Official Assignee at Hamilton v Scott

[2013] NZHC 2919

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2012-470-815

CIV-2012-470-816 [2013] NZHC 2919

BETWEEN  THE OFFICIAL ASSIGNEE AT HAMILTON

Applicant

ANDLEWTYN MICHAEL SCOTT First Respondent

WOOD WALTON TRUSTEES (2010) LIMITED

Second Respondent

ALH TRUSTEE CO LIMITED Third Respondent

WOOD WALTON TRUSTEES (2011) LIMITED

Fourth Respondent

ASB BANK LIMITED Fifth Respondent

Hearing:                   29 October 2013

Appearances:           S N Cameron for Applicant

L M Scott in person

Judgment:                5 November 2013

JUDGMENT OF LANG J [on applications for review]

This judgment was delivered by me on 5 November 2013 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

THE OFFICIAL ASSIGNEE AT HAMILTON v LEWTYN MICHAEL SCOTT [2013] NZHC 2919 [5

November 2013]

[1]      On 15 March 2013, Associate Judge Doogue granted Mr Gowing leave to withdraw as counsel for Mr Scott.  He did so over Mr Scott’s opposition.  Mr Scott now applies for review of the Associate Judge’s decision.1

Background

[2]      In  these  proceedings  the  Official  Assignee  seeks  orders  setting  aside transactions that occurred before and after Mr Scott was adjudicated bankrupt on

22 July 2010.  Mr Scott instructed Mr Gowing to act on his behalf in defence of both applications.  On 6 November 2012, Mr Gowing filed a notice of opposition signed by Mr Scott in each proceeding.  He did not, however, file an affidavit in support of either notice of opposition.

[3]      Both proceedings were called for the first time in the Bankruptcy List in the High Court at Tauranga on 15 March 2013.   The Associate Judge dealt with Mr Gowing’s application for leave to withdraw as follows:

[2]       Mr Gowing sought leave to withdraw.  That application had earlier been signalled to the Court with Mr Gowing advising that he would be seeking leave.  I said I would grant Mr Gowing leave.  Mr Scott objected to me releasing Mr Gowing.  I told Mr Scott hat Mr Gowing had indicated that the relationship between himself and Mr Scott had broken down and Mr Gowing confirmed to me in Court that there was no possibility of his continuing to act for Mr Scott.  Mr Scott said that under the Lawyers and Conveyancers Act  (Lawyers:  Conduct  and  Client  Care)  Rules  2008,  Mr Gowing had an obligation to complete the regulated services required by the client under the retainer unless he terminated the retainer for good cause.  Mr Scott anticipated that the Court would conduct an enquiry into whether Mr Gowing had good cause to terminate the retainer.

[3]       Mr Scott said that he wanted to be heard on this matter and to file affidavits about the proposed termination of the retainer.  I told Mr Scott hat I did not intend to conduct the type of enquiry that he proposed.  It is not the function of the High Court when scheduling work to put cases on hold while enquiry is conducted into the type of matter that Mr Scott had raised.

[4]       While I did not advise Mr Scott that such was my view, I considered that any enquiry into the type of matter that Mr Scott wishes to raise will have to be conducted elsewhere.

[5]       I told Mr Scott that there was no way that the Court would order Mr Gowing to continue acting for Mr Scott so there would be no point in having the sort of inquiry that Mr Scott wanted me to.  Further, Mr Scott had known

1      Judicature Act 1908, s 26P(1) and High Court Rules, r 2.3.

for some time that Mr Gowing was not willing to act and he had apparently not taken steps to retain another lawyer.

[6]      Mr Scott said that my accepting Mr Gowing’s advice that the relationship is broken down was a fait accompli.  He objected to my dealing with the matter in this way.

[7]       I told Mr Scott that I would not permit proceedings to be obstructed by the Court being asked to enquire into disputes between the client and the lawyer.

Grounds advanced in support of application for review

[4]      Mr  Scott  pointed  out  that  Mr  Gowing  had  failed  to  comply  with  his obligation under r 7.20 to file an affidavit in support of the notices of opposition.  He had also failed to file an interlocutory application seeking leave to withdraw.  Had he done so, r 7.20 would also have required him to file an affidavit in support of that application.

[5]      Mr Scott contends that the Associate Judge was wrong to allow Mr Gowing to withdraw from the proceeding without first having received an affidavit from him explaining exactly why he felt he could no longer act for Mr Scott.

[6]      During the hearing before me, Mr Scott accepted that he did not wish Mr Gowing to continue to act for him.  Rather, he considered the Associate Judge should simply have declined his application for leave to withdraw.   Mr Scott saw a distinction between this situation and the Court requiring Mr Gowing to continue to act as Mr Scott’s counsel.

Decision

[7]      The problem with the approach advocated by Mr Scott is that, in order to substantiate the advice Mr Gowing gave the Associate Judge, he would have been required to file an affidavit detailing the matters that have led to the breakdown in the relationship between himself and Mr Scott.   This would inevitably require Mr Gowing to disclose to the Court and the Official Assignee communications that had taken place between himself and Mr Scott.  If Mr Gowing had taken that course, he would have breached his ethical obligation to Mr Scott to maintain confidentiality

and privilege in respect of all discussions between himself and his client.  Only Mr

Scott had the ability to waive that privilege.

[8]      The Court has an inherent power to control its own procedure.  This includes the ability, in my view, to permit counsel to withdraw from proceedings in circumstances where counsel advise the Court that their relationship with the client has broken down to the extent that counsel no longer believes in good conscience that he or she can continue to act for the client.  I do not consider that this would require counsel to file an interlocutory application or supporting affidavit in the manner Mr Scott suggests.   The Court is also entitled to rely on counsel’s advice regarding the state of the relationship between the client and himself or herself. Counsel appear as officers of the Court, and their primary duty is to the Court.

[9]      For these reasons, I do not consider that the Associate Judge erred in granting

Mr Gowing leave to withdraw as counsel.

Result

[10]     The application for review is accordingly dismissed.

Lang J

Solicitors:

Almao Douch, Hamilton

Copy to:
L M Scott