Erwood v Harley
[2024] NZCA 679
•18 December 2024
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA5/04 |
| BETWEEN | ROBERT ERWOOD |
| AND | GLASGOW HARLEY |
| CA475/2019 | ||
| BETWEEN | ROBERT ERWOOD | |
| AND | JOHN ROBIN HOLMES | |
| CA647/2019 | ||
| BETWEEN | ROBERT ERWOOD | |
| AND | ANTHONY DAVID BANBROOK | |
| Court: | Mallon, Cooke and Collins JJ |
Counsel: | Applicant in person |
Judgment: | 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 proceeding against Ms Harley and her instructing solicitors was at an end. Mr Erwood then attempted to appeal Harrison J’s minute.
In January 2004, Mr Erwood commenced parallel proceedings to have the consent orders recalled and to have Mr Minchin removed as litigation guardian. On 15 December 2005, Harrison J ruled that Mr Minchin’s appointment as litigation guardian continued until his appointment was terminated by the Court. As a consequence, Mr Minchin was authorised to settle Mr Erwood’s litigation and there was no merit in Mr Erwood’s proceeding to have the consent orders set aside.
Mr Erwood then attempted to appeal, out of time, the High Court’s 15 December decision. This Court declined to extend time to appeal.[2] Mr Erwood then unsuccessfully applied to have this Court recall its judgment declining leave to extend time for him to appeal (2008 recall judgment).[3]
[2]Erwood v Harley CA52/06, 11 December 2006.
[3]Erwood v Harley [2008] NZCA 572 [2008 recall judgment].
On 2 April 2009, Mr Erwood applied for recall of this Court’s 2008 recall judgment. That application is one of three that we are now required to determine.
Erwood v Holmes
In December 2004, Mr Erwood, by now acting for himself, issued proceedings against Mr Holmes. Mr Banbrook was joined as second defendant in February 2006. Mr Minchin was joined as third defendant in May 2011. Mr Erwood alleged they had negligently conducted his proceedings against Ms Harley and Glasgow Harley.
On 20 August 2019, Downs J issued judgment in the proceeding against Mr Holmes and Mr Minchin. The judgment concluded that neither lawyer was negligent.[4]
[4]Erwood v Holmes [2019] NZHC 2049 [judgment of Downs J].
Mr Erwood filed a notice of appeal against Downs J’s decision. The appeal was deemed abandoned on 24 November 2020 for non-compliance with r 43 of the Court of Appeal (Civil) Rules 2005 (the Rules) when he failed to progress his appeal in accordance with the timeframes prescribed in the Rules.
Mr Erwood now seeks an extension of time under r 29A of the Rules to appeal the 2019 judgment of Downs J.
Erwood v Banbrook
On 14 November 2019, Palmer J delivered his decision in respect of Mr Erwood’s claim against Mr Banbrook.[5] That claim was brought by way of formal proof and alleged Mr Banbrook had breached duties of care in tort and fiduciary duty when he failed to have Mr Minchin removed as litigation guardian. Palmer J concluded Mr Erwood could not establish that Mr Banbrook’s actions caused him any loss because the High Court would not have removed Mr Minchin as litigation guardian in 2003, before settlement of the claim against Ms Harley and Glasgow Harley.[6]
[5]Erwood v Holmes [2019] NZHC 2963 [judgment of Palmer J].
[6]At [35].
Mr Erwood filed an appeal within time in respect of this proceeding, however, because Mr Banbrook had died, Mr Erwood needed to get the leave of the High Court to continue the appeal against the Official Assignee. He received various extensions of time to make the appropriate application. The last extension expired on 30 November 2020.
In March 2021, this Court sought a report from Dr Barry‑Walsh, a psychiatrist, in respect of Mr Erwood’s capacity to conduct his own proceedings. In his report dated 24 September 2021, Dr Barry Walsh concluded Mr Erwood required a litigation guardian. No action was taken in respect of that recommendation.
In April 2021, Mr Erwood filed a document in this Court asking it to “reinstate” his appeal. It was taken to be a fresh notice of appeal, an application under r 29A of the Rules for an extension of time to appeal Palmer J’s judgment and an application to stay enforcement. The stay of enforcement could only relate to the cost orders made against Mr Erwood by Palmer J.
Erwood v Harley: recall application
Principles
The principles governing recall applications are well settled. In Horowhenua County v Nash (No 2), Wild CJ said:[7]
Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeals. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled—first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.
[7]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
This statement has been applied by the Supreme Court in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2),[8] and by this Court in cases concerning Mr Erwood, such as Erwood v Harley[9] and Erwood v Maxted.[10]
[8]Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122, [2010] 1 NZLR 76 at [2].
[9]Erwood v Harley [2007] NZCA 88, (2007) 18 PRNZ 336 at [4].
[10]Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [3].
None of the conventional principles that govern recall applications are engaged by Mr Erwood’s application for us to recall this Court’s 2008 recall judgment.
Furthermore, two factors negate any suggestion that the interests of justice warrant a recall of the 2008 recall judgment.
First, the application is totally devoid of merit. As this Court said in its 2008 recall judgment, Mr Erwood’s arguments to have the 2003 consent orders set aside had effectively been considered by the High Court and by this Court and that it was “inconceivable” that the consent order would be set aside.[11] Second, in 2008, this Court said Ms Harley and Glasgow Harley would be “justifiably grieved if, more than five years after they settled with Mr Minchin, this Court put in issue his authority to conclude the settlement”.[12] Since then, Ms Harley has died and a further 18 years have elapsed. This Court’s concern in 2008 about injustice being inflicted upon the respondents through the passage of time has multiplied beyond calculation since this Court issued its recall judgment.
