Grosser v Grosser

[2015] NZHC 551

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV2014-409-000613 [2015] NZHC 551

BETWEEN

DARRELL EMMANUEL GROSSER

Applicant

AND

NORMAN WILLIAM GROSSER Person in respect of whom application is made

Hearing:

24 March 2015 (On the papers)

Appearances:

I Mitchell for Applicant

AJF Wilding (Counsel to assist Court) Welfare Guardian in person

Judgment:

24 March 2015

RULING OF DUNNINGHAM J

[1]      In an application filed on 10 March 2015, Dr Michael Gousmett applied to the High Court for an order permitting him to intervene and be heard in this proceeding.   He also filed and served a copy of the submission he proposes to present to the Court if leave to intervene is granted.

What is the proceeding about?

[2]      The proceeding involves a case stated for the opinion of this Court on a question of law arising out of proceedings under the Protection of Personal and Property  Rights Act  1988  (the Act).    The  question  posed  relates  to  whether  a proposed welfare guardian is entitled to charge for services provided as a welfare guardian appointed under the Act.   Judge Murfitt has particularised this issue in a series of questions set out in the case stated relating to the interpretation of various

provisions of the Act.

GROSSER v GROSSER [2015] NZHC 551 [24 March 2015]

Who are the current participants?

[3]      Ms Mitchell is acting for the subject person, Mr Wilding has been appointed as counsel to assist the Court, and the proposed welfare guardian, Ms Mary Fraser, is, the Court understands, appearing in person and has provided written submissions.

Who is the proposed intervener?

[4]      Dr Gousmett is Mrs Fraser’s husband.   He describes himself as a “PHD qualified independent researcher specialising in the charity and non profit sector who is familiar with legal research”.  He contributes regularly to the New Zealand Law Journal.

[5]      In his submission he acknowledges his connection to Mary Fraser, who as a professional welfare guardian, provides guardianship services as an appointee of the Family Court, but says:

I have endeavoured in the submission as a professional researcher to be as fair and unbiased as possible, to ensure that the Judge’s concern at my submission might disadvantage any party will be allayed.   I trust that my contribution  on  this  matter  will  not  delay  the  hearing  set  down  for

25 March 2015.

What does he propose to say?

[6]      His proposed submissions set out the legislative history of the Act and the social context in which it was enacted.  He summarises:

(a)       a report prepared for the Justice and Law Reform Select Committee on the PPPR Bill;

(b)      the Select Committee’s report back to the House on the Bill; (c)        the content of New Zealand Parliamentary debates on the Bill; (d)          key submissions to the Select Committee on the Bill; and

(e)       provides extracts of some subsequent commentary and response to the

Act itself.

Why is he applying to intervene?

[7]      Dr Gousmett’s notice of interlocutory application is based on the fact that the proceeding raises issues of general public importance concerning the Act and the question of remuneration of professional welfare guardians.  In essence, he says that the history of the Act, as researched by him and detailed in his submission, is relevant to that issue.  He also points to the scope to allow intervention applying the principles outlined in Drew v Attorney-General, and by implication, asserts that he is someone whose experience enables him to bring “special insights to the issues being

addressed by the Court”. 1

[8]      I made timetabling directions for the filing of any notice of opposition to Dr Goumett’s application for leave to intervene.  No opposition has been filed.  In those circumstances I signalled that I would deal with the application on the papers. I regret that pressures of Court business mean I have only just been able to deal with the application.

What are the principles which govern the grant of leave to intervene?

[9]      The  principles  which  apply  to  an  application  to  intervene  are  clearly articulated in Drew v Attorney-General.  Where a proceeding raises legal questions on matters concerning the public interest, the Court may be required to have regard to  wider implications  than those  of  immediate  concern to  the parties.    In  such situations the Court can be assisted by those whose experience enables them to bring special insights to the issues being addressed by the Court.  To satisfy itself of that, the Court would normally expect an applicant for intervention to submit an affidavit outlining the general experience and expertise they have which would assist the Court.  Where the assistance likely to be offered outweighs any potential detriments

to the various interests, the Court would normally allow intervention.

1      Drew v Attorney-General [2001] 2 NZLR 428.

How do those principles guide my decision in the present case?

[10]     The present application is not quite what was envisaged by the Court in Drew.  Dr Gousmett is not a representative of an entity with an obvious interest in the issue before the Court, such as, a professional trustee company, a health entity such as the Canterbury District Health Board, or an organisation like Age Concern, which can shed light on the practical context in which the legal issues are being debated.   Instead Dr Gousmett simply wishes to make a legal submission on the history of the Act, which could equally well be adduced by counsel for the subject person, or by counsel appointed to assist the Court, Mr Wilding.

[11]     As was said in Drew, where the parties to an appeal have made it plain they will themselves provide for submissions, it will be unusual for the Court to regard the proposed legal content of a potential intervener’s submissions as demonstrating the necessary likely value of an intervener’s contribution.  Intervention is normally allowed where it will assist the Court to understand the wider implications of its decision, and not just the consequences which are of immediate concern to the parties.

[12]   While Dr Gousmett’s submissions have been prepared with admirable scholarliness and restraint, setting out just the legal history of the Act, I do not see that these assist the Court by providing a perspective which would not be normally be expected to be provided from counsel already involved in the case.  Dr Gousmett does not bring any external experience which might bring insights to the Court’s decision beyond providing information to the Court which might give some guidance as to how the Bill should be interpreted.

[13]     Accordingly, although there has been no opposition to the application, I am not satisfied that this is an appropriate case in which to allow the application to intervene.   While there is nothing whatsoever objectionable about Dr Gousmett’s submission, I consider the Court should exercise restraint before allowing additional parties to intervene.   In this case,  I do not consider that the legislative history provided by Dr Gousmett qualifies as material which will bring special insights to the issues being addressed by the Court.  While I accept there would be no detriment

to the parties by allowing the applicant to participate, that cannot be determinative. If I allowed the application, it would effectively set the threshold for intervention as requiring mere relevance to  the issues  at  hand,  rather  than being  able  to  bring “special insights to the issues being addressed” by the Court.

[14]     Consequently, the application is declined.   Of course, the parties already involved are welcome to refer to and adopt any material contained in Dr Gousmett’s submissions if they think that of utility in explaining their position.

Solicitors:

Cunningham Taylor, Christchurch

Malley & Co., Christchurch

AJF Wilding, Christchurch

Copy to: Mary Fraser, Welfare Guardian