Corbett v Western and Patterson
[2010] NZHC 1265
•25 May 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-001495
BETWEEN JOHN HILLARY CORBETT Plaintiff
ANDROBERT CORBETT WESTERN AND BRUCE REGINALD PATTERSON AS TRUSTEES OF THE J M AND J S CORBETT FAMILY TRUST Defendants
Hearing: 25 May 2010
Counsel: Plaintiff in person to oppose
Chris J R Baird for defendants in support
Judgment: 25 May 2010
[ORAL] JUDGMENT OF HUGH WILLIAMS J.
An order is made requiring Mr Corbett to submit himself to Dr Brinded’s medical examination but otherwise the application for appointment of a litigation guardian is adjourned to a time and date to be fixed.
Solicitors:
Quinn Law ( H L Quinn), P O Box 25-608 St Heliers, Auckland
Copy for:
C J R Baird, P O Box 5444 Wellesley Street, Auckland 1141. Mr John H Corbett, plaintiff.
Case Officer: In[email protected]
JOHN HILLARY CORBETT V ROBERT CORBETT WESTERN AND BRUCE REGINALD PATTERSON AS TRUSTEES OF THE J M AND J S CORBETT FAMILY TRUST HC AK CIV-2010-404-001495 25 May
2010
Introduction
[1] This judgment deals with an application by the plaintiff, Mr Corbett, for an adjournment of the fixture set down for today, 25 May 2010, and applications by the defendants for the appointment of a litigation guardian for Mr Corbett and for him to be medically examined.
Background
[2] The background to the application is that on 12 March 2010 Mr Corbett filed a lengthy statement of claim in which - although it is not entirely clear – he seeks relief by way of the provision of documents held by the defendants as Trustees for the J M and J S Corbett Family Trust, plus orders following Trust property and for costs. Mr Corbett is generally doubtful that the defendants have been administering the affairs of the Trust in accordance with their obligations.
[3] The matter comes before the Court today because the defendants indicated to Associate Judge Gendall on 18 May 2010 that they intended to apply for the appointment of a litigation guardian to manage the substantive claim on Mr Corbett’s behalf. The Associate Judge’s Minute on that day sets out the background and also a timetable for the filing of documents leading to a fixture on
25 May 2010.
[4] The timetable required the defendants to file their application and supporting affidavits for the appointment of a litigation guardian by 21 May 2010 and, by the same day, to serve Mr Corbett with the papers. Although a timetable of that duration may be appropriate in some cases where the appointment of a litigation guardian is sought, it does not seem entirely apt for this application – for the reasons which follow.
[5] In mid-afternoon on Friday, 21 May 2010, Mr Corbett was served in accordance with Associate Judge Gendall’s direction with the application for appointment of a litigation guardian dated that day and for affidavits in support.
Together, the bundle of documents totals nearly 300 pages of material. Mr Corbett had earlier that day - before he was served with the application - filed an application for an adjournment until after 17 June 2010, the relevance of which date will later appear.
[6] When the matter came on for hearing on 25 May 2010 Mr Corbett renewed his application for an adjournment, partly because in his view it would enable issues to be dealt with by the Court of Appeal in its miscellaneous motions list on 15 June
2010 but also because he said he felt disadvantaged by the volume of material served on him only three or four days previously, including the weekend, and wished to have the opportunity to respond to it.
[7] The application first seeks the appointment of a barrister in Auckland as Mr Corbett’s litigation guardian on the ground that he is an “incapacitated person”. That term is defined in r 4.29 as follows:[1]
[1] High Court Rules 4.29.
4.29 Incapacitated person, litigation guardian, and minor defined
For the purposes of these rules,-
Incapacitated person means a person who by reason of physical, intellectual, or mental impairment, whether temporary or permanent, is –
(a) Not capable of understanding the issues on which his or her decision would be required as a litigant conducting proceedings; or
(b) Unable to give sufficient instructions to issue, defend, or compromise proceedings.
[8] Pursuant to r 4.35 the Court may appoint a litigation guardian if satisfied that the person for whom the appointment is made is an incapacitated person but, under sub-rule (3):
In deciding whether to appoint a litigation guardian, the Court may have regard to any matters it considers appropriate, including the views of the person for whom the litigation guardian is to be appointed.
