Erwood v Holmes
[2017] NZHC 1278
•12 June 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2004-404-007211 [2017] NZHC 1278
BETWEEN ROBERT ERWOOD
Plaintiff
AND
JOHN ROBIN HOLMES First Defendant
ANTHONY DAVID BANBROOK Second Defendant
GRAEME EDWARD MINCHIN Third Defendant
Hearing: (On the papers) Counsel:
Plaintiff in Person
Lorraine MacDonald for the First DefendantJudgment:
12 June 2017
JUDGMENT OF MOORE J
This judgment was delivered by me on 12 June 2017 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
ERWOOD v HOLMES & ORS [2017] NZHC 1278 [12 June 2017]
Introduction
[1] Mr Erwood applies for a review of the decision of Doogue AJ1 not to appoint counsel assisting (or an amicus curiae) in respect of the present proceedings.2
[2] On 12 April 2017 Fitzgerald J made consent orders for the timetabling of submissions in respect of the review. The parties were agreed the matter could be dealt with and determined on the papers.
[3] Doogue AJ determined that neither a litigation guardian nor counsel assisting should be appointed. This review is only in respect of the Judge’s determination on the counsel assisting issue.
[4] I note for the sake of completeness that on 27 April 2017 Venning J declined Mr Erwood’s application for the appointment of counsel assisting for the purposes of the current review. His Honour determined such an appointment was not in the interests of justice given that the review raises a very short point which Mr Erwood would be well able to address without assistance.
Background
[5] These proceedings have their genesis in the Renshaw and Edwards litigation which arose from very substantial losses caused by the dishonesty of two Wellington practitioners. Mr Erwood sued the New Zealand Law Society and an insurance company to recover his losses. He succeeded against the Law Society but failed against the insurance company.
[6] He then sued the lawyers who represented him in those proceedings, pleading a number of breaches of duty, one of which was a failure to apply to the Court for the appointment of a litigation guardian. Mr Erwood was apparently mentally
disordered at the time.
1 Erwood v Holmes [2017] NZHC 556.
2 The terms “counsel assisting” and “amicus curiae” are to be read interchangeably in this judgment. Where possible “counsel assisting” has been adopted in deference to the Court of Appeal’s stated preference. However, “amicus curiae” is still widely used and has been applied in this judgment when the context has required or when a quote from a judgment has used the term.
[7] As Doogue AJ’s judgment records, the course of the litigation is recounted in Harley v McDonald.3 There Mr Erwood was represented by the second defendant in these proceedings, Mr Banbrook. The third defendant, Mr Minchin, was his litigation guardian appointed to represent his interests.
[8] This litigation seemingly came to an end when a settlement was entered into following a judicial conference on 25 November 2003.4 While Mr Erwood did not attend the conference, settlement was effected by agreement between the defendants and his litigation guardian. However, prior to the judicial settlement conference, Mr Erwood had been assessed by a psychiatrist who opined that Mr Erwood was not suffering from an active mental disorder and no longer required a litigation guardian.
[9] On 26 October 2005 Mr Erwood commenced the present proceedings. He alleges that the litigation guardian agreed to apply for his discharge following receipt of the psychiatrist’s report. However, after the litigation guardian’s engagement should have been discharged, the parties entered into the settlement without Mr Erwood’s authority. Mr Erwood alleges the defendants wrongly and without authority applied the settlement proceeds to themselves. He sues in negligence and seeks damages for the amount of the settlement plus exemplary damages.
[10] Thus, the current proceedings relate to the circumstances in which the earlier proceedings were allegedly compromised at the judicial settlement conference. They are now more than 10 years old. The delays in getting this matter to a fixture are explained below.
[11] The proceedings first stalled on 15 August 2006 when Faire AJ, as he then was, ordered by consent that the proceedings be stayed until related litigation in the Court of Appeal had been determined. The related litigation concerned attempts by Mr Erwood to have the consent order of 25 November 2003 set aside. Faire AJ
reserved leave to either party to apply to lift the stay on 14 days’ notice.
3 Harley v McDonald [2001] UKPC 18, [2002] 1 NZLR 1.
4 As recorded in paragraphs [11]-[12] below, further litigation between the parties arose out of the circumstances of the settlement agreement.
