Allen v Attorney-General
[2012] NZHC 2635
•3 October 2012
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2008-485-2507 [2012] NZHC 2635
BETWEEN ROBBIE JAMES ALLEN Plaintiff
ANDTHE ATTORNEY GENERAL Defendant
BETWEEN ANTHONY BROWN Plaintiff
CIV-2008-485-1683
ANDTHE ATTORNEY GENERAL Defendant
CIV-2006-485-1280
BETWEEN MARK TAIAROA HADDON
Plaintiff
ANDTHE ATTORNEY-GENERAL Defendant
CIV-2008-485-2207
BETWEEN LARRY BRENT HOWLEY
Plaintiff
ANDTHE ATTORNEY GENERAL Defendant
CIV-2006-485-2746
BETWEEN IAN DOUGLAS JOHNSON
Plaintiff
ANDTHE ATTORNEY-GENERAL First Defendant
ANDCROWN HEALTH FINANCING AGENCY
Second Defendant
CIV-2006-485-1741
BETWEEN DIANA MAREE LEEKS
Plaintiff
ANDTHE ATTORNEY-GENERAL Defendant
Cont/Page 2
Judgment: 3 October 2012
DECISION OF ASSOCIATE JUDGE D.I. GENDALL
Under r 11.5 of the High Court Rules I direct the Registrar to deliver this decision on
3 October 2012 at 3.00 pm.
Solicitors: Cooper Legal, Barristers and Solicitors, PO Box 10 899, Wellington
RJ ALLEN & ORS V THE ATTORNEY GENERAL HC WN CIV-2008-485-2507 [3 October 2012]
CIV-2008-485-2384
BETWEEN JOSEPH ELLIS MARTIN Plaintiff
ANDTHE ATTORNEY-GENERAL Defendant
CIV-2007-485-0058
BETWEEN LESLIE CHARLES SMITH (Third) Plaintiff
ANDCROWN HEALTH FINANCING AGENCY
Defendant
[1] Before the Court in each of the proceedings noted in the above intituling are applications by Ms Cooper as counsel and solicitor for the respective plaintiffs for orders that she cease to be the solicitor on the record for those plaintiffs.
[2] These applications are made pursuant to r 5.41 High Court Rules which states where relevant:
“5.41 Withdrawal of Solicitor Who has Ceased to Act for Party
(1) If the solicitor on the record for a party to a proceeding has ceased to act for the party, the solicitor may apply to the Court for an order declaring that the solicitor has ceased to be the solicitor on the record for the party in that proceeding and the Court may make the order.
………
(4) Every application under sub-clause (1) must be made by interlocutory application and must be supported by an affidavit giving the grounds of the application.
(5) Unless the Court otherwise directs, notice of every application under subclause (1), and a copy of the affidavit in support of the application, must be served on the party for whom the solicitor acted, and that notice must inform the party of the effect that r
5.42 would have on the party’s address for service if the solicitor
obtains an order under sub-clause (1).
………”.
[3] On 23 July 2012 in each of the present cases I issued a Minute requiring service of the respective applications and supporting material on the individual plaintiffs by way of substituted service advertisement in newspapers circulating throughout New Zealand, but in the case of Robbie James Allen (Mr Allen) directing substituted service of the material by email or mail sent care of his probation officer, and in the case of Ian Douglas Johnson (Mr Johnson) directing substituted service of
the material by way of regular mail sent to him care of the Otago Corrections
Facility.
