Harrison v Harrison

[2020] NZCA 189

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA57/2020
 [2020] NZCA 189

BETWEEN	PAULINE JANICE HARRISON Appellant
AND	ADRIENNE HARRISON First Respondent GRAEME ROSS HARRISON Second Respondent

Court:	French, Brown and Clifford JJ
Counsel:	Appellant in person P M Webb for First and Second Respondents R A Rose for ChildFund
Judgment: (On the papers)	28 May 2020 at 10 am

JUDGMENT OF THE COURT

The application to review the decision of Cooper J declining to appoint a litigation guardian is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

1. Ms Harrison, the appellant, has applied for an order appointing her daughter Ms Angela Harrison as litigation guardian to conduct this appeal.

2. The application was declined by Cooper J on 28 February 2020.[1]  Ms Harrison subsequently filed further information and renewed her application.  However, it was again declined by Cooper J on 1 May 2020.[2]

   [1]Harrison v Harrison CA57/2020, 28 February 2020.

   [2]Harrison v Harrison CA57/2020, 1 May 2020.

3. Ms Harrison now seeks a review of Cooper J’s decision.  She submits the decision was unfair and unreasonable and in breach of the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993.  She also relies on the fact that in related High Court proceedings, her daughter has been appointed by Lang J as her litigation guardian.[3]

   [3]Harrison v Harrison HC Auckland CIV-2019-404-002566, 8 April 2020.

4. As Cooper J noted, the Court of Appeal (Civil) Rules 2005 do not provide for appointments of litigation guardians.  However, it is well established that where there is a gap, the High Court Rules 2016 can be applied by analogy and in the manner that the Court thinks best calculated to promote the ends of justice.[4]

   [4]Court of Appeal (Civil) Rules 2005, r 5(4).

5. The relevant High Court rule is r 4.35(2).  It states that the Court may appoint a litigation guardian if satisfied of two requirements: first, that the person for whom the litigation guardian is to be appointed is an “incapacitated person” and secondly that the proposed litigation guardian is able fairly and competently to conduct proceedings on behalf of the incapacitated person.

6. An incapacitated person is defined in r 4.29 as:

   a person who by reason of physical, intellectual, or mental impairment, whether temporary or permanent, is—  

   (a)not capable of understanding the issues on which his or her decision would be required as a litigant conducting proceedings; or

   (b)unable to give sufficient instructions to issue, defend, or compromise proceedings.

7. The reason Cooper J declined the application in this case is because on the information before him he was not persuaded that Ms Harrison was an incapacitated person within that definition.

8. In support of her application, Ms Harrison provided the following information

   (a)A statement from her daughter that on 25 January 2020 Ms Harrison was admitted to the coronary care unit at Christchurch having had “a near fatal complete heart block.”  

   (b)A medical certificate dated 7 February 2020 from a general practitioner which states that Ms Harrison is not currently medically fit to travel or to participate in person at court hearings and is unlikely to be in the foreseeable future.

   (c)A medical certificate dated 28 February 2020 from a consultant cardiologist stating Ms Harrison is under his care in respect of a chronic cardiac condition and that undue stress would not be in the best interests for her health.

9. The first two pieces of information were before Cooper J on the first occasion he considered the application.  The medical certificate from the cardiologist was the basis of the renewed application.

10. Ms Harrison undoubtedly has health issues.  However, we agree with Cooper J that none of the information supplied whether viewed individually or collectively satisfies the definition of incapacitated.  There is no suggestion that Ms Harrison is incapable of understanding the issues or incapable of giving instructions.

11. We acknowledge that Lang J reached a different conclusion in the High Court on the same information.  However, we are not, of course, bound by that decision.  Further, we note that the Judge did not engage with the definition of “incapacitated” and that the appointment he made was a limited one.  It was for the sole purpose of a fixture on 30 July 2020 which would otherwise have had to be adjourned.  It is clear from the Judge’s minute that his primary concern was not to jeopardise the fixture.

12. The application to review the decision of Cooper J declining to appoint a litigation guardian is declined.

13. We make no award of costs because this is a matter for the Court and not the other parties.

Solicitors:
Denham Bramwell, Manukau for First and Second Respondents