[12] In its 11 December 2006 judgment the Court of Appeal dismissed Mr Erwood’s various attempts to have the consent order set aside.5 However, in respect of the present proceedings Mr Erwood took no further steps until late in 2008 when he applied to join Mr Minchin as the third defendant. In a Minute dated
9 December 2008 Rodney Hansen J observed that Mr Erwood had not applied to remove the stay ordered by Faire AJ.
[13] The next development appears to have occurred in February 2011 when Mr Erwood sought to have the case listed for mention. On 6 May 2011 Faire AJ recorded in a Minute that all relevant related litigation had been determined meaning the stay had expired and the proceedings remained live. His Honour also recorded that Mr Erwood had applied on 4 May 2011 to have an amicus appointed. Faire AJ had declined an earlier such application on 10 October 2005.
[14] The proceeding stalled a second time when, on 1 June 2011, Faire AJ was advised at a case management hearing that Mr Erwood was an undischarged bankrupt. As a result, the Judge recorded his preliminary view that the present claim was a right of action which vested in the Official Assignee pursuant to s 101 of the Insolvency Act 2006. Faire AJ observed that if his preliminary view was correct Mr Erwood would not have standing to bring the proceeding unless the Official Assignee assigned the cause of action to him. Faire AJ adjourned the proceedings
while Mr Erwood’s bankruptcy status was determined by further litigation.6
[15] On 4 April 2012 Faire AJ convened a case management conference to ascertain whether Mr Erwood possessed the right of action which he seeks to enforce in this proceeding. As it transpired, Christiansen AJ had made an order annulling Mr Erwood’s bankruptcy on 21 February 2008 but directed the order was not to be sealed until Mr Erwood had satisfied a number of conditions. Faire AJ observed that until the order of annulment was sealed, Mr Erwood would not possess the cause of
action he seeks to bring in these proceedings.
5 Erwood v Glasgow Harley [2008] NZCA 572.
6 See Erwood v Maxted [2012] NZCA 110.
[16] The case did not progress further until March 2016 when Mr Erwood requested a case management conference. In a Minute dated 22 June 2016
Doogue AJ recorded that the order or annulment had been sealed on 23 July 2013 and it had become necessary to determine whether the cause of action underlying the present proceeding had revested in Mr Erwood.
[17] Doogue AJ also queried whether Mr Erwood would require a litigation guardian. To assist with determining this issue Doogue AJ directed the appointment of counsel to assist the Court pursuant to r 10.22 of the High Court Rules (“the Rules”). Ms Jennifer Cooper was appointed. Her task, inter alia, was to assist the Court on the question of whether Mr Erwood was an incapacitated person under r 4.30 of the Rules. The Court also requested assistance on the issue of whether counsel to assist ought to be appointed through to and until the conclusion of the substantive proceedings. Ms Cooper filed a further memorandum on that topic.
Decision of Doogue AJ
[18] As earlier noted, Doogue AJ was confronted by two issues: the appointment of a litigation guardian and the appointment of counsel assisting.
[19] Although Mr Erwood does not seek to review Doogue AJ’s refusal to appoint a litigation guardian, the Judge’s reasons bear some relevance on the present application. As his Honour pointed out, litigation guardians have been appointed in the past for Mr Erwood. Harrison J appointed Mr Minchin on 21 May 2002.7 That application was made by Mr Erwood himself and supported by the affidavit of a psychiatrist.
[20] In respect of the present proceedings Doogue AJ initiated inquiries himself as to whether there might be a need for a litigation guardian to be appointed. However, as the Judge noted, while Mr Erwood may in the past have been an incapacitated person there is currently no evidence before the Court that he remains in that state. He has represented himself in proceedings since 2003 without the intervention of a
litigation guardian. In some of the proceedings counsel has been appointed to assist
7 Erwood v Glasgow Hartley [2008] NZCA 572 at [4].
the Court. However, because there has been no recent determination by a Court that Mr Erwood is an incapacitated person and in the absence of any evidence indicating he presently is, Doogue AJ determined there was no need for a further inquiry.
[21] On the question of counsel assisting the Judge noted that Mr Erwood has conducted the present proceedings in his own right from the outset.
