Flavell v Campbell

[2019] NZHC 2993

NOTE: PURSUANT TO S 80 OF THE PROTECTION OF PERSONAL AND PROPERTY RIGHTS ACT 1988, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-003092

[2019] NZHC 2993

BETWEEN

MS FLAVELL

Appellant

AND

MR CAMPBELL

Respondent

Hearing:

(On the papers)

Counsel:

Appellant in Person

A Cooke as Counsel to Assist G Askelund for Mr Thomas

Judgment:

18 November 2019

[COSTS] JUDGMENT OF MOORE J

This judgment was delivered by me on 18 November 2019 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

FLAVELL v CAMPBELL [2019] NZHC 2993 [18 November 2019]

Introduction

[1]    These proceedings concern efforts that have been made to protect the interests of Mr Thomas.1 Mr Thomas lives with a chronic mental illness and, relatedly, impaired short-term memory and an impaired capacity to process information as part of decision making. Regrettably, his prognosis is poor. He is, and will remain, a person in respect of whom provision will need to be made in terms of the Protection of Personal and Property Rights Act 1988 (“the Act”).

[2]    In my judgment  of  12  April  2019,2  I  dismissed  an  appeal  brought  by  Mr Thomas’ sister, Ms Flavell,3 against a November 2017 decision of the Family Court.4 In that judgment, the Court revoked Ms Flavell’s enduring power of attorney (“EPOA”) in respect of Mr Thomas’ financial affairs and declared that Ms Flavell was not a fit or proper person to manage Mr Thomas’ affairs. The Public Trust was appointed property manager to manage Mr Thomas’ affairs.

[3]    The present judgment determines the question of costs on Ms Flavell’s unsuccessful appeal.

Background

[4]    A fuller narrative detailing the background facts is contained in my judgment of 12 April 2019.5

[5]    Suffice to say, in 2015 Mr Thomas was the sole holder of an account with the credit union (“Credit Union”). Credit Union staff became concerned about the use of the card. The Credit Union placed a stop on the card. When inquiries were made and Mr Thomas expressed no concern about the use of the card, the stop was removed. Further substantial withdrawals were subsequently made.

1      This is a fictious name to protect the identity of the party.

2      Flavell v Campbell [2019] NZHC 799.

3      This is a fictitious name to protect the identity of the party.

4      [Campbell] v [Thomas] [2017] NZFC 9125. See also [Campbell] v [Thomas] [2017] NZFC 4720.

5      Flavell v Campbell, above n 2 at [3] and following.

[6]    Mr Thomas twice attended the Credit Union to meet with its general manager, the respondent  Mr Campbell.6   These meetings  took  place on  4  December and   15 January 2016. On both occasions, Ms Flavell sought to prevent Mr Campbell from talking privately with Mr Thomas. On the second occasion, Ms Flavell was served with a trespass notice, but refused to leave until the Police were called. Ultimately Mr Thomas indicated that he wanted to keep the balance of the funds in a savings account with the Credit Union.

[7]    Mr Campbell harboured concerns regarding Mr Thomas’ capacity to give proper  instructions.  He  froze  the  account.   Eventually,  on  22  January  2016,  Mr Campbell was contacted by  a  lawyer  who  advised  that  he  was  acting  for  Mr Thomas. He claimed Mr Thomas’ instructions were that the funds held by the Credit Union should be transferred to an account with the ASB bank. That account would be accessible by both Mr Thomas and Ms Flavell.

[8]    On 29 January 2016, Mr Thomas advised Mr Campbell the lawyer was no longer acting for him. A complaint was subsequently made, by either Mr Thomas or Ms Flavell,  to  an  industry  regulator  over  Mr  Campbell’s  actions  in   freezing Mr Thomas’ account. That complaint was dismissed on 22 February 2016, with the complaints body holding that the Credit Union could properly hold the funds until either the Family Court appointed a property manager under the Act or that Court determined Mr Thomas had the requisite competency.

[9]    Apparently because of this determination, Mr Thomas executed two EPOAs. One related to his property. The appointments were made in favour of Ms Flavell in the first instance. Ms Flavell then insisted the balance of Mr Thomas’ savings account be paid out to her. Despite the property EPOA, the Credit Union refused. In parallel civil proceedings,7  Ms  Flavell  sued  the  Credit  Union,  the  industry  regulator,  Mr Campbell and the lawyers engaged by Mr Thomas to prepare his EPOAs. Duffy J struck the proceedings out, describing the statement of claim as “no more than a rambling incoherent diatribe”.8

6      This is a fictitious name to protect the identity of the party.

7      [Flavell] v [Credit Union] [2016] NZHC 133.

