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Erwood v Holmes

Erwood v Holmes

Case [2017] NZHC 1278 12 June 2017

Jurisdiction

Appeal

Counsel Assisting

Civil Litigation & Procedure

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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 Defendant

Judgment:

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…

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 Holmes

Details

AGLC: Erwood v Holmes [2017] NZHC 1278
Case: [2017] NZHC 1278
Decision Date: 12 June 2017

CaseChat Overview and Summary

Mr Erwood applies for a review of the decision of Doogue AJ not to appoint counsel assisting (or an amicus curiae) in respect of the present proceedings. The High Court dismissed the application for review. The court noted that counsel assisting have been appointed in the past for Mr Erwood. However, Doogue AJ had determined that there was no evidence before the Court that Mr Erwood remained incapacitated and in the absence of any evidence indicating he presently was, there was no need for a further inquiry. The court further noted that Mr Erwood had conducted the present proceedings in his own right from the outset. The court considered that the proper function of counsel assisting in the present proceedings would be to adopt a neutral position and would not, in any sense, be representing Mr Erwood. The court concluded that there was no public interest aspect which would justify the appointment of counsel assisting and if Mr Erwood wished to have legal assistance he should retain his own counsel or apply for legal aid.

Orders