Hunter v Ice Gymsports North Canterbury Inc

[2024] NZHC 822

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV 2024-409-000116

[2024] NZHC 822

BETWEEN

THOMAS KIEFER HUNTER by his

litigation guardian JESSE THOMAS HUNTER
Plaintiff

AND

ICE GYMSPORTS NORTH CANTERBURY INC

First Defendant

AFFINITY GYMNASTICS ACADEMY INC

Second Defendant

OLYMPIA GYMNASTIC ACADEMY INC
Third Defendant

GYMSPORTS NEW ZEALAND INC

Fourth Defendant

On the papers

Appearances:

D M Fraundorfer for the Plaintiff (no appearance due to VMR outage)

A J Davis for the Third Defendant
A M McCormick for the Fourth Defendant

Messrs Humphrey and Jones in attendance for the First and Second Defendants

Judgment:

16 April 2024

JUDGMENT OF TAHANA J

(Leave to be represented by non-lawyer)

This judgment was delivered by me on 16 April 2024 at 5.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

HUNTER v ICE GYMSPORTS NORTH CANTERBURY INC (Leave to be represented by non-lawyer) [2024] NZHC 822 [16 April 2024]

Introduction

[1]    The first and second defendant (the applicants) apply for leave to be represented by a non-lawyer. The first defendant, ICE Gymsports North Canterbury Inc (ICE) applies to be represented by Mr Nigel Humphreys, the founder and Club Manager of ICE. The second defendant, Affinity Gymnastics Academy Inc (Affinity) applies to  be represented by Mr Ryan  Jones, the President of Affinity.   Each of    Mr Humphrey and Mr Jones has filed an affidavit in support of each application.

[2]    The plaintiff applies to judicially review the decision of each of the applicants not to accept him as a member of their respective clubs. The plaintiff does not oppose the applications but his counsel notes that legal submissions will likely be required regarding the alleged discrimination by the clubs in breach of the Human Rights Act 1993.

[3]The third and fourth defendants support the applications for leave.

[4]    I must therefore determine whether there is justification for granting leave to the applicants to each be represented by a non-lawyer.

Applicable principles

[5]    The applicable principles were helpfully summarised in Keemati Ltd v Mr Civil Ltd as follows:1

[5]        There is no dispute as to the applicable principles. I adopt the summary contained in Dreamtech Designs & Productions Pty v Clownfish Entertainment Ltd which provides as follows:

[8]        The legal principles governing this application are well established. We gratefully adopt the following summary in the judgment of Stevens J in this Court in Kai Iwi Tavern Ltd v The New Zealand Guardian Trust Company Ltd:

[6]        In Re G J Mannix Ltd this Court held that it is “well settled” that “a company has no right to be represented in the conduct of a case in Court except by a barrister; or by a solicitor in Courts or proceedings where solicitors have the right of audience …”. Cooke J continued:

1      Keemati Ltd v Mr Civil Ltd [2021] NZHC 538 at [5].

There is a cognate rule that, apart from statutory exceptions, a corporation has no right to bring or carry on proceedings in a Court except by a solicitor. This refers to the filing of documents – writs, statements of defence, notices of appeal, etc.

[7]        This principle has recently been affirmed by this Court in New Zealand Cards Ltd v Ramsay and Commissioner of Inland Revenue v Chesterfields Preschools Ltd. The policy reasons behind this principle are set out at [34] of Chesterfields. Briefly stated, the rule ensures that proper consideration is given to the validity of proceedings, decreases the likelihood that appellants will require indulgences in the rules of procedure, and ensures that those who appear before the Court are cognisant of the duties and responsibilities that are owed to the Court.

