Erwood v Harley - [2024] NZCA 679

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA5/04
[2024] NZCA 679

BETWEEN	ROBERT ERWOOD Applicant
AND	GLASGOW HARLEY First Respondent RAYLEE PATRICIA HARLEY Second Respondent

CA475/2019
BETWEEN	ROBERT ERWOOD Applicant
AND	JOHN ROBIN HOLMES First Respondent GRAEME EDWARD MINCHIN Second Respondent

CA647/2019
BETWEEN	ROBERT ERWOOD Applicant
AND	ANTHONY DAVID BANBROOK Respondent

Court:	Mallon, Cooke and Collins JJ
Counsel:	Applicant in person T Mijatov as counsel to assist the Court in CA5/04 and CA647/2019 Second Respondent for CA475/2019 in person
Judgment: (On the papers)	18 December 2024 at 2 pm

JUDGMENT OF THE COURT

AThe application to recall this Court’s judgment [2008] NZCA 572 is declined.
B The application for an extension of time in relation to proceeding CA475/2019 is declined.
C The application for an extension of time in relation to proceeding CA647/2019 is declined.
DWe make no order for costs.
EThese three proceedings are now concluded. We direct the Registrar to refuse to accept any further applications or memoranda from Mr Erwood in these three proceedings.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

We are required to determine applications in respect of three separate proceedings commenced by Mr Erwood. Because Mr Erwood is representing himself, and at times he has been incapacitated, this Court appointed Mr Mijatov as counsel to assist the Court. We will first briefly summarise the three proceedings and the applications before us.

The applications

Erwood v Harley

The genesis of all three proceeding can be traced to proceedings Mr Erwood commenced against the New Zealand Law Society (NZLS) and FAI (NZ) General Insurance Co Ltd (FAI) to recover investments he lost when the law firm Renshaw Edwards collapsed in 1992. Ms Harley, who was instructed by Glasgow Harley, represented Mr Erwood in those proceedings. He succeeded against the NZLS but not against FAI.
In 2002, Mr Erwood commenced proceedings against Ms Harley and Glasgow Harley alleging they had been negligent in the way they conducted his litigation. The High Court appointed Mr Minchin, a lawyer, to be Mr Erwood’s litigation guardian. Mr Minchin arranged for Mr Holmes, a solicitor, to instruct Mr Banbrook as counsel. Mr Erwood continued to file documents on his own behalf until Harrison J issued a minute in June 2003 directing that only Mr Minchin could file documents in court on behalf of Mr Erwood.[1]
[1]Erwood v Harley HC Auckland CIV-2002-404-1663, 20 June 2003 (Minute of Harrison J).
In October 2003, Mr Erwood was assessed by a psychiatrist who concluded he was not suffering from a mental disorder and that he no longer needed a litigation guardian. On 25 November 2003, Mr Banbrook and Mr Minchin attended a judicial settlement conference. Mr Banbrook did not notify the Court of the psychiatrist’s report. The proceedings settled. Consent orders were made by Frater J.
Mr Erwood attempted to file an application to set aside the consent orders. This led to Harrison J issuing a minute on 9 December 2003 directing that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Erwood v Harley

Details

AGLC: Erwood v Harley [2024] NZCA 679
Case: [2024] NZCA 679
Decision Date: 18 December 2024

CaseChat Overview and Summary

The Court of Appeal of New Zealand was asked to decide on three separate applications made by Robert Erwood in relation to ongoing legal proceedings. The first application sought to recall the Court's 2008 judgment declining Mr Erwood's application to set aside consent orders from 2003. The second and third applications sought extensions of time to appeal judgments delivered by the High Court in 2019 and 2021 respectively.

The Court considered whether Mr Erwood's recall application met any of the established principles for recalling a judgment, such as a change in relevant law or a failure to consider an authoritative decision. The Court found the application was meritless and would cause injustice to the respondents by reopening a settled matter from almost two decades ago.

The Court also considered the principles for extending time to appeal under the Court of Appeal Rules. While Mr Erwood argued he required a litigation guardian, the Court found his significant delays in progressing the appeals and the hopelessness of the appeals meant granting extensions of time was not in the interests of justice.

The Court ultimately declined all three applications and directed the Registrar to refuse any further applications from Mr Erwood in these proceedings. The judgments bring an end to over 20 years of litigation between Mr Erwood and the various respondents.

Orders