Emery v Thorn

[2018] NZHC 436

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000389

[2018] NZHC 436

UNDER

The Declaratory Judgments Act 1908 and Property (Relationships) Act 1976.

BETWEEN

ELIZABETH EMERY by her Litigation Guardian, DAVID DOMINIC RICE

Plaintiff

AND

LEO HAROLD THORN

First Defendant

TONY JOHN THORN

Second Defendant

Hearing:	On the papers
Judgment:	14 March 2018

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 14 March 2018 at 3.00 pm

pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date………………………

EMERY v THORN [2018] NZHC 436 [14 March 2018]

[1]                 This is an application brought by the plaintiff’s solicitor to have himself appointed her litigation guardian.

[2]                 Under r 4.30 of the High Court Rules an incapacitated person must have a litigation guardian as his or her representative in any proceeding unless the Court orders otherwise. Rule 4.29 defines an incapacitated person as one 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.

[3]                 Under r 4.35 the court may appoint a person as a litigation guardian if it is satisfied that:

(a)The person for whom the litigation guardian is to be appointed as an incapacitated person; and

(b)The litigation guardian –

(i)is ably fairly and competently to conduct the proceedings on behalf of the incapacitated person; and

(ii)does not have interests adverse to those of the incapacitated person; and

(iii)consents to being a litigation guardian.

[4]                 In this proceeding the plaintiff, Elizabeth Emery, seeks a declaration that she was living in a de facto relationship with Sheryl Georgina Thorn, who died in September 2015. The proceedings are related to the proceedings in CIV-2015-485- 607432 in which Ms Emery and one of Ms Thorn’s sons, Leo Thorn, has each applied separately for an order that letters of administration be granted in their favour. That proceeding cannot be determined until the status of Ms Emery’s relationship with  Ms Thorn has been established in the present proceeding.

[5]                 The applicant, David Rice, has acted for Ms Emery since 2014 in this and the related proceedings in which letters of administration are sought. In 2015, Ms Emery executed an enduring power of attorney in favour of Mr Rice. He obtained a capacity

assessment before she executed the document which confirmed that she had capacity to grant the power of attorney.

[6]                 As Ms Emery’s attorney Mr Rice has endeavoured to resolve the issues between Ms Emery and Mr Thorn. No progress has been made, however, and Mr Rice considers that the matter requires determination by the Court. He delayed issuing these proceedings because of his concerns about Ms Emery’s current capacity, ability to give instructions and to understand the nature of any proceedings brought.

[7]                 Mr Rice has provided an affidavit from consultant geriatrician, Dr Sidney Choy, who examined Ms Emery in August 2015 and again in October 2017. Though her general health was satisfactory, Ms Emery suffers from a number of conditions, including dementia. Dr Choy expressed the following views:

… She now lacks capacity to manage her own affairs in relation to property. In my view this represents a total lack of capacity …

The plaintiff is now in the position where she is wholly unable to communicate with understanding her decisions relating to her property and welfare. She now has significant problems with memory and confusion.

… I do not believe that the plaintiff would now be able to understand any legal advice that was given to her, understand the purpose of any proceedings, or foresee the consequences of any order made.

[8]                 Dr Choy also observed that Ms Emery appeared to have a good relationship with Mr Rice.

[9]                 In these circumstances I am quite satisfied that Ms Emery no longer has capacity to manage this litigation. She is incapacitated for the purposes of r 4.29 and that is necessary for a litigation guardian to be appointed.  I am also satisfied that   Mr Rice, as an officer of the court and Ms Emery’s solicitor of some years standing, is the appropriate person to take that role.

[10]I accordingly make the orders sought that:

(a)David Dominic Rice be appointed as the litigation guardian for Elizabeth Emery in the conduct of these proceedings; and

(b)Costs on the application are reserved.

P Courtney J