Hanning v Serco New Zealand Limited
[2020] NZHC 1980
•7 August 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2020-485-151
[2020] NZHC 1980
UNDER the Judicial Review Procedures Act 2016 and Part 5 of the Corrections Regulations Act 2005 IN THE MATTER
of a judicial review of various matters with respect to various defendants
BETWEEN
PAUL KENNETH HANNING
Applicant
AND
SERCO NEW ZEALAND LIMITED
First Respondent
THE CHIEF EXECUTIVE FOR THE DEPARTMENT OF CORRECTIONS
Second Respondent
THE CHAIRPERSON OF THE NEW ZEALAND PAROLE BOARD
Third Respondent
Hearing: On the papers Counsel:
Applicant in person
D Jones for Second Respondent
Judgment:
7 August 2020
JUDGMENT OF CLARK J
[1] Mr Hanning has filed an interlocutory application under rr 7.19(4) and 7.23(1) of the High Court Rules 2016 seeking the appointment of an amicus to represent him in his judicial review proceedings.
HANNING v SERCO NEW ZEALAND LIMITED [2020] NZHC 1980 [7 August 2020]
[2] The application has been referred to me by a registry officer under r 5.35A for direction as to whether the documents should be accepted for filing. Mr Hanning’s application is accompanied by his memorandum and his unsworn affidavit.
[3] Rule 5.35A is directed at proceedings the Registrar believes, from their face, are plainly an abuse of the process of the court. This application is not a “proceeding” as defined in r 1.3.1 Nor is it a proceeding so that either r 5.35B or r 5.46C is invoked.
[4] There being no basis to direct the registry to refuse to accept the document for filing I deal with it on its merits.
[5] Mr Hanning has already had a similar application declined by Simon France J. Mr Hanning applied to the court for the appointment of an amicus or stand by counsel on the grounds he was a layman, a self-represented litigant and had limited insight into court proceedings. On 16 July 2020 Simon France J declined the application in the following terms:
The application for the Court to appoint an amicus/stand by counsel is declined. Stand by counsel are used in criminal trials. The Court will not require the assistance of an amicus.
[6] Mr Hanning’s present application is made on substantially the same grounds: that he is self-litigating and feels ill-equipped to deal with the proceedings himself. He attributes this to an earlier traumatic brain injury as a result of which he says he has trouble retaining information. Mr Hanning says he may not be able to respond or conduct himself in a timely fashion in accordance with court practice.
[7] Mr Hanning is under the misapprehension that his earlier application was declined “under the Fahey ruling”, a reference to Fahey v R.2 But France J’s ruling was not so confined. He declined stand by counsel (who assume the conduct of the defence in a criminal trial if a defendant so decides). But he also concluded that the Court would not require the assistance of an amicus.
1 A “proceeding means any application to the court for the exercise of the civil jurisdiction of the court other than an interlocutory application”.
2 Fahey v R [2017] NZCA 596.
[8] The appointment of an amicus is a matter for the Court’s assessment and discretion. I share France J’s view that the Court will not require the assistance of an amicus.
[9] Perhaps the singular difference between this application and Mr Hanning’s previous application is that he relies on r 4.27 under which the Court may, on the application of a party or on its own initiative appoint a counsel who agrees to represent unrepresented persons.3
[10] In my view Mr Hanning is unable to take advantage of r 4.27. The reference to “unrepresented persons” in r 4.27(b) is to be considered in light of the other classes of persons described in that sub rule: “minors”, “unborn” and “absent”. It is apparent that “unrepresented persons” in the context of r 4.27(b) embraces a class of persons who may be affected by the proceedings in the court and whose interests therefore should be represented. Indeed, the commentary to the rule describes it as enabling the court “to ensure that the interests of those who may be affected by a proceeding, but are not necessarily parties to it, can be represented”.4
[11] Mr Hanning’s concern about a lack of familiarity with court procedure is shared by the majority of litigants. But r 4.27(b) is not, in my view, directed at facilitating legal representation of a party’s interests when that party has initiated court proceedings and elected to personally conduct the proceeding.
Karen Clark J
Solicitors:
Crown Law Office, Wellington
3 High Court Rules 2016, r 4.27(b).
4 Matthew Casey and others Sim’s Court Practice (online ed, Lexis Nexis) at [HCR4.27.3].