An v Solicitor T

[2017] NZHC 370

ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF THE PARTIES.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-001739 [2017] NZHC 370

BETWEEN

AN

First Applicant

DN
Second Applicant

AND

SOLICITOR T Respondent

Hearing:	1 March 2017
Appearances:	Second Applicant in Person Phillippa Fee and Russell Stewart for the Respondent
Judgment:	8 March 2017

JUDGMENT OF MOORE J

This judgment was delivered by me on 8 March 2017 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

AN & ANOR v SOLICITOR T [2017] NZHC 370 [8 March 2017]

Introduction

[1]      The second applicant, DN, wishes to release his wife or, at the least, modify the conditions under which she is compulsorily detained in a psychogeriatric residential unit in Auckland.

[2]      For the last 18 months he has initiated numerous and varied proceedings against a range of parties.  The present proceedings are brought against the solicitor appointed by the Court to represent his wife.  He seeks interim relief in the form of orders releasing his wife and other related orders.

Procedural history

[3]      In  order  to  properly  appreciate  the  context  and  focus  of  the  present application it is helpful to set out the procedural history as well as the progress of other parallel, but separate, proceedings. This exercise has not been straight forward. It has required the examination of a number of voluminous files containing lengthy affidavits and numerous documentary exhibits.

[4]      DN has been married to AN for over 40 years.   In August 2015 AN was admitted to Middlemore Hospital with a broken arm.  While in hospital a consultant psychiatrist  assessed  her  and  diagnosed  her  as  suffering  from  dementia.    He concluded she was susceptible to undue influence and decision making and he harboured concerns regarding her social care situation in the family home.

[5]      From October 2012 DN held an enduring power of attorney in respect of AN’s care and welfare.  The couple’s son, BN, held a power of attorney in respect of AN’s property.

[6]      On 16 October 2015, as a result of the hospital’s concerns, a compulsory inpatient treatment order was made under s 30 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 requiring AN to remain at Middlemore Hospital.

[7]      On  15  December  2015  Mr  Hewgill,  a  social  worker  then  employed  by Counties Manukau District Health Board (“the DHB”), brought two applications in the Family Court seeking the following orders:

(a)      interim and final personal orders requiring AN to reside in a secure dementia care unit at the Hayman Care Home in Wiri and to receive all medical care and attention directed by her medical practitioners; and

(b)an order revoking the powers of attorney made in favour of DN and his son.

[8]      On 8 January 2016 the defendant, Solicitor T, a barrister and solicitor of this Court, was appointed by the Family Court under s 65 of the Protection and Personal Property Rights Act  1988  (“the  PPPR Act”) to  represent AN  in  relation  to  the personal care application and to provide the Court with a report pursuant to his appointment.

[9]      Solicitor T’s report was completed later in January 2016.  He concluded that AN did not have the capacity to make decisions on issues of welfare or property matters and that it was appropriate for interim orders to be made under the PPPR Act directing that AN reside at the Hayman Care Home and that she receive all necessary medical attention.

[10]     On 26 January 2016 Judge Rogers in the Family Court directed that the applications and supporting documents, including Solicitor T’s report, be served, amongst  others,  on  DN.    She also  directed a  hearing date be allocated  for the application for interim orders.

[11]     On 11 February 2016 DN filed a notice of intention to appear together with a supporting affidavit opposing the detention of his wife at Middlemore Hospital.

[12]     On 17 February 2016 the application for interim orders were heard before

Judge Mahon.  Solicitor T supported the making of the interim orders but submitted

that the proposed restriction on DN’s visits with his wife should be increased from contact for only one hour twice a week to contact between the hours of 10:00 am and

2:00 pm from Monday to Friday.

[13]     On 19 February 2016 Judge Mahon issued an interim decision granting the application and on 10 March 2016 gave his reasons in a judgment of that date.

[14]     On 6 April 2016 DN filed an application in the Family Court seeking, among other  orders,  that  Solicitor  T’s  appointment  as  AN’s  attorney  be  revoked.    In particular he complained that Solicitor T had failed:

(a)       to uphold AN’s rights as provided under the PPPR Act; (b)     to provide an appropriate report to the Court;

(c)       to adequately represent AN; and

(d)in his obligations as a lawyer by acting and continuing to act “dishonourably towards AN … and … failed to uphold the rule of law and facilitate the administration of justice in New Zealand …”, alleging professional misconduct through breaches of ss 4 and 7 of the Lawyers and Conveyancers Act 2006.

