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)

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

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 Harrison v Harrison

Details

AGLC: Harrison v Harrison [2020] NZCA 189
Case: [2020] NZCA 189
Decision Date: 28 May 2020 at 10 am

CaseChat Overview and Summary

In the case of Harrison v Harrison, the appellant, Pauline Janice Harrison, sought an order to appoint her daughter, Angela Harrison, as her litigation guardian to conduct an appeal against a decision of Cooper J. The respondents were Adrienne Harrison and Graeme Ross Harrison. The Court of Appeal, comprising French, Brown, and Clifford JJ, declined the application to review Cooper J's decision. The legal issues before the Court of Appeal involved the interpretation of the definition of "incapacitated person" under the High Court Rules 2016, the applicability of these rules to the Court of Appeal, and whether the appointment of a litigation guardian was necessary and appropriate in this case. The Court found that the definition of "incapacitated person" was not satisfied based on the evidence presented, and therefore, the application to appoint a litigation guardian was declined.

The Court of Appeal noted that while the Court of Appeal (Civil) Rules 2005 do not provide for the appointment of litigation guardians, the High Court Rules 2016 could be applied by analogy to promote the ends of justice. However, the Court found that the appellant did not meet the definition of an "incapacitated person" under the High Court rules, as there was no evidence to suggest she was incapable of understanding the issues or giving instructions. Although Lang J in the High Court had reached a different conclusion, the Court of Appeal was not bound by that decision and highlighted the limited nature of the appointment made by Lang J. The Court of Appeal ultimately declined the application to review Cooper J's decision and made no award of costs as it was a matter for the Court.

Orders