[22] He noted the views of the first defendant that Mr Erwood carries the burden of establishing whether there is any substantial public interest in the outcome of the proceedings and whether the Court is likely to be materially assisted by evidence or submissions provided by assisting counsel in contrast to evidence or submissions from a party.
[23] The Judge also referred to Ms Cooper’s summary:
“23. It is further respectfully submitted that a broad role is likely to prove problematic and that an amicus would best be able to assist the Court if his or her role is limited to the “core” function identified by Fogarty J as follows:
‘But, at the core of it, an amicus is not acting on instructions from a party to the proceedings. The amicus does not act on instructions from a client. The amicus selects independently arguments which he/she thinks are appropriate to put before the Court, or as in this case, the amicus discharges requests from the Court for analysis of one matter or another. In the latter instance, as here, the amicus, as a professional, then assists the Court as best he or she can to provide that analysis in an independent fashion.’
24. As such, providing substantive legal advice to Mr Erwood and preparation of Mr Erwood’s submissions, briefs, and evidence would not be within the role of the amicus. Rather, the role of the amicus would be to provide assistance to the Court, as and when required, at the direction of the Court, as has been the role of counsel assisting the Court to date.”
[24] His Honour agreed with the observations of Fogarty J. He concluded that there was no public interest aspect which would justify the appointment of counsel assisting. He considered that the proper function of counsel assisting in the present proceedings would simply be to take a neutral position which would not, in any sense, be viewed as representing Mr Erwood.
[25] While noting that Mr Erwood would no doubt prefer to have counsel assisting him in making submissions in his favour that was not an outcome which the Judge considered would be justified. If he wished to have legal assistance he should retain his own counsel or apply for legal aid. And, if he was not entitled to legal aid there would be no justification for the Court to remedy any perceived deficiency in the legal aid regime by appointing counsel.
Approach to appeal
[26] The power for a High Court Judge to review a decision of an Associate Judge used to be conferred by s 26P of the Judicature Act 1908. That section was repealed by the Senior Courts Act 2016 which replaced the right to review a decision of an Associate Judge with a right of appeal to the Court of Appeal. However, s 26P still
applies to these proceedings because they were commenced before 1 March 2017.8
Thus, s 26P and the principles developed under it remain the governing authority for this review.
[27] Under s 26P, the Court must review the order or decision in accordance with the Rules and may make such order as may be just. The decision being reviewed in the present case followed a defended hearing and is supported by documented reasons. Thus the review proceeds by way of rehearing under r 2.3(4) of the Rules.9
[28] As Edwards J recently observed in Jacques v Main, the approach to review is essentially appellate in nature with the starting point being the Associate Judge’s decision.10 Where the Court is reviewing the exercise of a discretion, the decision will generally only be overturned if a Judge has made an error of law, has failed to take into account a relevant factor, has taken into account an irrelevant factor or is plainly wrong. As Heath J noted in Robinson v Whangarei Heads Enterprise Ltd,11 that aspect of a rehearing does not appear to have been affected by the Supreme
Court’s decision in Austin, Nichols & Co Inc v Stichting Lodestar.12
8 See clause 11 of schedule 5 to the Senior Courts Act 2016.
9 Revoked on 1 March 2017 by s 183(a) of the Senior Courts Act 2016.
10 Jaques v Main [2016] NZHC 1978 at [18]-[19].
11 Robinson v Whangarei Heads Enterprise Ltd [2013] NZHC 2247 at [7].
12 Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
[29] As will be discussed shortly, the decision to appoint counsel assisting lies at the discretion of the Court. Accordingly, the decision of Doogue AJ should only be interfered with if Mr Erwood is able to identify an error in principle or establish that the decision was plainly wrong.
The present application
[30] In his application to review the Associate Judge’s decision Mr Erwood advances the following grounds:
(a) the Judge applied the wrong principles by adopting the reasons of Fogarty J in Solicitor-General for New Zealand v Moodie which was overturned by the Court of Appeal;13
(b)the Judge failed to take into account the High Court, Court of Appeal and Supreme Court judgments placed before him;
(c) the tasks of an amicus includes dealing with logistical and procedural matters and in all the proceedings involving Mr Erwood where an amicus has been appointed they have been appointed to prepare and file all documents and written submissions; and
(d)there are issues of public importance engaged in this case and, in particular, the public importance in the administration of justice that the Court be correctly and informed and not misled by [counsel] regarding the capacity of the litigant at any stage in the proceedings. This is of public importance because it affects the case of every
litigant who is the subject of a litigation guardian order.
