Attorney-General v Film and Literature Board of Review

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-193

[2022] NZHC 2185

BETWEEN
THE ATTORNEY-GENERAL

Appellant

AND

FILM AND LITERATURE BOARD OF REVIEW

First Respondent

KALIM DENNIS
Second Respondent

ROBERT KELLS MEYER
Third Respondent

MATTHEW LOUIS GAVIN
Fourth Respondent

DEREK JOHN MORRISON

Fifth Respondent

On the papers:

Counsel:

M J Lillico and T C Didsbury for Appellant E J Watt for First Respondent

N A Pointer and A J Greaves for Second Respondent T R Nicholls for Third Respondent

P Hamlin for Fourth Respondent M J Smit for Fifth Respondent

Judgment:

30 August 2022

JUDGMENT OF CHURCHMAN J

[Leave to withdraw]

THE ATTORNEY-GENERAL v FILM AND LITERATURE BOARD OF REVIEW [2022] NZHC 2185
[30 August 2022]

Introduction

[1] Mr Nicholls is counsel on the record for the third respondent in these proceedings. He has applied under r 5.41 of the High Court Rules 2006 (HCR) for leave to withdraw as counsel.

[2] That application is supported by an affidavit which details the difficulties that he has had in contacting the third respondent who has not responded to communications to him from Mr Nicholls since 13 December 2021.

The law

[3] HCR 5.41 specifically relates to withdrawal of a solicitor on the record. The High Court Rules do not set out a parallel process in relation to counsel who wish to withdraw. However, a practice has developed for counsel to seek the leave of the Court. This is identified in the case of Burgess v Monk (No. 4).1 The approach articulated by Heath J in that case continues to be applied.2

[4] In Burgess v Monk, Heath J had regard to the principle set out in the Lawyers and Conveyancers Act (Lawyers, Conduct and Client Care) Rules 2008 noting that, in accordance with r 4.2, a lawyer who has been retained by a client must complete the regulated services required by the client under the retainer unless:

(a)the lawyer is discharged from the engagement by the client; or

(b)the lawyer and the client have agreed that the lawyer is no longer acting for the client; or

(c)the lawyer terminates the retainer for good cause and after giving reasonable notice to the client specifying the grounds of termination.

1 Burgess v Monk (No. 4) [2017] NZHC 2618.
2 See Criffel Deer Limited v ANZ Bank New Zealand Limited [2022] NZHC 2175.

[5] Heath J concluded that, because of the application by counsel to withdraw occurred on the 19th day of a trial, interests relating to the administration of justice weighed heavily in the balance as a factor to be considered and, on the basis of this consideration, leave to withdraw was refused.

[6] Rule 4.2.1(d) of the Lawyers and Conveyancers Act (Lawyers, Conduct and Client Care) Rules 2008 provides that “good cause” in terms of r 4.2(c) includes “the client failing to provide instructions to the lawyer in a sufficiently timely way”.

[7] The failure by the third respondent to respond to attempts by Mr Nicholls to communicate with him over a lengthy period of time amounts to good cause.

Outcome

[8] I grant leave to Mr Nicholls to withdraw as counsel on the record in this matter on the basis that he has established good cause to do so.

Churchman J

Solicitors/Counsel:
Crown Law Office, Wellington for Appellant E J Watt, Wellington for First Respondent
Legal Services Commissioner, Wellington for Second and Fourth Respondents T R Nicholls, Barrister, Christchurch for Third Respondent
M J Smith, Christchurch for Fifth Respondent

CaseChat Overview and Summary

The High Court of New Zealand heard an application for leave to withdraw as counsel in the matter of the Attorney-General versus the Film and Literature Board of Review. The third respondent in the proceedings, represented by Mr Nicholls, had not responded to attempts by Mr Nicholls to contact him since 13 December 2021. Mr Nicholls sought leave to withdraw under rule 5.41 of the High Court Rules 2006, which deals with the withdrawal of a solicitor on the record. The court noted that there is no parallel process in the High Court Rules for counsel to withdraw, but a practice has developed for counsel to seek leave from the court, as articulated in Burgess v Monk. The court considered whether Mr Nicholls had good cause to withdraw, as outlined in rule 4.2 of the Lawyers and Conveyancers Act (Lawyers, Conduct and Client Care) Rules 2008, which states that a lawyer may terminate the retainer for good cause if the client fails to provide instructions in a timely manner.

The court granted leave for Mr Nicholls to withdraw as counsel on the record, finding that the third respondent's failure to respond to communications over a lengthy period of time constituted good cause. The court acknowledged the principle set out in Burgess v Monk that the administration of justice is a factor to be considered when granting leave to withdraw, but in this case, the failure to communicate by the third respondent was a significant factor in favour of granting leave. The court also noted that the withdrawal occurred on the 19th day of a trial, but this did not outweigh the other factors in the case.

The court granted leave for Mr Nicholls to withdraw as counsel on the record in this matter on the basis that he had established good cause to do so. The court acknowledged that the failure by the third respondent to respond to attempts by Mr Nicholls to communicate with him over a lengthy period of time amounted to good cause. The court found that the principle set out in Burgess v Monk was applicable in this case, and that the administration of justice was a factor to be considered when granting leave to withdraw. However, the failure to communicate by the third respondent was a significant factor in favour of granting leave.

The court granted leave for Mr Nicholls to withdraw as counsel on the record in this matter. The court noted that the third respondent had not responded to attempts by Mr Nicholls to communicate with him since 13 December 2021, and that this amounted to good cause. The court acknowledged that the withdrawal occurred on the 19th day of a trial, but this did not outweigh the other factors in the case. The court found that the principle set out in Burgess v Monk was applicable in this case, and that the administration of justice was a factor to be considered when granting leave to withdraw. However, the failure to communicate by the third respondent was a significant factor in favour of granting leave.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established