Corbett v Patterson
[2011] NZCA 649
•15 December 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA303/2011 [2011] NZCA 649 |
| BETWEEN JOHN HILLARY CORBETT |
| AND BRUCE REGINALD PATTERSON AND ROBERT CORBETT WESTERN |
| Hearing: 29 November 2011 |
| Court: Ellen France, Harrison and Wild JJ |
| Counsel: Appellant in person |
| Judgment: 15 December 2011 at 11.30 am |
JUDGMENT OF THE COURT
A The application for leave to adduce further evidence in support of the appeal is dismissed.
BThe appellant must pay the respondents’ costs as for a standard application on a band A basis and usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
By an “up-dated” application of 7 October 2011, Mr Corbett seeks leave to adduce further evidence in support of his appeal.[1] Rule 45 of the Court of Appeal (Civil) Rules 2005 governs this application. The requirements are that the evidence be fresh, credible and cogent. Evidence is not fresh if it could, with reasonable diligence, have been adduced at the hearing in the High Court.[2]
[1]His appeal is against a decision of Priestley J in the High Court: Corbett v Western HC Auckland CIV-2010-404-1495, 18 April 2011.
[2] Erceg v Balenia [2008] NZCA 553 at [15].
Priestley J held that Mr Corbett is an incapacitated person in terms of rr 4.29 and 4.35 of the High Court Rules, and appointed Mr Simon Jefferson, an Auckland barrister, as Mr Corbett’s litigation guardian for Mr Corbett’s proceeding in the High Court. Priestley J made that finding and appointment upon an application made by the defendants to Mr Corbett’s proceeding. Those defendants are the respondents to this appeal. They are the trustees of the JM and JS Corbett Family Trust (the Family Trust). Mr Corbett commenced his proceeding against the trustees on 20 March 2010. It was the second time he had sued the trustees.[3]
Background
[3]The first proceeding was Corbett v Bolesworth HC Auckland CIV-2005-404-7172, 9 September 2009, commenced by Mr Corbett in December 2005. That proceeding was struck out by Woodhouse J in a judgment delivered on 9 September 2009. The Judge held that Mr Corbett’s claims had been discharged by a binding full and final settlement recorded in a “joint memorandum of counsel regarding settlement of proceeding” dated 24 January 2007.
The Family Trust was established by Mr Corbett’s parents for Mr Corbett and his sister. We understand the nub of Mr Corbett’s claim in the High Court to be that undue influence from other members of the family resulted in Mr Corbett’s parents not implementing what they really intended through their wills and a memorandum of wishes relating to the Family Trust. Mr Corbett claims his parents’ true intention was an equal distribution between Mr Corbett and his sister. The wills and memorandum effect a two-thirds to one-third distribution in the sister’s favour. We have drawn this understanding from Priestley J’s judgment, rather than from Mr Corbett’s amended statement of claim.[4]
[4]We have relied particularly on [20] of Priestley J’s judgment. The Judge notes at [24] that Mr Corbett’s amended statement of claim is 87 pages long.
Mr Corbett’s dissatisfaction with the way his parents’ affairs were handled has prompted him to bring other proceedings in the High Court. For example, Priestley J refers to a proceeding Mr Corbett has brought against Mr Bruce Dell, a solicitor who acted for his father, in particular advising him about his investments.[5] We refer to Mr Dell further in [19] below.
[5] At [22].
It is for the conduct of Mr Corbett’s litigation against the trustees that Priestley J appointed Mr Jefferson to protect and advance Mr Corbett’s best interests. Mr Corbett’s appeal to this Court is only against Priestley J’s finding that Mr Corbett is incapacitated, and the appointment of Mr Jefferson as Mr Corbett’s litigation guardian. As will emerge, in advancing this application, Mr Corbett overlooks the narrow compass of his appeal.
The further evidence
The further evidence Mr Corbett seeks to adduce falls into three categories. We will outline and rule on each in turn.
Cross-examination of Dr Brinded
First, Mr Corbett wants to cross-examine Dr Philip Brinded. Dr Brinded is the consultant forensic psychiatrist who was appointed by the High Court to undertake a medical examination of Mr Corbett and report his findings and opinion to the High Court, to assist it in deciding the respondents’ application. Pursuant to r 9.33 of the High Court Rules, Mr Corbett could have asked Priestley J for permission to cross-examine Dr Brinded on the three affidavits which comprised his report to the High Court. He did not do so. In that respect, we do not agree with Mr Baird’s submission that r 9.33 applies only if both parties do not agree to accept a medical report ordered under s 100(1) of the Judicature Act 1908. If either or any party does not agree to accept such a report, then the resulting position is that “the parties do not agree to accept [the] report”, and s 9.33 is engaged.
We have not overlooked that Mr Corbett filed or placed before the High Court various documents countering the opinion expressed by Dr Brinded. We need not go into those, because the point is that Mr Corbett could have sought the Judge’s permission to do what he now seeks to do – cross-examine Dr Brinded on his affidavits. But he did not.