8 At [25].

[10]   Meanwhile, Ms Flavell was charged with trespass as a result of her behaviour at the Credit Union on 15 January 2016. She was convicted following a Judge-alone trial. During this hearing the Judge became concerned that a review of the EPOA was necessary to address the potential risk Ms Flavell might pressure Mr Thomas to make decisions which were not in his best interests. The Judge determined the Court had jurisdiction to undertake such a review and appointed Mr Cooke as counsel to assist. Mr Cooke assisted Mr Campbell in bringing applications pursuant to ss 102 and 103(2) of the Act in the Family Court.

[11]   On 14 November 2017, Judge Burns held the Court had jurisdiction to make the orders sought and did so in terms of the application. The Public Trust was appointed as property manager to manage Mr Thomas’ funds as held by the Credit Union. The EPOA in favour of Ms Flavell was revoked on the grounds the Court was satisfied she was not a proper person to be Mr Thomas’ property manager.

[12]   Pursuant to the requirements of s 65(2) of the Act, Mr Finnie was appointed to represent Mr Thomas in the proceedings. Mr Finnie later  withdrew.  In  his place  Mr Askelund was appointed. He encountered difficulties obtaining instructions. Those difficulties, I accepted,9 were a result of Ms Flavell’s interventions.

[13]   Ms Flavell applied for leave to this Court to appeal the decision of Judge Burns. Her notice of application for leave to appeal was “all but completely incomprehensible.”10 As the appeal progressed through its various administrative pre- hearing stages, various Judges of this Court made efforts to rehabilitate the notice of appeal by identifying tenable grounds of appeal. Furthermore, Mr Cooke was re- appointed as counsel to assist the Court and Mr Askelund as counsel for Mr Thomas. Ms Flavell appeared in person.

[14]   I treated the grounds of appeal as being whether the Judge was wrong to make the orders in [11] above. I determined that Mr Thomas was unable to manage his own affairs, necessitating the appointment of a property manager (which was not in dispute) and that he was vulnerable to being easily influenced by others. Relatedly, I noted that

9      [Flavell] v [Campbell] [2019] NZHC 799 at [46].

10     [Flavell] v [Campbell] [2019] NZHC 799 at [52] and following.

Ms Flavell “exerts considerable influence and dominance over her brother”11 and I considered there was a real likelihood that his execution of the EPOA in her favour was undertaken under the influence of his sister. I was “easily satisfied” the Judge had been correct to revoke the EPOA.12

[15]   Finally, I was satisfied that Ms Flavell’s conduct relative to her brother “[left] the Court with no confidence she is capable of carrying out the duties of a manager in a satisfactory manner” or that she would act in Mr Thomas’ best interests.13 This conclusion was reinforced by Ms Flavell’s “surprisingly vague” responses when questioned by the Court about her history of dishonesty offending.14 Strictly speaking, that issue was academic, given the scheme of the Act.15 Nonetheless, I was therefore also satisfied the Judge was correct to determine Ms Flavell was not a fit or proper person to manage the relevant aspect of her brother’s property. In any event, the appointment of the Public Trust as manager of the funds would remain.16

The parties’ positions

[16]   While noting that Mr Campbell, as the respondent, would normally be entitled to an award of costs, I made no orders as to costs given that I was uncertain as to whether any arrangements or agreements were in place between the parties. To that end I directed the parties to confer with a view to filing a consent memorandum as to costs and, in default of such agreement, to direct separate memoranda be filed and served before 30 April 2019.

[17]   The Court has received a single memorandum as to costs; that of Mr Cooke. The case officer has confirmed that no other costs memoranda have been received.

[18]   Mr Cooke submits that, as counsel appointed to assist the Court in a proceeding under the Act, his fees and expenses are to be paid out of public money appropriated by Parliament for the purpose.17 Mr Akerlund’s costs, as the lawyer appointed to

11 At [86].

12 At [90].

13 At [97].

14 At [98].

15 At [91].

16 At [93].

17     Protection of Personal and Property Rights Act 1988, s 65B(1)(b).

represent Mr Thomas as the person in respect of whom the application was made, are similarly payable out of public money appropriated by Parliament for the purpose.18

Discussion

[19]The position appears to be somewhat anomalous.