13 Solicitor-General for New Zealand v Moodie HC Wellington CIV-2005-485-1026, 24 July 2006.
Overturned in Solicitor-General v Alice [2007] 1 NZLR 655.
Legal principles – appointment of counsel assisting
[31] The traditional term for a lawyer appointed by the Court to provide assistance to the Court is amicus curiae, literally a “friend of the Court”. In Grice v R Ferguson J offered the following explanation:14
“Amicus curiae … is one who as a bystander, where a Judge is doubtful or mistaken in a matter of law, may inform the Court. In its ordinary use the term implies the friendly intervention of counsel to remind the Court that some matter of law which has escaped its notice and in regard of which it is in danger of going wrong.”
[32] The Court of Appeal has resolved to discontinue the use of the term “amicus curiae” and its various derivatives. The term “counsel assisting the Court” is now used. This approach is consistent with the use of the words “counsel assisting the Court” in s 99A of the Judicature Act 1908 (now repealed), r 10.22 of the Rules and s 269 of the Immigration Act 2009.
[33] The need to appoint counsel to assist the Court is usually brought to the Court’s attention in one of two ways. First, it will often become apparent to a Judge dealing with the management of a proceeding that the Court should seek the assistance of counsel. Secondly, a party to the proceedings may make an application to the Court for an appointment of counsel to assist the Court.
[34] The power to appoint counsel to assist is grounded in the Court’s inherent jurisdiction although that principle needs to be considered in conjunction with the Rules which permit the Court to make certain directions in relation to representation in specified classes of persons or the public interest. Rule 10.22 requires the Solicitor-General to appoint counsel to assist the Court where the Court so directs.
[35] Counsel will ordinarily be appointed to assist where there is a danger that an important and difficult point of law will require a determination without having been the focus of argument. This point was made by Brennan CJ in Levy v Victoria:15
“The hearing of an amicus curiae is entirely in the Court’s discretion. That
discretion is exercised on a different basis from that which governs the
14 Grice v R (1957) 11 DLR (2d) 699 at 702.
15 Levy v Victoria [1997] HCA 31, (1997) 189 CLR 579 at 604.
allowance of intervention. The footing on which an amicus curiae is heard is that the person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted.”
[36] Bearing in mind these observations and the underlying purpose of appointing counsel to assist, care should be taken not to encourage the role of counsel assisting the Court to become a parallel de facto legal aid system.
[37] The second point to draw from the observations of Brennan CJ in Levy v Victoria is that the hearing of counsel assisting “is entirely in the Court’s discretion”. In R v Hill our Court of Appeal confirmed this point, citing Brennan CJ’s observations as well as the following passage from an Australian criminal law text:16
“Permission to appear as an amicus curiae is “entirely in the Court’s discretion”, and should only be granted if an applicant demonstrate that “the parties whose cause [he or she] would support are unable or unwilling to protect their own interests or to assist the Court in arriving at the correct determination of the case.”
An amicus curiae neither acts as the legal representative of an unrepresented accused person nor otherwise appears as his or her personal representative.”
[38] The discretionary nature of the decision in issue reinforces the point made earlier that Mr Erwood must point to some error of principle or that the decision of Doogue AJ was plainly wrong for his review to succeed.
Discussion
[39] In assessing whether the Judge erred in the exercise of his discretion, it is helpful to examine the circumstances in which counsel assisting have been appointed in the past. While in the civil context the categories of case which would justify the appointment of counsel assisting are not closed, the following examples emphasise that the core nature of the role and its primary purpose is to assist the Court rather than the parties to the litigation.
(a) Counsel assisting has been appointed in cases where important issues may arise for determination but where a party to the proceedings has
16 R v Hill [2004] 2 NZLR 145 (CA) at [56]-[59] citing The Laws of Australia, Criminal Procedure
at [11.9].
chosen not to participate.17 In that situation the appointment is usually made so that the Court has an effective contradictor.
