Kelly v Carter
[2025] NZHC 978
•28 April 2025
REDACTED JUDGMENT
NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2024-409-325
[2025] NZHC 978
UNDER Family Violence Act 2018 (s 177) and High Court Rules 2016 (Part 20) IN THE MATTER
of an appeal against a decision of the Family Court at Christchurch
BETWEEN
KELLY
Appellant
AND
CARTER
Respondent
Hearing: 11 April 2025 Appearances:
B N Snedden for Appellant H A Evans for Respondent
Judgment:
28 April 2025
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
(Application to restrain counsel from acting)
This judgment was delivered by me on 28 April 2025 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:
KELLY v CARTER [2025] NZHC 978 [28 April 2025]
[1] Mr Kelly is appealing from decisions of the Family Court in a proceeding between him and his former partner, Ms Carter.1 The appeals are being heard together and have been set down for hearing on 9 June 2025.2 This judgment concerns an application by Mr Kelly for an order that Ms Carter’s counsel, Mr Grant Tyrrell, be prohibited from acting for her in relation to the appeals. Mr Tyrrell has accepted instructions to act for Ms Carter on legal aid. Ms Carter wishes Mr Tyrrell to continue to act for her.
[2] Mr Kelly says that prior to the hearings in the Family Court both he and his former counsel, Mr Kerry Cook, communicated with Mr Tyrrell about his case with a view to retaining Mr Tyrrell to act and that Mr Tyrrell is in possession of confidential information and knowledge of him and his affairs that, if disclosed to Ms Carter, would be adverse to his interests. Mr Tyrrell does not accept he holds any of Mr Kelly’s confidential information.
[3]The issues that arise are:
(a)Does Mr Tyrrell hold Mr Kelly’s confidential information which, if disclosed, is likely to affect Mr Kelly’s interests adversely?
(b)Is there a real or appreciable risk that the confidential information will be disclosed?
(c)Should I exercise the Court’s discretionary power to disqualify Mr Tyrrell from acting further?
[4] There is a further issue that arises concerning Mr Kelly’s failure to comply with Court directions so the appeals can be heard on 9 June 2025 as scheduled, and what steps the Court should take to ensure compliance.
1 Kelly v Carter [2024] NZFC 7104; Carter v Kelly [2024] NZFC 9744. In accordance with current practice, pseudonyms have been used instead of the parties’ real names.
2 Kelly v Carter HC Christchurch CIV-2024-407-325/722, 3 February 2025, Mander J (Minute).
A preliminary issue
[5] Mr Kelly has until recently represented himself in these appeals. On 9 April 2025, that is two days prior to the hearing of this application, Mr Kelly filed a memorandum advising that counsel had been instructed to act for him subject to leave being granted to appear by audio-visual link (AVL). That request was granted. Mr Snedden appeared as Mr Kelly’s counsel at the hearing. Mr Snedden received his instructions to act from Mr Kelly’s solicitors, Lundon Partners.
[6] Following the hearing Mr Kelly filed a further memorandum and a substantial affidavit. In his memorandum Mr Kelly said, amongst other things:
(a)he had never spoken to “[m]y new barrister”;
(b)his request to be heard by AVL had been refused;
(c)there was fresh evidence the Court needed to consider (being his further affidavit);
(d)if his affidavit was not accepted he must apply for a rehearing;
(e)the solicitor who had been helping him to find barristers (who I understand is Mr Dominic Lundon) had not been instructed to act for him in relation to court matters; and
(f)Mr Lundon had now accepted instructions to act for a third party giving rise to a conflict and could not act for Mr Kelly.
[7] Mr Kelly was not refused permission to attend the hearing by AVL. His request that his counsel appear by AVL was granted. The connection details were sent by email to Mr Kelly. He forwarded them to Mr Lundon who, in turn, forwarded them to Mr Snedden. Mr Kelly was aware he was to be represented by counsel at the hearing and had the ability to attend himself had he wished.
[8] As to the further affidavit, Mr Kelly previously filed an affidavit in support of his application. This latest affidavit is an attempt to provide substance to his earlier evidence as to his level of contact with Mr Tyrrell. The evidence is not cogent nor consistent with documentary evidence before the Court. There is no reason Mr Kelly could not have filed this evidence earlier and Mr Tyrrell has had no opportunity to respond to it. I will not consider it.
[9] On 17 April 2025 Mr Kelly filed a further memorandum. He says, correctly, that prior to the hearing neither he nor his counsel were told an email of importance to this application had been disclosed by Mr Tyrrell to Ms Carter. He says this should be relevant to costs. He attached a further email from Mr Cook which he believes supports a contention that Mr Tyrrell had agreed to act for him.