[15]     On 19 April 2016 Judge Skillern determined that DN’s application was in fact

a complaint and ordered Solicitor T to provide a response.   This was received on

3 May 2016.

[16]     DN also made a complaint to the New Zealand Law Society alleging bias by Solicitor T and his failure to carry out his duties in a proper manner.   The Law Society determined not to take any action, apparently because it concluded DN had a more appropriate remedy through the Family Court.   Following this the Family Court dismissed the complaint.

[17]     On  28  July  2016  the  application  for  final  orders  was  heard  before

Judge Mahon.  The Judge received submissions from AN’s counsel (Solicitor F), as

well as Solicitor T.   Apparently, despite being aware of the fixture and filing submissions DN did not attend this hearing.

[18]     Final orders were made under the PPPR Act on 17 August 2016.   These orders revoked the enduring powers of attorney.

[19]     Interspersed throughout this chronology has been a startling and persistent series of applications brought by DN in this Court, the Court of Appeal and the Supreme Court.  For example, between September 2015 and March 2016 DN made six unsuccessful attempts to obtain a writ of habeus corpus from this Court seeking the release of AN from the DHB’s care and the Hayman Care Home.   This was followed by an unsuccessful appeal to the Court of Appeal and an unsuccessful attempt to seek leave to appeal in the Supreme Court.

[20]     As a result of the final orders made on 17 August 2016 DN filed an appeal against the care and residential orders as well as the order revoking the powers of attorney made in favour of DN and his son (“the PPPR appeal”).1

[21]     On 11 October 2016 Woodhouse J refused DN’s application to consolidate the claim against the DHB with the PPPR appeal.2  Amongst his reasons for doing so were that if the appeal was successful it would likely have a bearing on at least some of the claims made in the substantive proceedings.   He directed that the appeal should be determined first.  Furthermore, against what appears to have been DN’s objections, he appointed Solicitor T as AN’s lawyer on the appeal.   His Honour

directed that the appeal would be heard on 22 February 2017.   Other timetabling orders were made.

[22]     On 15 November 2016 Palmer J was confronted by an application filed by DN to dismiss and stay his own appeal.  The Minute recording that hearing3 reveals that his Honour made it clear to DN that while he was entitled to abandon his appeal the consequence would be that the decisions in the Family Court he sought to appeal

would stand.  It appears there was a discussion at the case management conference

1      N v Hewgill (Counties DHB) CIV-2016-404-2273.

2      Minute of Woodhouse J dated 11 October 2016, CIV-2016-404-2273.

3      Minute of Palmer J dated 15 November 2016, CIV-2016-404-2273.

about whether DN would abandon his appeal and, if so, on what terms.   The suggested proposal was as follows:

(a)       DN would abandon his appeal as well as the substantive proceeding

(CIV-2016-404-1629);

(b)      the DHB would agree not to pursue costs in either proceeding;

(c)       DN and the DHB would agree to mediate their disagreements over

what was in AN’s best interests.

[23]     His Honour directed that if DN wished to abandon his appeal he was to file and serve a memorandum to that effect by Monday, 21 November 2016.

[24]     DN filed a memorandum to abandon and on 23 November 2016 Heath J

recorded that abandonment and vacated the fixture.4

[25]     As a consequence it appears the present proceedings against Solicitor T are the only proceedings remaining.5

[26]     The causes of action contained in the statement of claim appear to be based in tort.  In particular, DN alleges Solicitor T did not act in the best interests of AN, he acted unlawfully, provided false and misleading information in his reports and as a consequence caused AN damage by lowering her quality of life and causing her pain, suffering and emotional distress.  By way of relief DN requires Solicitor T to:

(a)       undo any damage that can be undone;

(b)      award damages and costs for that which cannot be undone; and

(c)       award compensation for suffering.

4      Minute of Heath J of 23 November 2016, CIV-2016-404-2273.

5      AN & Anor v Solicitor T, CIV-2016-404-001739.

[27]     In his defence Solicitor T denies the allegations and more particularly claims that the Family Court revoked DN’s enduring power of attorney and that the claim is an abuse of process because it constitutes a collateral attack to the orders of the Family Court.    Furthermore,  by way of  defence,  Solicitor T  says  that  DN  has suffered no loss.

