N v Solicitor T - [2017] NZHC 2102

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-001739 [2017] NZHC 2102

BETWEEN
A N AND D N

Plaintiffs

AND

A SOLICITOR T Defendant

CIV-2016-404-001629

BETWEEN A N AND D N Plaintiffs

ANDCOUNTIES MANUKAU DISTRICT HEALTH B OARD
Defendant

Hearing: 5 July 2017

Counsel:

ACM Fisher QC as Amicus Curiae
D N (self-represented Plaintiff) in Person

R M Stewart (together with T(Defendant)) for the Defendant in proceeding CIV-2016-404-1739

H H Ifwersen for the Defendant in proceeding CIV-2016-404-
1629

Judgment:

31 August 2017

JUDGMENT OF EDWARDS J

This judgment was delivered by me
on 31 August 2017 at 3.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel: ACM Fisher QC, Auckland
Solicitors: Fee Langston, Auckland
Meredith Connell, Auckland

Copy To: D N, Auckland

A N v A SOLICITOR T [2017] NZHC 2102 [31 August 2017]

Introduction

[1] These two sets of proceedings were commenced by Mr N on behalf of himself, and his wife, Mrs N. The history to both proceedings concerns Mrs N’s detention in a dementia unit in Auckland pursuant to orders of the Family Court.

[2] On 16 May 2017, I appointed Ms Fisher QC as amicus curiae to report to the Court on Mrs N’s status as a party to both proceedings, and to advise the Court on an appropriate course of action in the event that Mr N filed a notice of discontinuance in one or both of the proceedings.

[3] Mr N did in fact file those notices of discontinuance on 6 June 2017. On

12 June 2017, Brewer J accepted those notices of discontinuance and directed the proceedings to be listed in the Duty Judge List for further direction on the future course of the proceeding and the question of costs.

[4] Ms Fisher QC has filed a memorandum addressing those questions. I am very grateful to her for her comprehensive and considered submissions on the appropriate way forward. In short, Ms Fisher QC recommends that both proceedings be struck out and any orders as to costs be made against Mr N alone.

[5] The defendants in both proceedings support that course of action. Neither defendant seeks costs against Mrs N. Costs as between Mr N and solicitor T in the
1739 proceeding have been resolved by agreement. However, the defendant in the

1629 proceeding (the DHB), seeks costs on an indemnity or alternatively increased basis against Mr N.

[6] I have approached the question of the future direction of these proceedings by:

(a) first, considering whether they should be struck out; and

(b) second, determining questions of costs.

Background

[7] In 2016, the DHB’s applied for orders under the Protection of Personal and Property Rights Act 1998 (PPPR Act) requiring Mrs N to enter and reside in a dementia care unit, and revoking Mr N’s power of attorney for the personal care and welfare of Mrs N.

[8] Mr T was appointed lawyer for Mrs N in the Family Court proceedings in respect of those applications.…

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.

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Details

Case: [2017] NZHC 2102
Decision Date: 31 August 2017

CaseChat Overview and Summary

The case of A N and D N v A Solicitor T and the Counties Manukau District Health Board was heard by the High Court of New Zealand. The proceedings were commenced by Mr N on behalf of himself and his wife, Mrs N, following her detention in a dementia unit in Auckland. Mr N filed proceedings against the solicitor, Mr T, alleging negligence in his role as Mrs N's lawyer, and against the DHB, alleging negligence in the care provided to Mrs N under the compulsory treatment order. Both defendants sought to strike out the proceedings, and the defendants supported the course of action recommended by the amicus curiae, Ms Fisher QC. The court was required to decide whether the proceedings should be struck out and, if so, what orders should be made in relation to costs.

The court found that Mrs N was unable to continue the proceedings in her own name without the appointment of a litigation guardian, and that Mr N had lost any power or right to continue the proceedings in Mrs N's name once his power of attorney was revoked. The court also found that the proceedings did not have any merit which would warrant their continuation. The allegations against Mr T were weak and did not have a foundation, and the claims against the DHB were unsubstantiated. The court held that it was in Mrs N's best interests that the proceedings be brought to an end, and accordingly, both sets of proceedings were struck out and dismissed.

In relation to costs, the DHB sought an order of indemnity costs in the sum of $68,125.98, or alternatively, an order of increased costs in the sum of $63,636. The court found that the grounds for indemnity costs, at least up to the date of discontinuance on 6 June 2017, were established in the unusual circumstances of this case. However, the court declined to make any award of costs on an indemnity basis for steps taken after the Notice of Discontinuance was filed. The court considered an award of 2B costs appropriate for steps taken after the Notice of Discontinuance, and directed the DHB to file copies of their invoices or a breakdown of steps and associated costs, to enable a review to be made of the reasonableness of the quantum sought. Quantum shall be determined on the papers.

The statements of claim in both proceedings are struck out and the proceedings are dismissed. The DHB is entitled to indemnity costs up to the date that Mr N filed and served his Notice of Discontinuance. The DHB is entitled to an award of 2B costs for steps taken after this date. Counsel for the DHB shall file copies of their invoices, or a breakdown of steps and associated costs, which will enable a review to be made of the reasonableness of the quantum sought on or before Friday 15 September 2017. Quantum shall be determined on the papers.

Orders