[10] Mr Kelly also referred to his medical condition, difficulties he is experiencing in obtaining legal representation and that he is under enormous pressure due to other court matters relating to Ms Carter. He asked for more time to engage a barrister and to get a new support person. I will deal with this at the end of this judgment.
What happened
[11] The lawyers acting for Mr Kelly in the Family Court proceeding included Mr Cook who was instructed by Chapman Tripp, Auckland. Mr Cook has sworn an affidavit in this application pursuant to r 13.7 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (Conduct and Client Care Rules).
[12] In late December 2021 Mr Cook advised Mr Kelly he was unable to continue to act for him due to pressure of other work. Mr Cook discussed with senior counsel, Mr Pip Hall KC, who might replace him. Four lawyers were identified. Mr Cook emailed Mr Kelly on 17 December 2021 with those four recommendations, which included Mr Tyrrell and Mr Grant Fletcher.
[13] Mr Cook says he “vaguely” recalls contacting Mr Tyrrell at this time and going through the case and file “though this conversation is not something I recall well and nor did I think it important enough to take notes of it”. There is a record of the
conversation in an email of 17 December 2021 sent by Mr Cook to Mr Kelly that reads:
[Redacted],
I have just spoken with Grant Tyrrell. Whilst he is available to take the matter, he is not “available for the first 6 months for a week long hearing”. I told him that would not be great, given that work needs to be done on the file. So Pip and me thought you should move to the second name on the list: Grant Fletcher – do you want me to call him?
[14] Mr Tyrrell says that he too vaguely recalls the telephone conversation but has no recollection of discussing the case in any detail. He says they would have discussed the nature of the case and thinks they may have discussed other potential counsel to assist and that the case was within his area but that he lacked capacity to act.
[15] The email that Mr Kelly provided with his most recent memorandum is dated 4 April 2022. The subject matter of the email is the Family Court proceeding. Mr Kelly has redacted the first paragraph of the email without explanation. In what remains Mr Cook asks Mr Kelly:
Also, have you had any luck in getting new counsel for the civil matter? I think that Grant Tyrrell might be now available to take on this brief on the Family Court but it would be best to have one lawyer dealing with the both.
Thoughts?
[16] Mr Kelly has not provided his response to Mr Cook’s email. The 4 April 2022 email confirms that Mr Tyrrell was not acting for Mr Kelly but Mr Cook had raised the possibility he might be available to do so.
[17] On 27 April 2022 Mr Kelly sent a two-page email to Mr Tyrrell. It was a request that Mr Tyrrell represent him. Mr Kelly refers to having been recommended to Mr Tyrrell by Mr Cook and Mr Hall KC which suggests he had had no prior contact with Mr Tyrrell. He describes his relationship and the proceedings with Ms Carter.
[18] Mr Tyrrell emailed Mr Kelly back that same day, confirming he would not act in these terms:
Hi [Redacted]
Thank you for your email. I am very sorry but I am heading into a trial (first of several next month) next week so I will be unable to assist on such short notice.
All the best.
[19] Mr Cook’s next contact with Mr Tyrrell on the subject of Mr Kelly’s representation appears to have occurred on 19 May 2022. There is a chain of emails between them that day.
[20] The first email is from Mr Cook to Mr Tyrrell at 2.16 pm with the subject matter “Fletch”, which is a reference to Grant Fletcher. It simply says, “Don’t forget to ask if you have a chance”. This refers to Mr Tyrrell asking Mr Fletcher whether he could act for Mr Kelly.
[21] Mr Tyrrell responded at 2.15 pm, saying “Good reminder, spoke [to] him,, explained situation, suggested code share with JAN, he is keen”. Mr Cook replied “Excellent”.
[22]The reference to “JAN” and “code share” is explained by the next email at
3.06 pm when Mr Cook emailed Mr Kelly:
[Redacted],
I discussed matters with Grant Tyrrell and he cannot do it but has talked to Grant Fletcher who will do it with his partner, another (more junior) barrister named Jenny North.
Your views?
…
[23] Mr Kelly replied at 3.45 pm asking why Mr Tyrrell did not want to assist and with questions about the engagement of Mr Fletcher. Mr Cook replied at 3.47 pm. Insofar as it concerns Mr Tyrrell, he wrote:
4Tyrrell is too [busy] and is worried about letting other clients down. In fact, he has tried to shift some other work too.
[24] The hearings in the Family Court were in June 2024, that is over two years after these exchanges. Mr Kelly was then represented by another barrister, Mr Anselm Williams.