[4] Ms Cooper, counsel for the individual plaintiffs has now filed a memorandum dated 16 August 2012 confirming that substituted service as outlined has been completed. A schedule to that memorandum confirms service as follows:
Schedule of Plaintiffs
NAME CIV NO. SUBSTITUTED SERVICE METHOD
DATE OF SERVICE
Robbie James
Allen
2008-485-2507 By email to Probation
Officer Matthew Evans
24 July 2012
Anthony Brown 2008-485-1683 Advertisement in the
Whakatane Beacon on 1
August 2012
16 August
2012
Mark Taiaroa
Haddon
Larry Brent
Howley
Ian Douglas
Johnson
Diana Maree
Leeks
Joseph Ellis
Martin
Leslie Charles
Smith
2006-485-1280 Advertisement in the
Dominion Post on 1 August
2012
2008-485-2207 Advertisement in the
Christchurch Press on 1
August 2012
2006-485-2746 By letter posted care of
Otago Corrections Facility
2006-485-1741 Advertisement in the
Dominion Post on 1 August
2012
2008-485-2384 Advertisement in the New
Zealand Herald on 1 August
2012
2007-485-0058 Advertisement in the
Dominion Post on 1 August
2012
16 August
2012
16 August
2012
24 July 2012
16 August
2012
16 August
2012
16 August
2012
[5] In my Minute dated 23 July 2012 I indicated that service on each of the plaintiffs was to be deemed to be effected 10 working days after the dates of publication of the respective advertisements or the dates of dispatch of the email or regular mail in question. The service of the proceedings here on the individual plaintiffs was deemed to have been effected on 16 August 2012 for all plaintiffs except Mr Johnson and Mr Allen where service was deemed to have been effected on
24 July 2012.
[6] A reasonable period of time has now elapsed since 16 August 2012 and certainly a longer period since 24 July 2012. Ms Cooper has confirmed that no response has been received from any of the plaintiffs, Mr Allen, Mr Brown, Mr Haddon, Mr Howley, Mr Johnson, Ms Leeks, Mr Martin or Mr Smith. In addition, certainly no opposition to any of the current applications has been filed in this Court.
[7] Turning to the individual applications, it is clear from each of the supporting affidavits that for quite a considerable period of time in these cases a number of efforts have been made by Ms Cooper to make contact with the individual plaintiffs, but without success. Despite her efforts Ms Cooper confirms that she has been quite unable to obtain recent instructions from any of these plaintiffs.
[8] Under all the circumstances here, and given that there has been no objection or opposition raised to any of the current applications from the individual plaintiffs, I am satisfied that orders should be made under r 5.41(1) declaring that Ms Cooper has ceased to be the solicitor on the record for the individual parties in these proceedings.
[9] That said, the following orders are now made:
(a) With respect to proceeding 2008-485-2507 an order is now made declaring that Ms Cooper has ceased to be the solicitor on the record for the plaintiff Robbie James Allen in that proceeding.
(b)With respect to proceeding 2008-485-1683 an order is now made declaring that Ms Cooper has ceased to be the solicitor on the record for the plaintiff Anthony Brown in that proceeding.
(c) With respect to proceeding 2008-485-1280 an order is now made declaring that Ms Cooper has ceased to be the solicitor on the record for the plaintiff Mark Taiaroa Haddon in that proceeding.
(d)With respect to proceeding 2008-485-2207 an order is now made declaring that Ms Cooper has ceased to be the solicitor on the record for the plaintiff Larry Brent Howley in that proceeding.
(e) With respect to proceeding 2006-485-2746 an order is now made declaring that Ms Cooper has ceased to be the solicitor on the record for the plaintiff Ian Douglas Johnson in that proceeding.
(f) With respect to proceeding 2006-485-1741 an order is now made declaring that Ms Cooper has ceased to be the solicitor on the record for the plaintiff Diana Maree Leeks in that proceeding.
(g)With respect to proceeding 2008-485-2384 an order is now made declaring that Ms Cooper has ceased to be the solicitor on the record for the plaintiff Joseph Ellis Martin in that proceeding.
(h)With respect to proceeding 2007-485-0058 an order is now made declaring that Ms Cooper has ceased to be the solicitor on the record for the plaintiff Leslie Charles Smith in that proceeding.
[10] Now that appropriate orders have been made pursuant to r 5.41, counsel is reminded of her obligation pursuant to r 5.41(3) regarding service of these orders.
‘Associate Judge D.I. Gendall’
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