N v Solicitor T
[2017] NZHC 2102
•31 August 2017
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 PersonR 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-
1629Judgment:
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. He was required to consider Mrs N’s competence to make submissions as to her personal care and welfare. He provided his report to the Family Court on 20 January 2016. He concluded that she did not have the capacity to make decisions on issues of welfare or property matters and recommended that the orders under the PPPR Act be made.
[9] Interim orders were made by the Manukau Family Court on 19 February
2016. They became final on 17 August 2016, and orders revoking Mr N’s power of attorney were also made at that time. Mr N lodged an appeal against the Family Court decision but that was subsequently abandoned.
[10] Mr N filed proceedings against Mr T in the High Court in July 2016 (and therefore before the final orders were made revoking his power of attorney). The proceedings were commenced in both their names jointly. The proceedings against Mr T appear to allege negligence in the conduct of his role as lawyer for Mrs N.
[11] At about the same time that he commenced the proceeding against Mr T, Mr N also filed a proceeding against the DHB on 13 July 2016. This proceeding is also in Mr N and Mrs N’s joint names.
[12] The claim is not easy to follow. As best I can make out it appears to allege negligence on the part of the DHB arising from the care provided to Mrs N pursuant to the compulsory treatment order dated 16 October 2015. It also alleges multiple breaches of the New Zealand Bill of Rights Act 1990 (NZBORA) as well as other breaches of other statutes dating back to 2012.
[13] Both defendants have applied to strike out the proceeding (Mr T’s application
is for defendant summary judgment in the alternative).
[14] As already noted, both claims were discontinued by Mr N filing a notice of discontinuance on 6 June 2017. The status of Mrs N and the future course of the proceedings remains the subject of this judgment.
Should the proceedings be struck out?
Relevant legal principles
[15] A court may strike out all or part of a pleading under r 15.1(1) if it:
(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b) is likely to cause prejudice or delay; or
(c) is frivolous or vexatious; or
(d) is otherwise an abuse of the process of the court.
[16] If a court strikes out a statement of claim under r 15.1 it may subsequently dismiss the proceeding under r 15.1(2).
[17] The rule does not affect the court’s inherent jurisdiction to otherwise dismiss
proceedings.
Mrs N’s status as a party
[18] Both sets of proceedings were commenced in Mr and Mrs N’s name, but it is apparent that Mr N in fact commenced them on behalf of Mrs N. It does not appear to be disputed that he had the power to do so as, at that stage, his power of attorney had not been revoked. However, as soon as Mr N’s power of attorney was revoked, he lost any power or right to continue those proceedings in Mrs N’s name.
[19] It is clear that Mrs N is not presently able to continue the proceedings in her own name without the appointment of a litigation guardian. The significant medical
evidence filed in the Family Court confirms that Mrs N lacks competence to manage her own affairs. The latest report from Dr Mark Fisher dated 17 May 2017 states that she is unable to understand the nature of advice given to her by an appointed solicitor and would not understand the purpose of the proceedings or be able to foresee the consequences of any order made.
[20] Although Mr N proposed in his written memorandum dated 28 June 2017, that he be appointed litigation guardian, he did not seek such an order when the proceedings were last called before me. In any event, as he previously acknowledged, he has a conflict of interest and it is not appropriate for him to
represent his wife’s interests.1
[21] The lack of representation for Mrs N to continue the proceeding is not an insurmountable hurdle, but poses a difficulty in conducting both proceedings in the short term. In any respect, for the reasons set out below, I am satisfied that the proceedings do not have any merit which would warrant their continuation.
Merits: the 1739 proceeding
[22] On my review of the pleadings and affidavit evidence produced in this proceeding, the allegations against Mr T cannot succeed.
[23] The pleadings are ill-drafted and may well support a claim for abuse of process. There appears to be no foundation for alleging that Mr T carried out his duties negligently. Rather, it would appear that Mr N is using the proceedings to vent his frustration at the orders made in the Family Court. An appeal from those orders was subsequently abandoned.
[24] The report from Dr Mackey is the only independent evidence relied on in support of the claim against Mr T. Ms Fisher QC spoke at length to Dr Mackey. He has provided an updated report dated 23 June 2017 which stresses that at the time he
wrote his earlier report, he was not aware of the full extent of Mrs N’s dementia.
1 Minute of Edwards J dated 17 May 2017 at [6].
[25] I am satisfied that the merits of the claim are very weak, and are unlikely to survive a summary judgment or strike out application in the event they were allowed to continue.
Merits: the 1629 proceeding
[26] I am unable to confidently identify the claim against the DHB from the pleadings. Any claim of wrongdoing on the DHB’s behalf is presently unsubstantiated, as are the alleged breaches of the NZBORA.
[27] For the record, I note that at the call of this proceeding in the duty judge list, Mr N submitted that the notice of proceeding he filed on 6 June 2017 was for both himself and his wife, as joint plaintiffs. On that basis therefore, there would be no need to strike out the proceeding, as it had already been discontinued. I have nevertheless reached an independent view that to the extent the proceedings still remain live, they should be struck out.
