person interested in the bankruptcy, the court may allow proceedings that had
already begun before the date of adjudication to continue on the terms and conditions
that the court thinks appropriate”. That is, if anything, wider than the court’s discretion
in the predecessor section which was characterised by the High Court as wide.24
[29]

Under the discretion, on 20 March 2019, I ordered this proceeding to continue

against Mr Slater. I consider it is an implicit term of that order that Mr Slater must
comply with orders made against him in the proceeding, which was one of the reasons
why the plaintiffs sought its continuation against him. If that was not sufficiently
implicit, I now make it explicit under that discretion and/or under the inherent
jurisdiction of the High Court to supervise proceedings before it. That means Mr
Slater must comply with the court orders irrespective of Mr Henry’s argument about
the effect of his bankruptcy. Given that, I do not consider the court and the parties
22
23

24

Gabriel v BPE Solicitors [2015] UKSC 39, [2015] AC 1663 at [9].
Cf Tamihere v Commissioner of Inland Revenue [2017] NZHC 2949 at [15], citing Heath v Tang
[1993] 1 WLR 1421 (CA) at 1424 and Mawhinney v Environment Court [2015] NZHC 1663.
de Alwis v Luvit Foods International Ltd (2007) 3 NZCCLR 1015 (HC) at [4].

 need to incur yet further delays from, and the expense of, argument about that issue.
Further argument is not required.
[30]

Mr Slater must comply with the orders personally if the Official Assignee

cannot do so through the exercise of the Assignee’s powers. The order to be examined
orally must be complied with by Mr Slater personally, subject to what I say below
about his medical condition. If the Official Assignee has possession of, and control
over, Mr Slater’s documents sufficient to discharge Mr Slater’s obligations under the
discovery order then I request the Official Assignee to arrange compliance with that
order. Otherwise, Mr Slater will need to comply with that obligation personally too.
[31]

If required to facilitate compliance with the Court’s orders, I would consider

exercising the discretion in r 4.50 to order that a successor to Mr Slater’s interest in
the proceeding be made a party on specified terms, or to order Mr Slater make third
party discovery under the Rules or to make any other orders required under the Court’s
inherent jurisdiction to supervise the conduct of legal proceedings before it. The
Official Assignee is welcome to make suitable recommendations about those options.
[32]

It would be helpful if the Official Assignee can file a memorandum with the

Court about these matters, and serve it on the parties, by 1 pm Wednesday 24 July
2019. I will be hearing the plaintiffs’ application to compel compliance or sanction
for contempt at 10 am on Friday 26 July 2019.
Mr Slater’s medical condition
[33]

In terms of Mr Slater’s medical condition, I identify three possibilities:
(a)

either Mr Slater is incapacitated and not able to give instructions, in
which case a litigation guardian must be appointed for him under r 4.30
of the High Court Rules 2016; or

(b)

Mr Slater is able to give instructions but is not medically able to provide
discovery and/or be orally examined, in which case medical evidence
of that must be provided and tested if required in response to the

 plaintiffs’ current application to compel compliance or sanction for
contempt; or
(c)

Mr Slater is able to give instructions, is able to provide discovery and
be orally examined but does not want to do so, in which case he must
face the consequences of the plaintiffs’ current application.

[34]

I assume that possibility (a) is not the case, because Mr Henry has most recently

said he has instructions from Mr Slater. If, now or at some future point, Mr Henry
were to tell me Mr Slater is incapacitated and not able to give instructions, then I would
want to see an affidavit explaining the basis of such a statement and its consistency
with the various statements made to me to date and I would consider appointing a
litigation guardian under r 4.35 of the Rules.
[35]

If possibility (b) or (c) is the case, Mr Slater will need to file a notice of

opposition to the plaintiffs’ application to compel compliance or sanction for
contempt, with any supporting affidavits, by 1 pm Monday 22 July 2019, if he wishes
to oppose the application. The plaintiffs must file a synopsis of their submissions, and
any affidavits in reply by 1 pm Wednesday 24 July 2019. Mr Slater must file his
synopsis of submissions by 1 pm Thursday 25 July 2019.
Mr Slater’s representation
[36]

Mr Henry clarified to me on 3 July 2019 that he was making submissions on

behalf of Mr Slater personally, on the basis of Mr Slater’s instructions. He had
previously advised he had instructions to oppose applications to require Mr Slater’s
participation in the proceeding. I assume his previously expressed request for leave
to withdraw as Mr Slater’s counsel does not apply to the plaintiffs’ application to
compel compliance or sanction for contempt, to be heard on 26 July 2019. If it does
apply to that, I decline to grant leave to withdraw. Neither do I appoint him as counsel
assisting the Court. Mr Slater’s legal representation appears to be important to
resolution of this issue.

Palmer J