The present application

[28]     DN brings an interlocutory application in the form of a mandatory injunction seeking the following interim orders:

“(a)     free [AN] from her imprisonment and terms and conditions;

(b)      restore [AN]’s EPOA documents in favour of [DN] and [BN] for

property & Care & Welfare;

(c)       release [AN] from compulsory provided care; (d)  any other orders the Court sees fit;

(e)       award  costs  (We  waiver  these  for  this  hearing  if  the  defendant supports the orders.).”

[29]     The application also includes a declaration by DN that “… we will pay for any damages to compensate the defendant for any damage sustained through the injunction.”

[30]     It was plain to me in the course of the hearing, and as the protracted and convoluted history of this and other related matters reveals, DN is deeply concerned about the welfare of his wife.  I am in no doubt his concerns are sincerely held.  This is a dreadfully sad case and DN struck me as a decent man who is thoroughly frustrated by his inability to achieve what he perceives as justice for his wife of many years.  In submissions to me he submitted that under his wife’s present care arrangements she is rapidly deteriorating.  However, he is confident that if she was taken from this environment, even temporarily, her condition would improve.   He says he remains open to negotiate appropriate care arrangements and terms with the DHB and, indeed, it was that willingness which no doubt led Palmer J to make the orders he did.

[31]     However, having carefully considered DN’s written submissions and the very extensive oral submissions he made in the course of the hearing I am not prepared to grant the orders he seeks.  My reasons follow.

[32]     First,  DN  seeks  damages  against  Solicitor T arising  out  of  Solicitor T’s representation of AN in the Family Court.   However, the orders he seeks are not enforceable as against Solicitor T.  They are not orders within Solicitor T’s power or control to comply with or to fulfil in the event the Court was to grant the application. Put simply, Solicitor T has no power or authority to comply.  For example, Solicitor T is not in a position to “free” AN “… from her imprisonment terms and conditions”. Nor does he have the power to release her from “compulsory provider care”.  Only the  Family  Court  or  this  Court  on  appeal  enjoys  such  a  power.    Furthermore, Solicitor T is not empowered to restore the enduring powers of attorney.   This is because those authorities were revoked by the Family Court and not by Solicitor T.

[33]     Secondly, the care and residence orders made under the PPPR Act, which DN in the substantive claim appears to be seeking to set aside, at least in part, were orders made by the Family Court.  DN has abandoned his appeal.  He is now out of time to bring a fresh appeal.   Thus the decision of the Family Court continues to stand.

[34]     Furthermore, having regard to the lengthy procedural history involving the filing by DN of multiple proceedings designed to overturn the Family Court’s orders, the present application must be viewed as a collateral attack on those decisions.

[35]     Applying the well-known principles6  applicable to the making of the sort of interim order DN seeks I am not satisfied on the material before me that DN has any real prospect of succeeding.  Furthermore, to grant an injunction on the terms sought would have the effect of reversing the Family Court’s orders in circumstances where

DN has expressly abandoned his appeal rights.

6      American Cyanamid Co v Ethicon Limited [1975] AC 396 (HL); Shotover Gorge Jet Boats Limited  v  Marine  Enterprises Limited  [1984] 2 NZLR 154; Parnell  Property  Investments Limited  v  Bank  of  New  Zealand  HC Auckland  CIV-2010-404-007186, 28  February  2011; Klissers Farmhouse Bakery [1985] 2 NZLR 129 ; Wellington International Airport Limited v Air New Zealand Limited HC Wellington CIV-2007-485-1756, 30 July 2008.

[36]   Finally, in the circumstances I am amply satisfied that the balance of convenience operates in maintaining the status quo and the overall justice of the case requires the same consequence.

[37]     DN  is,  however,  entitled  to  continue  to  prosecute  his  substantive  claim although I note that the defendant has brought concomitant applications for summary judgment and strike out.  On 18 October 2016 Gilbert J directed those applications should be determined after the appeal had been decided.  These applications were adjourned by the Judge for further mention on 16 May 2017 by which time his Honour expected that the outcome of the appeal would be known.   Now that the appeal has been abandoned by DN I can see no reason why the defendant’s applications cannot be brought on for earlier determination if that is the defendant’s wish.

Result

[38]     The application for interim relief is refused.

[39]     The defendant, as the successful party, is entitled to costs.  If the defendant wishes to pursue an order for costs he is to file a memorandum within 15 working days of the date of this judgment and the defendant is to file any submissions in

response five working days thereafter.

Moore J

Solicitors:

Ms Fee, Auckland

Copy to:

The Applicants