(b)Where the case raises issues, the determinations of which are likely to significantly affect the interest of a sector of society which is not a party to the proceedings, counsel assisting may be appointed. Examples include where counsel was appointed to represent the interests of an infant,18 where the Attorney-General was invited to advance arguments on behalf of the Crown in what was essentially a private dispute19 or in a case where counsel was appointed to represent the interests of present and future employees who chose not to join the union.20
(c) Where the case may involve complex issues of human rights or international law counsel assisting has been appointed.21
(d)Counsel assisting has also been appointed where the case involves confidential information which cannot be disclosed to a defendant or his counsel.22
[40] While this catalogue is, by no means, exhaustive, it does reveal that a principled approach must be adopted when exercising what is, quintessentially, a judicial discretion. It should not be made where the primary purpose is to assist a party in the presentation of their case in circumstances where legal aid may have been refused or for some other reason the party is unable or unwilling to access a
lawyer for the purpose of representation.
17 Wanganui District Council v Tangaroa [1995] 2 NZLR 706 (HC); Fitzgerald v Commissioner of
Inquiry into Marginal Lands Boards [1980] NZLR 368 (HC).
18 Beard v Travers (1749) 27 ER 1052 (Ch).
19 Morelle Limited v Wakeling [1955] 2 QB 379 (CA).
20 New Zealand Dairy Workers Union Inc v New Zealand Milk Products Limited [2004] 3 NZLR
652 (CA).
21 Re A (Conjoined Twins: Medical Treatment) [2001] FAM 147 (CA); R v Bow Street Metropolitan Stipendiary Magistrate, ex-parte Pinochet Ugarte [2001] 1 AC 61 (HL) and Siemer v Solicitor-General [2009] NZCA 62, [2009] 2 NZLR 556.
22 Dotcom v Attorney-General [2012] NZHC 3268; R v Black CA50/06, 20 July 2006.
[41] That Mr Erwood may, in the past, have incidentally benefited from the appointment of counsel assisting, is not, without more, a proper or principled basis to make an appointment. That is because the discretion to appoint counsel to assist is one that falls to be exercised afresh each time the issue arises. Here, Doogue AJ was made aware, through Ms Cooper’s detailed memoranda, that Mr Erwood had previously had the benefit of counsel appointed to assist with presenting his case. His Honour decided, however, that in the circumstances of these proceedings such an appointment was inappropriate. The fact Mr Erwood is able to provide some additional examples of the Court appointing counsel to represent his interests does not, without more, suggest error on the part of the Judge.
[42] Relevantly, while counsel assisting have been appointed in other proceedings involving Mr Erwood, he has already applied unsuccessfully to have counsel assisting appointed in this proceeding. On 7 October 2005 Faire AJ declined Mr Erwood’s application, stating:
“[7] My reasons for declining the application are the following:
(a) I have been presented with no specific evidence to suggest that Mr Erwood has exhausted his legal aid entitlement. If, in fact he is either in a position to instruct solicitors or would qualify for a grant of legal aid to do so, I see no reason why he should be relieved of that obligation by the appointment of an amicus curiae;
(b) There is some doubt as to whether an amicus curiae should be appointed in any event where the object of the exercise is to plead the case, collect the evidence and generally present the position of a single party to the litigation;
(c) I do not find, in this particular piece of litigation, any issue of public importance that singles this case out for special treatment;
(d) If an appointment was made it seems that the costs of the amicus’ attendances would have to be paid by the Crown, but not through the facilities offered through the Legal Services Agency;
(e) If an appointment was made in this case, it is clear that for it to be worthwhile the person appointed would have to take all steps that are required to be undertaken by solicitor and counsel for a party in what is essentially private litigation.”
[43] Thus, right from the outset, there has been judicial scepticism as to the need to appoint counsel assisting in the present proceeding.