[9] The affidavit evidence on which the litigation guardian application is made is, first, from a Dr Brinded, a consultant forensic psychiatrist in Christchurch He considered the other affidavits on which the application is based and certain other material to reach the view that Mr Corbett may come within the definition of a “incapacitated person”. He has not, however, ever spoken to Mr Corbett or examined him.
[10] Two other affidavits on which the appointment is sought are from the defendant trustees of the J M and J S Corbett Family Trust.
[11] Mr Patterson is a lawyer who sets out the reasons for the trustees taking the view that Mr Corbett is a “incapacitated person” and, in particular, says that the trustees are concerned that a relatively modest trust fund corpus of less than
$500,000 is being rapidly dissipated by the litigation which Mr Corbett has launched against the trust – not just this case but an earlier case as well. The trustees make clear that one of the discretionary final beneficiaries of the trust is Mr Corbett’s sister, Ms Bolesworth who, unfortunately, suffers from advanced Alzheimers disease and, because of the state of litigation against the trust, the trustees find it difficult to utilise any substantial part of the trust fund to distribute to Ms Bolesworth to assist her in her illness.
[12] Mr Patterson set out (at para 16) the reasons why he takes the view that a litigation guardian would be in Mr Corbett’s best interests. Mr Patterson said he believes that would properly protect Mr Corbett and his interests and assist him articulating concisely and succinctly his concerns and issues relating to the trust. Mr Patterson also says that would be more likely to result in resolution of the claims, presumably by the litigation guardian being more ready to settle any claims than Mr Corbett, a person who seems to require Court orders at every stage of a proceeding.
[13] Though Mr Patterson, however, comments on the dissipation of the trust corpus currently resulting from Mr Corbett’s litigation, there is no suggestion by
Mr Patterson that Mr Corbett’s claim is so weak as to run the risk of being struck out.
[14] Mr Patterson also puts before the Court a judgment of Woodhouse J of
9 September 2009, where Mr Corbett is the plaintiff and Ms Bolesworth and Messrs Western and Patterson the defendants. That claim was struck out by Woodhouse J on the basis that all issues relating to the claim had been settled at a judicial settlement conference on 24 January 2007.
[15] Mr Corbett has sought leave out of time to appeal to the Court of Appeal against Woodhouse J’s striking out of the claim and it is that application which is down to be heard by the Court of Appeal in the miscellaneous motions list on
15 June 2010. It is that date which leads to Mr Corbett’s application to adjourn this matter until at least 17 June 2010.
[16] Mr Western has also filed an affidavit saying that he, who knows Mr Corbett well, is also concerned that Mr Corbett may not be well mentally, and also takes the view that the appointment of a litigation guardian would be appropriate.
[17] A fourth affidavit is from Ms Bolesworth who retired as a trustee of the J M
and J S Corbett Family Trust as a result of the settlement agreement arrived at on
27 January 2007. She, too, knows Mr Corbett well and she, too, takes the view that he may be an incapacitated person, a view she supports by reference to a number of historical incidents. She bases her view on the Wikipedia definition of “Bi-polar disorder” which she attaches to her affidavit.
[18] The result of all of that is that it is necessary to consider whether it has been shown that Mr Corbett is a “incapacitated person”.
[19] He is clearly articulate, both orally and in writing. He has a view of the issues raised by the litigation - even though it may not be a view shared by the others who have made affidavits. Despite the views of the trustees - a lawyer and a family member – that Mr Corbett is a “incapacitated person”, it must be the case that those
are lay opinions based on the experience to which each of the deponents relates, and not the view of an appropriately qualified medical practitioner.
[20] Whilst the views of Messrs Patterson and Western and Ms Bolesworth deserve recognition, it could be said that reliance on a Wikipedia definition and the views of a lawyer and a family representative are insufficient to demonstrate to the Court that Mr Corbett is “not capable of understanding the issues on which his or her decision would be required as a litigant conducting proceedings” or that he is “unable to give sufficient instructions to issue, defend or compromise proceedings”.
[21] The solution to that problem can best be advanced by a medical examination.
[22] In order for a medical assessment to be made as to whether Mr Corbett falls within the definition of a “incapacitated person” as just related, it is thus necessary to have a medical examination. That is particularly the case because under r 4.35(3) the Court is empowered to take Mr Corbett’s views into account and he is certainly in a position where he is able to express them.