[25] The first of Mr Kelly’s appeals was filed on 9 July 2024. Mr Tyrrell gave notice he was acting for Ms Carter on around 9 September 2024. Mr Kelly did not object to Mr Tyrrell’s involvement at that time. It appears an objection was first raised in a memorandum filed with the Court on 31 January 2025 for a teleconference with Mander J on 3 February 2025. Mander J directed Mr Kelly to take the matter up with Mr Tyrrell and that if he was unsatisfied with the situation it would need to be formally raised with the Court.
[26] It appears there were then telephone calls made to Mr Tyrrell by Mr Kelly’s assistant about the matter. Mr Kelly’s assistant also sent an email to Mr Tyrrell on 3 February 2025 asserting that Mr Tyrrell had spoken to Mr Cook about Mr Kelly’s case in detail “in the aim of acting for Mr Kelly”. She referred to the 27 April 2022 email and asserted it was sent after Mr Tyrrell had indicated he would act for Mr Kelly and that it contained confidential and privileged information. She did not accept Mr Tyrrell’s advice that he would not discuss the email with Ms Carter.
[27]Mr Tyrrell responded on 13 February 2025 as follows:
I do not accept your characterisation of the email. It appears nothing more than a brief overview of work to be done and the case as you saw it. There is no disclosure against interests or any matter that has not already been ventilated in the Family Court.
Although, as you note, the duty of confidence applies to pre-engagement disclosures whether or not the retainer eventuates, I am unable to see anything falls within the category of a “disclosure.”
There must be a real, not fanciful, risk of confidential information being used against you. I am unable to discern anything in the email 27 April 2022 that is not already part of the case considered for the Court and/or relevant to the appeal.
[28] In a subsequent email Mr Tyrrell confirmed he had searched his computer records and the only emails he had found concerning Mr Kelly was the exchange on 27 April 2022.
[29] This application was filed on 3 March 2025. It was initially to be heard on 28 March 2025 and Mr Kelly filed submissions for that hearing dated 26 March 2025. He attached to those submissions several documents, including his 27 April 2022 email. Mr Tyrrell forwarded those submissions to Ms Carter, not realising the 27 April
2022 email was attached. The email has therefore been disclosed to Ms Carter. Mr Evans advised the Court this had occurred at the hearing on 11 April 2025.
[30] Upon learning of the disclosure, I raised with Mr Snedden whether Mr Kelly would wish to pursue his application. Mr Snedden agreed to take instructions both in relation to that issue and Mr Kelly’s non-compliance with the timetable directions for the substantive hearing. Subsequently Mr Kelly filed his memorandum stating he was again acting for himself.
The law
[31] The Court has jurisdiction to prevent lawyers from continuing to act for a party to litigation where that is necessary to maintain the intergrity of the judicial process.3 While a lawyer’s obligations under the Conduct and Client Care Rules may be relevant to the decision whether to restrain a lawyer from acting,4 it is not necessary to establish that the lawyer has breached some ethical or other obligation,5 nor is the jurisdiction exercised to punish a lawyer for misconduct.
[32] An often cited statement of principle was made by Richardson J in Black v Taylor as follows:6
Disqualification will ordinarily be the appropriate remedy where the integrity of the judicial process would be impaired by counsel's adversarial representation of one party against the other. The decision to disqualify is not dependent on any finding of culpable conduct on the lawyer's part. Disqualification is not imposed as a punishment for misconduct. Rather it is a protection for the parties and for the wider interests of justice. The legitimacy of judicial decisions depends in large part on the observance of the standards of procedural justice. Where the integrity of the judicial process is perceived to be at risk from the proposed or continuing representation by counsel on behalf of one party, disqualification is the obvious and in some cases the only effective remedy although considerations of delay, inconvenience and expense arising from a change in representation may be important in determining in particular cases whether the interests of justice truly demand disqualification.
3 Black v Taylor [1993] NZLR 403 (CA).
4 Tietjens v Quigley [2015] NZHC 3276, [2016] NZAR 154 at [33].
5 Fruit Shippers Ltd v Petrie [2019] NZHC 2694, [2019] NZAR 1832 at [20].
6 Black v Taylor, above n 3, at 412.
[33] The Courts have also recognised the potential for restraining applications to be made for tactical reasons. In Li v Liu the Court of Appeal said:7
... the court should not lightly interfere in a party’s fundamental right to counsel of their choice, particularly where considerations of delay in the application, inconvenience, or sunk cost favour the affected party. Further, the court should be vigilant in preventing objections whose purpose is only to disrupt or inconvenience the other side. To allow the judicial process to be played in this tactical fashion would itself be an unacceptable impairment.