[44] I turn now to address Mr Erwood’s submission that Doogue AJ made his decision in reliance on an erroneous statement of principle. While Mr Erwood is correct that the judgment of Fogarty J in Solicitor-General v Moodie was successfully appealed, the Court of Appeal did not express disagreement with the statement of principle articulated by Fogarty J23 (as relied on by Doogue AJ24). Rather, the Court of Appeal disagreed with Fogarty J’s conclusion that it would be improper for counsel previously appointed by the Court as counsel assisting to be later engaged as counsel for a party in the same litigation.25
[45] The only passage in the Court of Appeal’s judgment giving cause for pause is the following one in which the Court emphasised that counsel assisting are often appointed to fulfil a partisan role:
“[17] There is nothing improper in amici taking a partisan role of this type. Indeed, as Ms Gwyn pointed out, they are commonly appointed for this very purpose: see Krislov “The Amicus Curiae Brief: from Friendship to Advocacy” (1963) 72 Yale LJ 694. Amici have been appointed to present legal arguments for a party who does not appear (for example in Wanganui District Council v Tangaroa [1995] 2 NZLR 706 (HC) and B v M [2006] NZSC 86), for a class of persons that might be affected by the judgment (for example in NZ Dairy Workers Union Inc v New Zealand Milk Products Ltd [2004] 3 NZLR 652 (CA)) or for a person who is representing him or herself (for example in Ambros v Accident Compensation Corporation HC AK CIV-
2004-404-3261, 21 March 2005 where the appointment was continued for the appeal which is currently reserved for judgment).”
[46] However, that counsel assisting may render his or her assistance from a partisan perspective is consistent with Fogarty J’s observations that amici are appointed as independent professionals and do not act on instructions from a client. On occasions, the Court benefits from partisan arguments of counsel assisting because those arguments operate as contradictors to the other side’s submissions.
This helps the Court to arrive at the correct result in a way consistent with our
23 Solicitor-General for New Zealand v Moodie, above n 13, at [19]; see paragraph [23] of this judgment.
24 Erwood v Holmes, above n 1, at [24].
25 Solicitor-General v Alice, above n 13, at [16]-[23].
adversarial system of justice. Indeed, a later Court of Appeal case referred to the paragraph cited above as authority for the simple proposition that:26
“Where an amicus is appointed in a criminal case it is accepted that he or she may act in a partisan way, in a sense that he or she may present the arguments that party would normally present.”
[47] And in a more recent decision of the Court of Appeal, the Court observed:27
“What is true of all amici, however, is that they are not parties. They are appointed at the discretion of the Court and the extent to which they may file documents and present legal argument is at the discretion of the Court.”
[48] Accordingly, I am not satisfied that the statement of principle articulated by Fogarty J in Moodie was incorrect or that Doogue AJ was in error when he applied that principle in the present case.
[49] Neither am I satisfied that the present case engages a matter of general or public importance. Mr Erwood claims that the issues raised are ones of public importance because they affect the rights of every litigant who is the subject of an order appointing a litigation guardian.
[50] I cannot agree. It is notable that Mr Erwood in his supporting affidavit does not identify the wider public interest factors claimed in his application.
[51] It is apparent reading his affidavit as a whole that Mr Erwood expects counsel assisting will act for him effectively as an unpaid lawyer. This emerges from his affidavit which reads, in part:
“(4) These complex, protracted, unprecedented proceedings have caused alienation to me within the profession, whereby I cannot get lawyers to act for me.
(5) I have repeatedly approached numerous lawyers, in respect of this litigation, who are competent in this type of civil litigation and none will be involved with me. I have also asked other lawyers to find me a lawyer. Rennie Cox spent several months and no lawyers, none were prepared to act for me, having tried for several months, to find a lawyer for me.”
26 R v McFarland [2007] NZCA 449 at [55].
27 The Beneficial Owners of Whangaruru Whakaturia No 4 v Warin [2009] NZCA 60, [2009] NZAR 523 at [21].
[52] I agree with Doogue AJ that there is no public interest aspect which would justify the appointment of counsel assisting in this case.
[53] I also agree with the Judge’s conclusion that in this case the proper function of counsel assisting would be to adopt a neutral position. They would not, in any sense, be representing Mr Erwood as the plaintiff despite his obvious hope and expectation that they would.
