Corbett v Voulk

[2015] NZHC 2379

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-1676 [2015] NZHC 2379

BETWEEN

JOHN HILLARY CORBETT

Plaintiff

AND

ROBERT JAMES VOULK & IAIN MICHAEL HUTCHESON Defendants

Hearing:	28 September 2015
Appearances:	No appearance for plaintiff Ms Divich and Ms Waldron for first defendant Mr Napier for the Second defendant
Judgment:	30 September 2015

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on

30.09.15 at 4 pm, pursuant to

Rule 11.5  of the High Court Rules.

Registrar/Deputy Registrar

Date……………

CORBETT v VOULK & ANOR [2015] NZHC 2379 [30 September 2015]

[1]      This matter was listed for a defended hearing before me on 28 September

2015.   Both of the defendants had filed applications to strike out the plaintiff’s

statement of claim and to dismiss the proceeding.

[2]      The litigation is brought against the solicitor and barrister respectively who provided legal  advice  and  services  to  him  in  regard  to  proceedings  he brought concerning  the  JM  and  JS  Corbett  Family Trust  which  was  established  by  Mr Corbett’s late parents in July 1998.

[3]      The applications were brought on two broad grounds.  The first was that the statement of claim was defective.   It was excessively lengthy; it was not accurate, clear and intelligible and did not provide sufficient particulars to enable the defendants  to  be  fairly  informed  of  the  case  to  be  met.    As  well  it  contained extensive pleading of evidence including documents such as emails and there was no separate identification of which part of the case applied to each defendant.  It was impossible to discern what the elements of the cause/s of action were which the plaintiff intended to bring.  As a result the Court was invited under r 15.1 to strike out on the proceeding on the grounds set out therein which are as follows:

[jpd pick up from napier]

[4]      Mr Corbett did not appear.  He had provided at least one memorandum for the Court to consider.  The reasons he gave for not attending had been foreshadowed in an application for adjournment which he made last week on the grounds that he was too unwell to appear.   Venning J directed that the matter was to proceed notwithstanding the application for adjournment.   Amongst other things the Judge noted that there was no independent verification of Mr Corbett’s health position.

[5]      Prior to the hearing after having read the statement of claim I formed a view that Mr Corbett may well be a party who came within the provisions of r 4.30 of the rules which deals with an incapacitated person and the necessity for such persons to be represented by a litigation guardian.

[6]      At the commencement of the hearing I invited Ms Divich and Mr Napier to address me concerning that matter which they did.  Ms Divich told me that she was aware that in other proceedings which Mr Corbett had brought a finding had been made that Mr Corbett was an incapacitated person within the meaning of r 4.29

HCR.

[7]      The decision in which Mr Corbett was judged to be an incapacitated person was Corbett v Western.1     In that case Priestley J appointed a litigation guardian, Mr S Jefferson QC to represent Mr Corbett in litigation involving the JM and JS Corbett Family Trust to which I have made reference above.  Mr Corbett appealed against that decision unsuccessfully.2

[8]      In the first instance decision it was noted3  that in terms of r 4.30(1) it is obligatory for an incapacitated person to have a litigation guardian with the Court retaining a discretion to “otherwise order”.   In his judgment Priestley J noted that judicial caution is central when applying the provisions relating to appointment of litigation  guardians  that  Priestley  J  referred  to  the  assumption  that  a  litigant, including a litigant in person, is competent:4

From that starting point there is an enquiry as to whether the litigant is able to understand the nature of the litigation, its possible outcome and its associate risks.5

[9]      Priestley J considered that it was of importance to have regard to the effect on the plaintiff of the making of an order of this kind.  He said:

[96]. As the plaintiff is a self-represented litigant, the appointment of a litigation guardian especially to stand in his stead in these proceedings will have a profound and disempowering effect. It is a fundamental tenet that any person may bring or defend a claim in person in any court.

[10]     The Judge went on to note6 that the right to present ones own case is not an absolute one because a mentally impaired self-represented litigant will run the real

1 Corbett v Weston (2011) 20 PRNZ 492.

2 Corbett v Patterson and Western [2014] NZCA 274.
3 At [5].
4 Erwood v Maxted [2008] NZCA 139.
5 At [5].

6 At [97].

risk of subverting his own case.   Also consideration of the best interests of the opposing parties may require that  a litigation guardian be appointed.   This last reference,  it  would  seem,  is  an  allusion  to  the  well-known  phenomenon  of defendants being locked in litigation which results in them suffering economic damage through the costs that they incur in attempting to resist ill judged meritless litigation which nonetheless they are constrained to oppose.

[11]     In its judgment, the Court of Appeal declined the appeal that Mr Corbett brought and in doing so noted, amongst other things, that the appointment of a litigation guardian was in his interests as well of those of the opposing parties.7

Discussion

[12]     The Court can direct an appointment of a litigation  guardian of its own motion.8

[13]     It was the submission of Mr Napier that in the circumstances of the present case no good purpose would be served by appointing a litigation guardian.   He expressed the opinion that Mr Corbett’s claim was meritless and that the defendants both had available to them valid grounds which they could put forward in support of an application for a strike out order based upon the fact that the claims were statute barred.

[14]     In my view the utility of making the orders in the substantive proceedings is not relevant at this point of the enquiry.  It is a necessary antecedent step before the Court can make substantive orders to ensure that there has been a fair process.  There are strong grounds for supposing that in the circumstances of this case that because of Mr Corbett’s apparent incapacity he is not in a position to adequately advance his own cause.   Mr Napier also said that making the strike out orders sought was preferable otherwise the defendants would be exposed to greater cost through the

proceedings continuing, albeit under the possible control of a litigation guardian.

7 At [50].

8 Rule 4.35(4)(a).

[15]     I do not consider that arguments based upon utility and the advantage or disadvantage to the opposing side are relevant at this point.  I am firmly of the view that the appointment of a litigation guardian must be considered.

[16]     Because Mr Corbett was not present at the hearing on 28 September, he did not have the opportunity to make comment on the proposal of an appointment under r 4.30.   He ought to be given such an opportunity.   Mr Corbett is to make any comments that he wishes to make in written form in a memorandum not exceeding

12 pages within ten working days of the date of this judgment.  The Registrar is to place this proceeding in the Chambers List at 2.15 p.m. on 6 November 2015 for further consideration.

[17]     The costs of the applications which the applicants have brought are reserved.

J.P. Doogue

Associate Judge