(footnotes omitted)
[34] Mr Kelly relied upon rr 8.1, 8.7 and 8.8 of the Conduct and Client Care Rules, which relevantly provide as follows:
Duration of duty of confidence
8.1 A lawyer’s duty of confidence commences from the time a person makes a disclosure to the lawyer in relation to a proposed retainer (whether or not a retainer eventuates). The duty of confidence continues indefinitely after the person concerned has ceased to be the lawyer’s client.
…
Use of confidential information prohibited
8.7A lawyer must not use information that is confidential to a client (including a former client) for the benefit of any other person or of the lawyer.
8.7.1A lawyer must not act for a client against a former client of the lawyer or of any other member of the lawyer’s practice where—
(a)the practice or a lawyer in the practice holds information confidential to the former client; and
(b)disclosure of the confidential information would be likely to affect the interests of the former client adversely; and
(c)there is a more than negligible risk of disclosure of the confidential information; and
(d)the fiduciary obligation owed to the former client would be undermined.
…
7 Li v Liu [2018] NZCA 528, [2019] NZAR 259 at [23].
Other confidential information
8.8A lawyer must not breach or risk breaching a duty of confidence owed by the lawyer that has arisen outside a lawyer–client relationship, whether to benefit the lawyer, a client, or otherwise. In such a case the lawyer must not act for a client against a person in respect of whom confidential information relevant to the matter in issue is held.
(footnote omitted)
[35] There was a helpful analysis of the relevant law in 100 Investments Ltd v Walker.8 Campbell J confirmed that the overarching question on a restraint application is whether allowing a lawyer to continue to act will impair the integrity of the judical process. He identifed at least three situations where that might occur; namely where the lawyer would, given the issues raised in a proceeding, in effect be defending their own conduct or advice; where the lawyer may be required to give evidence of a contentious nature in the proceeding; and where the the lawyer acted for a party against a former client.9
[36] In respect to this third category of case, Campbell J considered that the circumstances in which a lawyer would be restrained from acting against a former client were limited to where the restraint was necessary to protect confidential information.10 He said he was bound to apply the approach taken by the Court of Appeal in Russell McVeagh McKenzie Bartleet & Co v Tower Corporation which held the Court must ask itself the following three questions:11
(a)Is confidential information held which, if disclosed, is likely to affect the former client’s interests adversely?
(b)Viewed objectively, is there a real or appreciable risk that the confidential information will be disclosed?
(c)If the first two questions were answered affirmatively, should the Court’s discretionary power to disqualify be exercised?
8 100 Investments Ltd v Walker [2023] NZHC 2227, [2023] 3 NZLR 78.
9 At [35]–[41].
10 At [56].
11 Russell McVeagh McKenzie Bartleet & Co v Tower Corporation [1998] 3 NZLR 641 (CA) at 651.
[37] In respect to the third of these questions, Campbell J noted that this involved a balancing exercise where the Court had to recognise the significance and importance of the special fiduciary relationship which gives rise to the duty of protection of confidential information from disclosure but also take into account the competing factors of a person’s right to the services of a lawyer of choice and the corresponding right of the lawyer to offer his or her services to the public generally.12
[38] The approach taken by the Court of Appeal in Russell McVeagh, and followed in 100 Investments Ltd v Walker, was subject to criticism in Prince Jefri Bolkiah v KPMG (A Firm), where Lord Millett said:13
... it is incumbent on a plaintiff who seeks to restrain his former solicitor from acting in a matter for another client to establish (i) that the solicitor is in possession of information which is confidential to him and to the disclosure of which he has not consented and (ii) that the information is or may be relevant to the new matter in which the interest of the other client is or may be adverse to his own. ...
[39] Lord Millett concluded that the Court should intervene and restrain a party’s former solicitor from acting in such circumstances unless it was satisfied there was no risk of disclosure.14
[40] I take the same view as Campbell J, that I am bound by the approach of the Court of Appeal in Russell McVeagh, albeit that I do not consider taking the stricter approach favoured by Lord Millett would make any difference to the result of this case.
[41] There have also been cases that refer to the “getting to know you” principle. This describes the circumstance where it is said a lawyer has come into possession of knowledge about a client of an intangible nature which may provide advantage to a client who instructs that lawyer to act against his or her former client.15 I find persuasive the view expressed by Lord Millet in Prince Jefri Bolkiah16 and Gilbert J
12 100 Investments Ltd v Walker, above n 8, at [48].