[20]   Ms Flavell’s appeal was clearly brought under the Act, as of right under s 83(1). It is therefore a proceeding under the Act19 and pursuant to s 65B(1)(b) of the Act, Mr Cooke’s fees are to be determined in accordance with any regulations made under s 16D of the Family Court Act 1980 or, absent any such regulations, a Registrar of the Family Court.20 The Act’s specific provisions in this respect derogate from this Court’s general power to make costs orders on appeals from the Family Court under the Act.21

[21]   On researching this issue, no relevant regulations have been made. Thus, the position would appear to be that Mr Cooke’s costs in relation to the appeal in this Court are to be determined by a Registrar of the Family Court. That conclusion is reinforced by the scheme of s 65B of the Act, which refers to the administrative functions of the Family Court Registrar in relation to the lawyer assisting’s fees and expenses, and for review of the Registrar’s decisions made as part of that process by a Family Court Judge.22

[22]   Furthermore, s 65B(4) provides that, where a lawyer’s fees and expenses have been paid under s 65B(1)(b), the Family Court may order a party to the proceedings to refund to the Crown a specified amount in respect of those fees and expenses, which amount becomes a debt due to the Crown.

[23]   It follows that, perhaps unusually, the amount of Mr Cooke’s costs in this Court on Ms Flavell’s appeal payable to the Crown are to be determined by the Registrar of

18     Section 65(5)(b).

19     See further High Court Rules 2016, r 20.1(3) for a consistent use of the word “under”.

20     See Protection of Personal and Property Rights Act 1988, s 2 definition of “court”.

21 Protection of Personal and Property Rights Act 1988, ss 83 and 83A; and District Court Act 2016, ss 124, 128(1)(d).  See in particular the  use of the  words  “with all necessary modifications” in s 83(3) of the Protection of Personal and Property Rights Act 1988.

22 Protection of Personal and Property Rights Act 1988, ss 65B(2)-(3).

the Family Court.   Similarly, any question of a party to the proceeding (such  as   Ms Flavell) being ordered to refund the Crown in respect of that amount, is to be determined by the Family Court.

[24]   The position is the same in respect of Mr Akerlund, as provided for by s 65(5) to (8) of the Act.

[25]   The anomalous aspect of this position is highlighted by the decision of Williams J in this Court in Haylock v Patek.23 There, Williams J identified that, subject to exceptions necessarily arising from the terms of the particular statutes involved,24 an appeal being brought from a judgment in a proceeding is a second proceeding separate to the proceeding in the first instance Court.25 While the Judge was addressing a particular statutory context, his decision was based on a clear (if, as his Honour acknowledged, apparently obscure) trend of authority for the proposition that:26

“an appeal is a proceeding separate from the proceeding in an inferior court whose decision provides the necessary foundation or prerequisite for the exercise of appellate jurisdiction”

[26]   As this usefully highlights, the consequence of the wording of ss 65 and 65B is that the Family Court, either a Registrar or Judge of that Court, is required to assess the reasonableness of counsel’s costs in this Court in an appellate proceeding in which that Court was not involved. Especially where the Court is invited to use its jurisdiction under ss 65(8) or 65B(4) to require a party to the proceeding or the person in respect of whom the application under the Act was made to reimburse the Crown for legal expenses, it appears curious that it is not the Judge, or even the Court, best placed to assess the conduct and merits of the appeal that is required to make that assessment.

23     Haylock v Patek [2009] 3 NZLR 559 (HC).

24 At [44].

25     At [49]-[51].

26 At [42], applying Attorney-General v Sillem (1864) 10 HL Cas 704, 11 ER 1200 (HL); Sandle v Stewart [1982] 1 NZLR 708 (CA); and Shotover Gorge Jet Boats Ltd v Jamieson [1987] 1 NZLR 437 (CA).

[27]   Nonetheless, that is the result required by Parliament’s use of the word “court” in ss 65 and 65B of the Act, which is defined by s 2 of the Act to refer to the Family Court.

Result

[28]   It follows that I make no orders in respect of the costs or disbursements payable in respect of Mr Cooke’s or Mr Akerlund’s roles in the proceeding. As Mr Cooke’s memorandum appears to indicate, the Family Court has already made provision for the payment of those fees.

[29]   A copy of this judgment is to be provided to the Registrar of the Family Court at Auckland, as the Registry in which the Family Court proceeding was filed, in the event it assists that Court in determining whether it should exercise its powers under ss 65(8) or 65B.

Moore J

Solicitors:

Mr Cooke, Auckland Mr Askelund, Auckland

Copy to:

The Appellant