[54] I have also had regard to observations made by Judges in previous cases involving Mr Erwood which suggest it would not be appropriate to continue to appoint counsel assisting even for the limited purpose of helping Mr Erwood with logistical and procedural matters. In a 2013 case McKenzie J remarked:28
“[42] The second point is that, if Mr Erwood does become involved in any future litigation relating to his bankruptcy, the fact that he is no longer an undischarged bankrupt will be relevant to the conduct of that litigation. The Court has in the past appointed counsel as amicus curiae, who have provided assistance to Mr Erwood as well as to the Court. Mr Erwood cannot expect that such steps would be taken in the future. If Mr Erwood requires the assistance of counsel, he should anticipate that the only assistance available to him from counsel will be from counsel instructed by him.”
[55] While these remarks were directed at further litigation involving Mr Erwood’s bankruptcy as opposed to further litigation generally, the fact McKenzie J was minded to make these comments tends to suggest Mr Erwood is prone to abusing the appointment of counsel assisting. Indeed, as the Court of
Appeal observed in 2012:29
“Mr Erwood often seeks to use his mental health difficulties to obtain an advantage in litigation. As the earlier descriptions of the family home and free proceedings amply illustrate, it has become a regular practice for Mr Erwood to represent himself but then apply to the Court for the appointment of counsel assisting, or less often, a litigation guardian.”
[56] Also relevant is an observation made by the Supreme Court in 2012 that the appointment of counsel assisting has not, in the past, prevented Mr Erwood from
28 The Official Assignee v Erwood [2013] NZHC 1827.
29 Erwood v Maxted [2012] NZCA 110 at [54].
conducting litigation in a difficult manner. In Erwood v Maxted the Court remarked:30
“… We also note that in the various skirmishes that took place in the Court of Appeal in relation to the bankruptcy, he was from time to time, either represented or had the assistance of an amicus, but he nonetheless continued to behave in an obdurate way.”
[57] As earlier observed, it can be readily inferred that Mr Erwood expects counsel assisting to represent his interests. In light of this and having regard to the comments of the Supreme Court just quoted, it appears that even with the appointment of counsel assisting, there would remain a distinct possibility Mr Erwood would advance his case in an intractable fashion.
[58] It must not be overlooked that counsel assisting are financed out of the public purse. Often there is a public interest in particular litigation which justifies the public expense associated with the appointment of counsel assisting. Where, however, the purpose of the appointment is primarily to streamline the case of a self- represented litigant in private litigation, the Court rightly hesitates before making such an appointment. That is particularly so when the litigant in question has, in the past, continued to behave in an obdurate way despite the appointment of counsel assisting.
[59] In view of the foregoing, I am not satisfied Doogue AJ erred when refusing to exercise his discretion to appoint counsel assisting even for the limited purpose of helping with logistical and procedural matters.
[60] If Mr Erwood seeks the assistance of counsel he has two options. If he is eligible he may apply for legal aid. If legal aid is refused he may engage counsel. He claims no lawyer will act for him. However, the obligation of every practising lawyer is to accept instructions unless one or more of the limited grounds which permit a lawyer to decline an instruction are met. Rule 4 of the Conduct and Client Care Rules provides that a lawyer as a professional person must be available to the public and must not, without good cause, refuse to accept instructions from any
client or prospective client for services within the reserved areas of work that are
30 Erwood v Maxted [2012] NZSC 81 at [6].
within the lawyer’s field of practice.31 This obligation to accept instructions was described in Lai v Chamberlain as “one of the foundation stones of a free and democratic society”.32
[61] For these reasons I am not satisfied that Doogue AJ erred in any of the ways complained of. The Judge relied on an accurate statement of principle and gave proper consideration to whether there was sufficient public interest in this proceeding to warrant the appointment of counsel assisting. Having agreed with his assessment of the relevant considerations, I discern no reversible error in the exercise of the Judge’s discretion to be corrected on review.
Result
[62] The application for review is refused.
Moore J
Solicitors:
Kennedys, Auckland
Copy to:
The Plaintiff
31 “Good cause” in this context includes “a lack of available time, the instructions falling outside the lawyer’s normal field of practice, instructions that could require the lawyer to breach any professional obligation, and the unwillingness or inability of the prospective client to pay the normal fee of the lawyer concerned for the relevant work”: rule 4.1.
32 Lai v Chamberlain [2005] 3 NZLR 291 (CA) at [106].
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13
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