13 Prince Jefri Bolkiah v KPMG (A Firm) [1999] 2 AC 222 (HL) at 235.
14 At 237.
15 Mintel International Group Ltd v Mintel (Australia) Pty (2000) 18 ALR 78 at [39].
16 Prince Jefri Bolkiah v KPMG (A Firm), above n 13.
in Torchlight Fund No 1 LP (in rec) v NZ Credit Fund (GP) 1 Ltd,17 that the fiduciary obligation owed by a lawyer to his or her client comes to an end upon the termination of the retainer subject only to the obligation to protect the client’s confidential information.
[42] I note also the following passage from Professional Responsibility in New Zealand:18
The courts are only likely to apply this principle in extreme cases, if it can be established that the lawyer and the client have had a long course of dealing that is of a nature that the lawyer has acquired information about the client that could provide an advantage to someone acting against the client.
Mr Kelly’s submissions
[43] Mr Kelly argues Mr Tyrrell is in possession of his confidential information which would harm him if disclosed to Ms Carter, and that there is a clear risk to the administration of justice if counsel is seen to “switch sides” after being privy to sensitive and strategic information of the opposing party.
[44] At the hearing Mr Snedden submitted that Mr Kelly’s application is advanced on two discrete bases, namely that Mr Tyrrell is in possession of confidential information that may be adverse to Mr Kelly’s interests and the “getting to know you” principle.
[45] Mr Snedden submitted that Mr Kelly did not rely only upon the 27 April 2022 email, which I undestood him to accept in isolation did not provide a sufficient basis to restrain Mr Tyrrell from acting. He referred to the email correspondence between Mr Cook and Mr Tyrrell, and submitted there was evidence of discussions and telephone calls and that the reasonable observer with knowledge of these facts would consider that Mr Tyrrell may be in possesion of other confidential information adverse to the interests of Mr Kelly.
17 Torchlight Fund No 1 LP (in rec) v NZ Credit Fund (GP) 1 Ltd [2014] NZHC 2552, [2014] NZAR 1486 at [19].
18 Matthew Palmer (ed) Professional Responsibility in New Zealand (online looseleaf ed, LexisNexis) at [21.1.2].
The respondent’s submissions
[46] The respondent’s position is that the suggestion Mr Tyrrell may have come into possession of information about Mr Kelly of an intangible nature such that the “getting to know you” principle should apply is fanciful19 when Mr Kelly was never a client of Mr Tyrrell and his knowledge of Mr Kelly was limited to a few email communications.
[47] It was submitted the only information Mr Tyrrell retained concerning Mr Kelly was the email of 27 April 2022 which did not contain any confidential information, and Mr Kelly has not identified anything in that email which could be adverse to him, particularly on appeal since all the issues between Mr Kelly and Ms Carter have been fully aired and adjudicated upon in the Family Court.
[48] Mr Evans submitted also that a finding that Mr Tyrrell was prohibited from acting based upon a single communication which was no more than an enquiry as to his availability to act with minimum disclosure as to dates, scope and nature of the case would have a chilling effect on the availability of counsel to accept legal aid assignments in a relatively small Bar. Mr Evans also stressed Ms Carter’s entitlement to counsel of choice.
[49] It was also submitted that the Court can reasonably infer Mr Kelly has made this application for a collateral purpose, namely to obtain an adjournment of the substantive hearing. In support of that submission Mr Evans referred to an email sent by Mr Kelly to Mr Tyrrell proposing that this application be put on hold if his request for a six month adjournment of the appeals was agreed to. Mr Kelly wrote:
However I propose that if an adjournment is agreed to as above (in essence pushing out all the deadlines by six months) and in light of settlement intentions as instigated by your client, the matter of the conflict could be placed on hold to avoid further escalation and cost or placed with the law society to review.
19 Mintel International Group Ltd v Mintel (Australia) Pty Ltd, above n 15, at [44].
Analysis
Does Mr Tyrrell hold Mr Kelly’s confidential information which, if disclosed, is likely to affect Mr Kelly’s interests adversely?
[50] Mr Tyrrell has not acted for Mr Kelly, nor did he agree to do so. I am satisfied that on each occasion he was approached, first by Mr Cook in December 2021 and then by Mr Kelly in April 2022, he did not accept instructions.
[51] Although cases I have referred to concern applications to restrain a party’s former solicitor from acting against them, for present purposes I accept the same principles may apply in circumstances where a lawyer agrees to receive confidential information in respect to a proposed retainer. That is consistent with rr 8.1 and 8.8 of the Conduct and Client Care Rules.