[11]2008 recall judgment, above n 3, at [12], [16]–[22] and [36].
[12]At [38(c)].
The application to recall this Court’s 2008 recall judgment is declined.
Erwood v Holmes: application to extend time to appeal High Court judgment
The principles concerning applications to extend time under r 29A of the Rules are also well established. In Almond v Read, the Supreme Court summarised those principles.[13] The ultimate question is what the interests of justice require in the particular circumstances of the case. Relevant considerations may include the length of the delay, the reasons for the delay, the conduct of the parties, any prejudice or hardship to the respondent, and the significance of the issues raised by the proposed appeal, both to the parties and more generally.[14] An extension should only be refused for lack of merit where the appeal is clearly hopeless.[15]
[13]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.
[14]At [38].
[15]At [39(c)].
The delays in this case have been extreme. The judgment of Downs J was delivered on 20 August 2019. Mr Erwood filed his notice of appeal on 17 September 2019 but failed to take appropriate steps to advance his appeal. The appeal was deemed abandoned almost a year later, after at least one extension had been granted to enable Mr Erwood to progress the appeal. Now, four years later, Mr Erwood seeks to revive his appeal. The delays since the High Court judgment was delivered have been inordinate, particularly as they relate to events alleged to have occurred in 2003.
The only factor that might mitigate the delays is Mr Erwood’s argument that he requires a litigation guardian or an amicus to pursue his claim.
The report from Dr Barry-Walsh confirms that Mr Erwood may have benefitted from a litigation guardian in late 2001. The report states that Mr Erwood is greatly disorganised and that although Mr Erwood has significant knowledge about court processes he has “difficulty in integrating information, presenting a coherent argument and in making … rational decisions on the basis of the information he has”. Dr Barry‑Walsh also suggested Mr Erwood’s mental disorder could have been in play as far back as 2007.
As Mr Mijatov points out however, Mr Erwood diligently prosecuted the proceedings against Mr’s Minchin, Holmes and Banbrook in 2018 and 2019. He successfully defended his strike out application, appeared in two substantive trials in 2019, and in 2021, he took initial steps to advance his appeal. Mr Mijatov also correctly points out various judges have in the past observed Mr Erwood relies on his mental health issues “inconsistently and manipulatively”.[16] For example, in 2012 the Supreme Court accepted findings that Mr Erwood was not incapacitated and “had a good understanding of the issues and the nature of the proceedings”.[17]
[16]See for example Harley v Erwood HC Nelson CP22/98, 30 May 2002 at [29]; and Erwood v Holmes [2019] NZHC 1302 at [10], citing Erwood v Maxted [2012] NZCA 110 at [54].
[17]Erwood v Maxted [2012] NZSC 81 at [5].
In our assessment, while Mr Erwood may have benefitted from a litigation guardian at the time he was assessed by Dr Barry‑Walsh in late 2021, he had the capacity before then to properly advance his appeal.
We are concerned about the impact of further delays on the respondents. They have had this litigation hanging over their heads since 2004 (in the case of Mr Holmes) and 2011 (in the case of Mr Minchin). Mr Erwood’s extraordinary delays in progressing this litigation coincided with times when various courts observed he had the capacity to conduct litigation.
In his submissions, Mr Minchin points out:
This matter has been on foot for 20 years. Looking back at the few Minutes of the Court I have on file, from the outset it has been delayed because of Mr Erwood, whether that be his bankruptcy or claims of incapacity. I would be the last to deny Mr Erwood his right to justice, but it is also a right that I have and justice delayed is justice denied. In addition, it is a right every other litigant seeking time before the scarce judicial resources of the Court of Appeal also has. It is submitted that in this balance the Court has availed Mr Erwood of every indulgence, which would be commendable, if it was not at the expense of others.
We also believe this is one of the rare cases in which the lack of merits enables us to conclude there is little point in granting Mr Erwood’s application. Our reasons for reaching this conclusion can be succinctly summarised:
(a)As many courts have already observed, Mr Minchin’s conduct did not cause Mr Erwood any loss. The High Court on several occasions refused to remove Mr Minchin as litigation guardian or to set aside the consent orders.[18]
(b)The claim against Mr Holmes was plainly frivolous. Downs J found Mr Holmes was unaware of the psychiatrist letter until after the proceedings had settled.[19]
(c)Mr Erwood’s claim that Mr Holmes had wrongly charged fees was also an unfounded allegation.[20]
[18]Judgment of Downs J, above n 4, see [71]–[74].
[19]At [88].
[20]At [96]–[102].
The combined effects of Mr Erwood’s delays, the unfairness to the respondents in allowing this litigation to continue and the hopelessness of the appeal leads us to conclude that it is not in the interests of justice to grant Mr Erwood’s application under r 29A.
Erwood v Banbrook: application to extend time to appeal High Court judgment and to stay enforcement
We need not reiterate the principles concerning applications under r 29A of the Rules.
As with the proposed appeal from the judgment from Downs J, we are satisfied that the combined effects of Mr Erwood’s extraordinary delays, the prejudice to the estate of the respondent and the hopelessness of the appeal means that Mr Erwood’s application to extend time in order to pursue his appeal from the judgment of Palmer J must also be declined.
Granting Mr Erwood a further indulgence to pursue his claims would be contrary to the interests of justice.
Result
The application to recall this Court’s judgment [2008] NZCA 572 is declined.
The application for an extension of time in relation to proceeding CA475/2019 is declined.
The application for an extension of time in relation to proceeding CA647/2019 is declined.
We make no order for costs.
These 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.
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