Mr Corbett has explained to us that he did not appreciate at the time that he could have applied to Priestley J to cross-examine Dr Brinded. We gather that Mr Corbett did not inquire about his ability to cross-examine Dr Brinded, because he was relying on obtaining a second opinion. He did obtain one. It was from Dr Trevor Young, and we refer to it in [11] below. Whilst we accept this explanation, it does not excuse Mr Corbett’s failure to cross-examine Dr Brinded at the hearing before Priestley J.
Thus, cross-examination of Dr Brinded would not adduce “fresh evidence”.
Further, evidence from Dr Brinded under cross-examination is unlikely to be cogent. We do not know what questions Mr Corbett would want to put to Dr Brinded, and we therefore do not know what answers the Doctor might give. But we accept Mr Baird’s submission that it is highly unlikely that Dr Brinded would depart in any significant way from the careful and thorough assessment and opinion contained in his report to the High Court. It is significant that Dr Brinded took the trouble to swear a third affidavit, replying to an affidavit sworn by Mr Corbett’s general practitioner, Dr Trevor Young, in which Dr Young criticised Dr Brinded’s opinion. In his judgment, Priestley J was strongly critical of Dr Young’s affidavit. The Judge’s views included these:[6]
… [Dr Young’s] affidavit is clearly partisan and, although it purports to attack some of Dr Brinded’s conclusions, he does not have the necessary basis of specialist professional expertise to do that. …
…
… What Dr Young fails to do on an objective or professional basis is to focus on the plaintiff’s ability to conduct litigation in a rational and discerning way. Dr Young cannot do that because he appears to have swallowed, hook, line, and sinker, his patient’s assessment of his litigation grievances.
[6] At [65] and [68].
Accordingly, this first category of proposed further evidence does not meet the requirements of r 45, and we decline leave for its admission on this appeal.
Telephone and fax records
Secondly, Mr Corbett seeks an order from this Court compelling the first of the two respondent trustees, Mr Bruce Patterson, to deliver up for the appeal:
(a)a record, showing dates and times of day with his receiving area code phone number, in relation to telephone calls alleged to have been made by Mr Corbett to Mr Patterson’s office (at Duncan Cotterill, Solicitors), before 26 May 2006; and
(b)copies of time dated faxes received by Mr Patterson from Mr Corbett prior to 26 May 2006.
Our understanding is that Mr Patterson alleged, in the first proceeding Mr Corbett brought against the trustees, that Mr Corbett had been making nuisance calls and sending nuisance faxes to Mr Patterson before 26 May 2006. In his oral submissions to us Mr Corbett asserted that that allegation was “totally untrue”. He told us that he knew he had never done that. As a beneficiary of the Family Trust, Mr Corbett maintained he was entitled to inspect the telephone and fax records that he was seeking to adduce in support of this appeal. He added that Mr Patterson, as a trustee with sworn duties to uphold the truth, should be totally transparent.
At that point in Mr Corbett’s submissions, we inquired how the telephone and fax records were relevant to this appeal. Mr Corbett’s reply was that Dr Brinded had expressed the opinion that Mr Corbett did not understand his legal rights and he was demonstrating that he did.
We are satisfied that the telephone and fax records Mr Corbett seeks to adduce are irrelevant to this appeal. That is because they will not assist this Court in deciding whether Priestley J was in error in holding that Mr Corbett was an incapacitated person, and appointing for him a litigation guardian.
If these telephone and fax records had any relevance, it was to Mr Corbett’s first proceeding against the trustees of the Family Trust. We have already made the point that Mr Corbett seems not to understand that this appeal has nothing to do with the issues in that first proceeding, but is concerned only with the correctness of Priestley J’s finding that Mr Corbett is an incapacitated person and his appointment of a litigation guardian for Mr Corbett. A further point is that the first proceeding was settled.[7] Quite apart from the irrelevance of this second category of proposed evidence, it is not now open to Mr Corbett to seek to reopen what was settled in the first proceeding.
[7] As detailed in fn 3 above.
We decline leave to adduce this second category of proposed further evidence.
Audio recording of interview
Thirdly, Mr Corbett seeks to adduce an audio recording of an interview of Mr Bruce Dell, Solicitor, conducted by the Legal Complaints Review Officer in early 2009. Mr Dell was a former trustee of the Family Trust. He was interviewed about the circumstances in which he took instructions from Mr Corbett’s father, the late Mr Jack Corbett, for his penultimate will in 2004 and for the memorandum of wishes the late Mr and Mrs Corbett signed, also in 2004. Again, we asked Mr Corbett to explain how the audio recording was relevant to this appeal. It was apparent from Mr Corbett’s answer that he challenges the veracity of what Mr Dell said to the interviewer.
We are satisfied that the audio recording is irrelevant to what will be in issue in this appeal. We decline leave to adduce this third category of proposed further evidence.
Result and costs
The result of our declining Mr Corbett leave to adduce any of the further evidence is that his application is dismissed.
Mr Corbett must pay the respondents’ costs as for a standard application on a band A basis and usual disbursements.
Solicitors:
Quinn Law, Auckland for Respondents
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