[52] I do not accept the assertion that Mr Tyrrell entered into discussions with Mr Cook with the aim of being engaged, or that Mr Kelly sent Mr Tyrrell the email of 27 April 2022 because Mr Tyrrell had indicated he would act. Mr Tyrrell was not chasing Mr Kelly’s work. The email correspondence shows Mr Tyrrell’s position that he could not act was consistent throughout.
[53] I also do not consider Mr Tyrrell would have entered into a detailed discussion with Mr Cook concerning Mr Kelly’s case or would have physically reviewed the files. Mr Cook has only a vague recollection of his discussion with Mr Tyrrell and prepared no notes of what was discussed.
[54] It is implausible, in my view, that Mr Tyrrell would have embarked on a detailed discussion of Mr Kelly’s case with Mr Cook when he was not able to accept instructions. Certainly if there was any information disclosed to Mr Tyrrell during his conversations with Mr Cook that was confidential it has not been identified and Mr Tyrrell could not be expected to recall it.
[55] The email of 27 April 2022 was sent by Mr Kelly to Mr Tyrrell following receipt of advice from Mr Cook suggesting the possibility Mr Tyrrell might act. It appears to have been unsolicited and upon receiving the email Mr Tyrrell was
immediately clear in his advice that he would not act. Mr Tyrrell had no reason to enter into any discussions with Mr Kelly about his email or to request further information about Mr Kelly’s case. I also do not see why he would he have paid close attention to the contents of the email, and it is not at all surprising that Mr Tyrrell did not recall it until the matter was raised in this proceeding.
[56] As I have noted, the email of 27 April 2022 has been disclosed to Ms Carter. For completeness, I should say that had that not occurred it would not have altered the result of this application. Mr Kelly has not explained what exactly is in the 27 April 2022 email that he regards as confidential and how the disclosure of it will be adverse to his interests. The application is advanced in broad terms with references in his submissions to the email expressing “personal views”, “litigation objectives” and “financial capacity”. However, that all related to the Family Court proceeding where the issues between him and Ms Carter were fully aired and determined.
[57] It is also relevant in this regard that in both Mr Kelly’s written submissions and Mr Snedden’s presentation the application was advanced on the basis that the information disclosed went beyond the 27 April 2022 email and included confidential information disclosed during telephone conversations. As I have said, I am not satisfied there were any such further disclosures but if there were I am satisfied there is no written record of them maintained by Mr Tyrrell and that he has no recollection of them.
Is there a real or appreciable risk that the confidential information will be disclosed?
[58] As I have noted, the only information retained by Mr Tyrrell has been disclosed. There is no risk of further disclosures.
Should I exercise the Court’s discretionary power to disqualify Mr Tyrrell from acting further?
[59] Had Mr Tyrrell retained the email of 27 April 2022 there would be several factors relevant under this heading. First, Mr Kelly delayed in making this application. The issue should have been raised immediately when Mr Tyrrell gave notice that he had been engaged to act for Ms Carter. If Mr Tyrrell was restrained from acting at this
late stage it would inevitably mean the hearing would be adjourned for a substantial period of time.
[60] Ms Carter is on legal aid. There is a limited pool of experienced counsel willing to accept civil legal aid assignments. There would be real concern about the ability of Ms Carter to obtain other suitable representation on legal aid.
[61] While Mr Kelly considers that adjourning the hearing would not prejudice Ms Carter, I do not accept that is the case. These appeals are not the only litigation between these two parties. The other proceedings include civil proceedings brought against Ms Carter in this Court by Mr Kelly and a company with which he is associated. Ms Carter is pursuing bankrupty proceedings against Mr Kelly in an effort to recover court awarded costs he has failed to pay her. There are, and have been, other proceedings. It is imperative that these proceedings be resolved as quickly as possible so the parties can get on with their lives.
[62] Further, there is the particular nature of these proceedings, concerning as they do a challenge to Ms Carter’s entitlement to protection orders. I agree with the comments of the Family Court Judge in refusing Mr Kelly’s application to adjourn the Family Court proceeding:20
[64] Mr Williams submits Ms Carter is not prejudiced by the delay as she is afforded the protection of the temporary protection order. However, the continuation of the temporary protection order does not diminish the ill-effects borne by Ms Carter of the proposed adjournment of the substantive hearing. The passage of time is difficult, not only for parties but also witnesses. Litigation can create a constant source of anxiety or stress for participants. It is arguable Family Violence Act proceedings come at even more significant financial and emotional cost to parties. A vulnerable party is not responsible for the predicament requiring legal protective remedies, yet becomes engaged in a court process that almost certainly draws them within the sphere (through court attendances) of an alleged perpetrator of violence.