[23] The application for a medical examination is made pursuant to the Rules and s 100 of the Judicature Act 1908. The commentary to s 100 sets out the criteria applying to such applications.[2]
[2] McGechan on Procedure para J100.05 p3-154,
[24] As far as this application is concerned, the authorities note that:
If the plaintiff declines examination the defendant must satisfy the Court that it cannot properly prepare its case without a independent medical examination.
[25] Mr Corbett does not necessarily oppose the medical examination proposed, but requires his own psychiatrist, psychologist and/or doctor to be present. On that basis, he opposes the application as far as it relates to the proposed examination by Dr Brinded.
[26] Mr Corbett’s concerns, however, can be met because under s 100(2) a person required to submit to an independent medical examination “may have a medical practitioner chosen by that person attend that person’s examination”. It is therefore open to Mr Corbett to have a psychiatrist or psychologist of his choosing or his own family doctor present when the examination is undertaken.
[27] There is sufficient in the material to raise at least the possibility that Mr Corbett is a “incapacitated person” but lay opinions are not of sufficient weight in that regard to reach a conclusion. As mentioned, that conclusion can only be supported by a medical examination and one at which Mr Corbett’s medical advisors are entitled to be present if they wish.
[28] On that basis, it would be appropriate to make an order at this stage that Mr Corbett submit himself to a medical examination by Dr Brinded, with Dr Brinded filing his report in Court as required by the Rules. A discussion will be undertaken with Mr Corbett and counsel shortly, to formalize the date, time and place of such an examination.
[29] However, that does not deal with the application by Mr Corbett to have this matter adjourned insofar as it bears on the merits of the issue and insofar as he wishes to adduce evidence commenting in reply on the four affidavits served on him late last Friday.
[30] The application should be adjourned to permit Mr Corbett to file further evidence if he wishes, either from himself or from others, commenting on the views of Messrs Patterson, Western and Ms Bolesworth in accordance with his wish to file papers in opposition. To that end, today’s hearing will need to be adjourned for a period to enable that to be done, and again a discussion will be undertaken shortly as to the mechanics of that matter.
[31] In formal terms, an order is made requiring Mr Corbett to submit himself to Dr Brinded’s medical examination but otherwise the application for appointment of a litigation guardian is adjourned to a time and date to be fixed.
[32] After consultation with counsel and Mr Corbett, the date, time and place of the examination by Dr Brinded is to be resolved between the parties, if possible, with the Court being advised by memorandum. There will be leave reserved if agreement on those topics cannot be reached. Dr Brinded’s fees and travel expenses will initially be met from the J M and J S Corbett Family Trust, with the ultimate impact of those fees to be determined on resolution of the substantive proceeding.
[33] As far as Mr Corbett’s desire to have an independent medical practitioner present is concerned, he suggests that three doctors be present – a psychologist, a psychiatrist and his general practitioner. There is no mandate or necessity for three independent doctors to be present and the selection of the one doctor who should be present is for Mr Corbett to organise so that the doctor can be present when Dr Brinded undertakes the examination. In the first instance, the costs of that single doctor will be met by the J M and J S Corbett Family Trust but, again, the ultimate incidence of that payment is to be determined in the substantive proceeding.
[34] As far as an opportunity is required for Mr Corbett to respond to the material served on him last Friday, he is to advise the Court by 5:00pm on 26 May 2010 by the date on which he expects to be able to file that opposing material and a timetable will then be made for that aspect.
[35] Whether or not all those issues can be arranged and the necessary reports and rebuttal material placed before the Court before the Court of Appeal’s hearing on
15 June 2010 is an issue to be decided. But at this point it probably seems unlikely that all those matters are likely to be accomplished by 15 June.
[36] When issuing the Minute concerning timetabling, the Court will also set a further date for the call of this matter. It may be by telephone conference as opposed to face to face, and it can be called in front of another Judge rather than Hugh Williams J.
[37] That said, obviously, there are some advantages with Hugh Williams J dealing with the matter from this point onwards in that he does have some grip on the issues, but equally, another Judge can bring themselves up to date. Some doubt
must be expressed as to whether any further conference can be before Hugh Williams J because over the next six weeks he is out of Auckland on circuit for at least four of those weeks, including a period on circuit which brackets the Court of Appeal hearing on 15 June 2010.
.................................................................
HUGH WILLIAMS J.
25 May 2010
0
0
0