Kelly v Carter - [2025] NZHC 978

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…

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 Kelly v Carter

Details

AGLC: Kelly v Carter [2025] NZHC 978
Case: [2025] NZHC 978
Decision Date: 28 April 2025

CaseChat Overview and Summary

This case concerns an appeal by Mr Kelly against decisions of the Family Court. Mr Kelly is appealing from decisions of the Family Court in a proceeding between him and his former partner, Ms Carter. The appeals are being heard together and have been set down for hearing on 9 June 2025. 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. The issues that arise are whether Mr Tyrrell holds Mr Kelly’s confidential information which, if disclosed, is likely to affect Mr Kelly’s interests adversely, whether there is a real or appreciable risk that the confidential information will be disclosed, and whether the Court should exercise its discretionary power to disqualify Mr Tyrrell from acting further.

The court found that Mr Tyrrell did not hold Mr Kelly’s confidential information which, if disclosed, is likely to affect Mr Kelly’s interests adversely. Mr Tyrrell had not acted for Mr Kelly, nor did he agree to do so. The court found it implausible 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. 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. The court found there was no risk of further disclosures.

The court found that it should not exercise its discretionary power to disqualify Mr Tyrrell from acting further. The court found that had Mr Tyrrell retained the email of 27 April 2022 there would be several factors relevant under this heading. However, as noted, the only information retained by Mr Tyrrell has been disclosed. The court found that the prejudice that would undoubtedly result for Ms Carter if Mr Tyrrell could not act which strongly favours not restraining Mr Tyrrell from acting.

Mr Kelly’s application that Mr Tyrrell be restrained from acting for Ms Carter in this proceeding is dismissed. The parties should submit a memorandum on costs within five working days. The court also made further directions concerning the future conduct of this proceeding.

Orders