[63] Related to this also is the finding of the Family Court that Mr Kelly was abusing the litigation process.21 Behaviours the Family Court Judge identified as constituting litigation abuse are reflected in the manner in which Mr Kelly has conducted these appeals.
20 Kelly v Carter, above n 1.
21 Carter v Kelly, above n 1, at [165].
[64] Then there is the submission that this application is made for tactical reasons so Mr Kelly can obtain an adjournment of the substantive hearing. I have serious concerns that is the case.
[65] Insofar as Mr Kelly relies upon the “getting to know you” principle, I do not see how that can have any application given the few and limited nature of the communications between Mr Kelly and Mr Tyrrell.
[66] There is a final point that needs to be considered and that is whether there is anything in the circumstances under which the 27 April 2022 email was disclosed that might engage the Court’s jurisdiction to restrain Mr Tyrrell from acting because that is necessary to protect the integrity of the justice system. I do not believe there is. First, for the reasons I have given I do not consider that the disclosure will have any adverse consequences for Mr Kelly. Second, there has been no suggestion that Mr Tyrrell’s explanation that the disclsoure was accidental is not accepted. If there is any criticism to be made of Mr Tyrrell it could only be that he should have read Mr Kelly’s submissions before forwarding them to his client, but in fairness he would not expect the email would be attached to submissions. Third, the authorities make it clear that an application to restrain is not to be used as a means of disciplining or punishing a lawyer. Fourth, I need to weigh in the balance the prejudice that would undoubtedly result for Ms Carter if Mr Tyrrell could not act which strongly favours not restraining Mr Tyrrell from acting.
[67] For those reasons Mr Kelly’s application to restrain Mr Tyrrell from acting for Ms Carter in this proceeding will be dismissed.
Future conduct of this proceeding
[68] Mr Kelly has repeatedly failed to comply with timetable directions. His failure to do so has been a constant feature of this litigation and has now put the hearing scheduled for 9 June 2025 in jeopardy. To illustrate the point, I note the following:
(a)On 23 October 2024 I issued standard directions for an appeal requiring Mr Kelly to file further points on appeal and a common bundle by 6 December 2024 and to file his submissions/chronology by
20 December 2024. I noted in my minute that I was taking account of Mr Kelly’s personal circumstances, giving him more time than would ordinarily be extended for taking steps in the proceeding. Mr Kelly did not comply with those directions.
(b)On 22 November 2024 Mr Kelly filed a memorandum requesting that the timetable be abandoned to allow him time to engage counsel who would suggest a new appropriate timetable. The request was refused and I directed Mr Kelly to liaise with Mr Tyrrell to discuss any variation to the timetable that could be agreed.
(c)On 5 December 2024 I issued a minute recording that Mr Kelly was opposing the setting down of his appeals on 9 June 2025, raising several issues including his inability to instruct counsel, his health, the amount of work involved in the appeal and costs. I confirmed the appeal would proceed on 9 June 2025, and that Mr Kelly should be discussing any variation to the existing timetable with Mr Tyrrell and if they could not agree they should file memoranda setting out their respective positions by 19 December 2024.
(d)On 3 February 2025 the appeals were called before Mander J where he made new timetable directions in substitution for those I had earlier made. The new directions required Mr Kelly to file the common bundle and serve submissions by 11 March 2025. Mr Kelly did not comply with those directions.
(e)On 17 March 2025 there was a further telephone conference attended by Mr Kelly. Whilst that dealt primarily with his application to restrain Mr Tyrrell from acting, I expressed concern about his failure to comply with timetable directions and required him to take immediate steps to comply with the directions made by Mander J.
(f)I issued a further minute on 3 April 2025, in which I again noted that Mr Kelly had not complied with the directions made by Mander J and that he should take immediate steps to comply with them.
(g)In my minute of 11 April 2025 I again referred to Mr Kelly’s failure to comply with the directions. I directed Mr Snedden to take instructions and confer with Ms Carter’s counsel in respect to any variation to the timetable required. As noted, following the hearing Mr Kelly advised he is now acting for himself. He has not complied with the timetable directions or suggested variation to the timetable.