[8]        The Court has a discretion to allow non lawyers to appear on behalf of companies where appropriate. As Cooke J stated:

In general, and without attempting to work out hard- and-fast rules, discretionary audience should be regarded, in my opinion, as a reserve or occasional expedient, for use primarily in emergency situations when counsel is not available or in straightforward matters where the assistance of counsel is not needed by the Court or where it would be unduly technical or burdensome to insist on counsel. Especially in minor matters, cost saving could also be a relevant factor. A “one man” company might be allowed to be represented by its owner if the Judge saw fit in a particular case. But it could not be right, for instance, to issue some sort of tacit continuing or general licence to an unqualified agent to appear in winding up or any other class of proceedings.

(footnotes omitted)

[6]       The above legal principles indicate that the general rule is that leave will not be granted other than in limited circumstances. The complexity of the proceeding and the financial position of the applicants are relevant but ultimately the Court has discretion as to whether or not to grant leave.

Should leave be granted?

[7]       I consider that leave should be granted to each of the applicants to be represented by a non-lawyer for the following reasons.

[8]       The nature of the litigation is not complex. The plaintiff alleges that each applicant took into account irrelevant and unlawful considerations in declining to accept the plaintiff as a club member. It is alleged that each decision constituted discrimination on the basis of family status in breach of the Human Rights Act. The plaintiff seeks a declaration that the decision of each applicant was therefore unlawful.

[9]       Mr Jones deposes that the plaintiff filed proceedings with similar allegations before the Human Rights Review Tribunal (HRRT). The applicants have applied to strike out that proceeding and the parties are awaiting the HRRT’s decision. While I accept that the legal issues arising in this proceeding (an application for judicial review) are likely to be slightly different to the legal issues before the HRRT, the legal issues are not necessarily complex. Both proceedings arise from the same factual background and both raise issues under the Human Rights Act.

[10]     The circumstances of each of the applicants is also relevant. They are both incorporated societies established for the purposes of providing gymnastics facilities to their respective communities. They are community focused incorporated societies with limited financial means. Affinity is a registered charity and operates as a not-for- profit. Mr Jones deposes that Affinity is under financial pressure and that expenditure on legal fees will result in money not being spent on the club and its community programs. Mr Humphreys deposes that ICE also operates as a not-for-profit and is also under financial pressure due to the HRRT proceedings.

[11]     The decision in AFFCO New Zealand Ltd v NZ Premium Trading Company Ltd2 supports the granting of leave in circumstances where the applicant is of limited financial means. In AFFCO, the Court noted that where a tightly-held private company cannot afford representation and where the interests of the company and a director are clearly aligned, a common-sense approach towards exercising the discretion is appropriate.3 In that case, the private company was in a difficult financial position and Mr Parkinson’s interests and the company’s interests were aligned.4 The Court granted the application for leave, to be represented by a non-lawyer.

2      AFFCO New Zealand Ltd v NZ Premium Trading Company Ltd [2017] NZHC 2218.

3 At [4].

4 At [4].

[12]      A common-sense approach is required here in circumstances where the dispute arises from access to a community-based club and not from complex commercial arrangements. I accept that the interests of Mr Humphreys and Mr Jones are aligned with the interests of their respective clubs.

[13]     I also consider that the affidavits of Mr Humphreys and Mr Jones indicate that they  each  have  the  necessary  competence   to   be   appointed   representatives. Mr Humphreys deposes that he has a  good  understanding  of  legal  proceedings. Mr Jones deposes that he is commercially trained and qualified with over 30 years of commercial experience and holds a good understanding of legal proceedings. While each of Mr Humphreys and Mr Jones are not legally trained, I accept that their evidence indicates they are likely to be capable of representing each of the applicants without requiring indulgences in the rules of procedure.

Result

[14]For the reasons set out above, I order that:

(a)leave  is  granted  for  the  first  defendant  to   be  represented  by   Mr Humphreys; and

(b)leave is granted for the second defendant to be represented by Mr Jones.

Tahana J

Counsel/Solicitors:

Holland Beckett Law, Tauranga Clark Boyce, Christchurch

A M McCormick, Barrister, Christchurch