Overall interests of Mrs N
[28] Mrs N is currently residing in a dementia care unit where she is receiving treatment and care for her condition. In my view, there is no merit in allowing proceedings to continue that effectively amount to a collateral attack on the orders which allow that to happen. It is in Mrs N’s best interests that the proceedings be brought to an end.
[29] For this reason, and the others canvassed above, I have concluded that both sets of proceedings should be struck out. Orders accordingly are set out at the end of this judgment.
Costs
[30] The DHB seeks an order of indemnity costs in the sum of $68,125.98. This comprises the sum of $53,801.50 for attendances up to 6 June 2017 when the notice of discontinuance was filed, and a further sum of $14,324.48 for attendances after this date.
[31] In the alternative, an order of increased costs in the sum of $63,636 is sought. This has been calculated on a category 2, largely band C, basis with an uplift of 50 per cent for all steps taken in the proceeding.
[32] Rule 15.23 contains a presumption that the plaintiff will pay the defendant’s costs where the plaintiff discontinues a proceeding. There is no reason in principle why increased or indemnity costs cannot be awarded to a defendant on a discontinuance.2 The principles relevant to the consideration of an award of costs after a notice of discontinuance have been filed will also be relevant to this enquiry in my view.3
[33] Rule 14.6 governs the circumstances in which increased costs and indemnity costs may be awarded by a court. The relevant parts of that rule relating to indemnity costs are as follows:
14.6 Increased costs and indemnity costs
…
(4) The court may order a party to pay indemnity costs if—
a) the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding; or
b)the party has ignored or disobeyed an order or direction of the court or breached an undertaking given to the court or another party; or
…
f) some other reason exists which justifies the court making an order for indemnity costs despite the principle that the determination of costs should be predictable and expeditious.
[34] Counsel for the DHB has referred to a number of grounds in support of the contention that Mr N has needlessly prolonged the proceedings. Some of those grounds (such as the repeated requests for adjournments) may well have prolonged
the proceeding. However others, such as the number and length of Court
2 Parts Import Co v Tse HC Auckland CIV-2007-404-6648, 31 March 2009 at [6].
3 Andrew Beck and others McGechan on Procedure (online looseleaf, Thomson Reuters) at
[15.23.01].
appearances, are not necessarily a consequence of Mr N’s conduct of the proceeding.
Those grounds alone do not meet the threshold for indemnity costs in my view.
[35] However, I am satisfied that Mr N has needlessly prolonged these proceedings by filing prolix documents which contain unintelligible, incoherent, repetititive and irrelevant material. Those documents include allegations against the DHB of harassment, failing to care for Mrs N, and using false and misleading information. They also include allegations of torture. Those are serious allegations which have no place in Court documents unless they can be substantiated. In this case there is no evidence at all that any of these allegations have any merit.
[36] Furthermore, I am satisfied that Mr N has advanced claims that were not reasonably arguable and have been rejected in a number of forums. As set out above, at the heart of the proceeding is a concern about the continued detention of Mrs N. That concern is understandable. But it is a concern which has been reviewed by a
number of different Courts, including the Family Court,4 and in a number of
unsuccessful writs for habeas corpus filed in this Court.5 Against that background the proceedings filed against the District Health Board are vexatious.
[37] I am therefore satisfied that the grounds for indemnity costs, at least up to the date of discontinuance on 6 June 2017, are established in the unusual circumstances of this case.
[38] However, I do not consider a claim for indemnity costs after the notice of discontinuance was filed falls into the same category. Mr N did all that he could do to bring the proceedings to an end by filing the notice of discontinuance on 6 June
2017. He did not have any power to discontinue the proceedings on behalf of Mrs N. The costs that were incurred after 6 June 2017 were therefore in relation to the status of Mrs N as a party and whether the proceedings should be continued in her
name alone.
4 Re A L N (final personal orders)(reasons) FC Manukau FAM-2016-092-000007, 10 October
2016.
5 N v Bupa Care Services (New Zealand) Ltd [2017] NZHC 499; N v New Zealand Police [2017] NZHC 840; N v Counties Manukau District Health Board (Minute of Downs J dated 15 May
2017).
[39] Accordingly, I decline to make any award of costs on an indemnity basis for steps taken after Mr N filed his Notice of Discontinuance after 6 June 2017. However, I accept that Mr N may be considered responsible for these costs in the sense that he commenced and continued proceedings in Mrs N’s name. These are costs that naturally flow as a result of him taking that action. Although I do not consider there is any basis to award indemnity costs for steps taken after the Notice of Discontinuance, I do consider an award of 2 B costs is appropriate for these steps.
[40] Finally, the award of indemnity costs is subject to the actual costs being reasonable in all the circumstances. Counsel for the DHB is to submit invoices, or a breakdown of all steps with the corresponding cost, to ensure that the quantum of indemnity costs sought is reasonable in the circumstances. Quantum will be finally determined upon receipt of that further information.
Result
[41] The statements of claim in both proceedings are struck out and the proceedings are dismissed.
[42] 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.
Edwards J
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