[69] Mr Kelly has repeatedly raised his inability to retain counsel and his health issues as reasons why he has not been able to advance his appeals. I do not accept these are grounds to adjourn the hearing. Mr Kelly has had plenty of time to instruct counsel. He has had a great deal of litigation before this and other courts and in other recent cases he has instructed counsel to act for him, including King’s Counsel. Here, Mr Snedden was engaged and was able to represent Mr Kelly at the hearing of his appeals but Mr Kelly has now again chosen to act for himself. He has, when necessary, ably represented himself in court despite his health issues. Further, if I was to delay the hearing of the appeals that would be grossly unfair and prejudicial to Ms Carter and a waste of the Court’s resources. These are Mr Kelly’s appeals and it is his obligation to advance them.
[70]Rule 7.48 of the High Court Rules 2016 relevantly provides:
7.48 Enforcement of interlocutory order
(1)If a party (the party in default) fails to comply with an interlocutory order or any requirement imposed by or under subpart 1 of Part 7 (case management), a Judge may, subject to any express provision of these rules, make any order that the Judge thinks just.
(2)The Judge may, for example, order—
(a)that any pleading of the party in default be struck out in whole or in part:
(b)that judgment be sealed:
(c)that the proceeding be stayed in whole or in part:
(d)that the party in default be [fined, ordered to do community work, or committed to prison under section 16 of the Contempt of Court Act 2019]:
(e)if any property in dispute is in the possession or control of the party in default, that the property be sequestered:
(f)that any fund in dispute be paid into court:
(g)the appointment of a receiver of any property or of any fund in dispute.
…
[71] Under r 7.48(2) the Court may make an unless order, the purpose of which is to enforce compliance with the Court’s orders and ensure the efficient conduct of proceedings.22 In SM v LFDB the Court of Appeal recognised that an unless order is an order of last resort, only to be made where there is a history of failure by a party to comply with earlier orders.23 Relevantly, the Court also said:
[27] Case management plainly matters to the immediate parties in any given case. It matters to litigants in other cases too, because it affects the time their cases will take to come to trial and influences their expectations of the Court; expectations matter because they influence the settlements in which the majority of civil proceedings end. And it matters to potential litigants — the public at large — because they should feel confident that the Court can try cases fairly, quickly and efficiently. From the perspective of a judge dealing with any given case, all these interests are relevant; all form part of the interests of justice.
[28] Obedience is the foundation upon which the Rules operate. From time to time the Court encounters a party who chooses not to obey, seeking perhaps to avoid accountability to the other party or to secure an unfair settlement. In such a case the interests of justice require that the Court do whatever is necessary to enforce obedience to its orders.
(footnotes omitted)
[72] I am satisfied that unless there is a sanction that enforces compliance with the Court’s directions Mr Kelly will not advance his appeals. Something must be done to bring this proceeding to a resolution. I therefore will provide a new timetable that will allow Mr Kelly to advance his appeals on the scheduled hearing date but on the basis that should he fail to comply with the directions his appeals shall be struck out.
22 Jessica Gorman and others (eds) McGechan on Procedure (online ed, Thomson Reuters) at [HR7.48.01(3)].
23 SM v LFDB [2014] NZCA 326, [2014] 3 NZLR 494.
Result
[73] Mr Kelly’s application that Mr Tyrrell be restrained from acting for Ms Carter in this proceeding is dismissed.
[74] The parties should submit a memoradum on costs within five working days. Submissions are to be no longer than five pages and costs will be determined on the papers.
[75]I make the following further directions:
(a)Mr Kelly must file and serve by not later than 3.30 pm on 15 May 2025:
(i)his submissions in support of his appeals;
(ii)a chronology (if relevant);
(iii)a common bundle of paginated and indexed copies of relevant documents including, if applicable:
1. the reasons for the decisions under appeal;
2. the sealed orders or judgments appealed from;
3. the pleadings;
4. the statements of evidence or affidavits;
5. the exhibits;
6. the notes of evidence, to the extent they are relevant to the issues on appeal; and
7. any other documents, if possible, in date sequence.
(b)Ms Carter must file and serve by no later than 3.30 pm on 29 May 2025:
(i)her submissions; and
(ii)a chronology (if relevant).
(c)The parties’ submissions must be not more than 30 pages in length and must contain:
(i)references to any specific passages in the evidence that the parties will refer to at the hearing; and
(ii)a list of and correct citations for any authorities mentioned.
(d)If Mr Kelly fails to comply with any of the directions above by a period of more than two working days his appeals shall be struck out and judgment entered for Ms Carter with costs to be fixed for Ms Carter by the Registrar.
(e)Mr Kelly’s appeals shall be heard as presently scheduled on 9 June 2025.
O G Paulsen Associate Judge
Solicitors:
Lundon Partners Ltd, Auckland
McGillivray Callaghan & Co, Christchurch
Copy to: Appellant
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