Pool v Summerlee
[2020] NZCA 35
•3 March 2020 at 12.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA100/2019 [2020] NZCA 35 |
| BETWEEN | ANTHONY JOHN POOL |
| AND | RICHARD BENJAMIN SUMMERLEE, ALEXANDER JAMES SUMMERLEE AND SARAH ELIZABETH SUMMERLEE |
| Court: | French and Brown JJ |
Counsel: | Appellant in person |
Judgment: | 3 March 2020 at 12.30 pm |
JUDGMENT OF THE COURT
Application for appointment of legal counsel and other orders is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Brown J)
On 8 March 2019 Associate Judge Lester made an order removing Mr Pool as a trustee of the Donald Pool Summerlee Children’s Trust (the Trust) and appointing the New Zealand Guardian Trust Company Ltd as replacement trustee.[1] Mr Pool appeals against that judgment.
[1]Summerlee v Pool [2019] NZHC 387.
By memorandum dated 10 February 2020, in reliance on what is described as a serious respiratory medical condition, Mr Pool sought:
(a)the appointment of legal counsel to assist him;
(b)the appointment of a litigation guardian to assist him for the purposes of the appeal; and
(c)an adjournment of the appeal “sine die” until Mr Pool has recovered from his medical condition and has been declared medically fit and able to actively participate in Court proceedings again.
The respondents oppose the application.
Background
Mr Pool was one of three trustees of the Trust. The beneficiaries of the Trust invoked the rule in Saunders v Vautier[2] to bring forward the vesting date and terminate the Trust on the grounds that they were of full age and capacity and collectively held an absolute vested interest in the Trust property. The beneficiaries applied by way of summary judgment for an order removing Mr Pool. As Mr Pool did not dispute that the beneficiaries were entitled to invoke the rule in Saunders v Vautier, Associate Judge Lester ruled that he did not have a defence to the claim and that an order was appropriate. Mr Pool filed this appeal on 14 March 2019.
[2]Saunders v Vautier (1841) 4 Beav 115, 49 ER 282.
The Trust owned a property at 17 Patten Street, Christchurch, which, according to the judgment, had been occupied by Mr Pool since approximately 12 December 2015. Mr Pool lodged a caveat against the title to the property. However on his application for an order that the caveat not be removed, on 14 May 2019 a consent order was made by Osborne J directing that the caveat be removed forthwith and that Mr Pool vacate the property by 14 June 2019.[3]
[3]Pool v Summerlee [2019] NZHC 1059.
By letter dated 21 March 2019, Mr Pool was advised by this Court of the requirement to pay security for costs for the appeal in the sum of $6,600 by 11 April 2019 and of the requirement in r 43 of the Court of Appeal (Civil) Rules 2005 to apply for the allocation of a hearing and to file a case on appeal by 14 June 2019.
Mr Pool did not pay security for costs, nor did he comply with the r 43 requirement by 14 June 2019. Consequently his appeal was deemed to be abandoned. However on 13 June 2019 he filed an informal application for an extension of time.
On 19 June 2019 Mr Pool filed an application for a stay of execution of Associate Judge Lester’s judgment. That application was declined on 10 July 2019.[4]
[4]Pool v Summerlee [2019] NZCA 295.
On 24 September 2019 this Court granted Mr Pool’s application for an extension of time. However the Court stated:[5]
[13] The factors that need to be considered when assessing Mr Pool’s application weigh against him. We are, however, in the overall interests of justice, willing to extend Mr Pool one opportunity to get the appeal on track. We do so primarily because Mr Pool is self-represented.
[14] Mr Pool is to file the case on appeal and apply for a hearing date within 20 working days of the day of delivery of this decision. Failure to comply with this timetable will result in Mr Pool’s appeal being deemed to be abandoned.
[5]Pool v Summerlee [2019] NZCA 453.
Mr Pool did not file the case on appeal or apply for a hearing date within 20 working days. On 22 October 2019 he filed a further application for an extension of time. That application has yet to be determined.
Discussion
There is no justification for the appeal to be adjourned indefinitely. The judgment directing the removal of Mr Pool as a trustee was delivered almost a year ago. It has been implemented. A stay of execution was declined. Mr Pool’s caveat over the Trust’s property was removed by consent. If the appeal is to proceed, that should occur promptly.
So far as Mr Pool’s first request is concerned, this Court does not appoint legal counsel to assist parties in civil cases. From time to time the Court appoints counsel to assist the Court itself, usually on questions of law when it appears that the parties may not do so.[6] However that does not appear to be necessary in this case. In any event it is not the role of counsel assisting the Court to assume the task of preparing and presenting an appeal on behalf of an appellant.
[6]Fahey v R [2017] NZCA 596, (2017) 28 CRNZ 733 at [64] and [105(b)].
Turning then to Mr Pool’s second request, the Court may appoint a litigation guardian if it is satisfied that the person for whom the litigation guardian is to be appointed is an incapacitated person: High Court Rules 2016, r 4.35(2)(b). An incapacitated person is defined in r 4.29 as follows:
incapacitated person means a person who by reason of physical, intellectual, or mental impairment, whether temporary or permanent, is—
(a)not capable of understanding the issues on which his or her decision would be required as a litigant conducting proceedings; or
(b)unable to give sufficient instructions to issue, defend, or compromise proceedings
Mr Pool has provided medical reports from September 2018 to the present time. In short Mr Pool suffers from medical conditions that affect his lung function and since at least December 2019 he has been exploring with medical assistance the possibility of a surgical option to improve the position of his diaphragm. In his most recent memorandum filed on 24 February 2020 he provided a copy of a pre-admission appointment notification in respect of a medical check prior to being booked for surgery. Whether, and if so when, Mr Pool will undergo the foreshadowed surgery is not made clear.
Mr Riches responded to the application in an email dated 25 February 2020 making the observation that Mr Pool had been capable of attending at the High Court and filing comprehensive and detailed memoranda, affidavits and other material. Similarly the documents which he has filed in this Court are detailed and coherent. Mr Riches submitted that whatever medical issues Mr Pool is facing, they have not and do not prevent him engaging in the current proceedings which largely involves his own applications for extensions of time. Mr Riches submits that Mr Pool has not identified any reason why he cannot engage counsel to advance his appeal.
We recognise that if Mr Pool undergoes surgery, then at that time and for a period of recuperation he may not be able to actively progress his appeal in person. However on the basis of the information which Mr Pool has provided it is not apparent to us that he satisfies either of the criteria in the definition of incapacitated person. It is clear from his conduct of this litigation to date that Mr Pool well understands the issues involved. Furthermore we do not accept that he is unable to give sufficient instructions to progress the appeal. Consequently his application for the appointment of a litigation guardian must be declined.
Result
Mr Pool’s application for appointment of legal counsel and other orders is declined.
Further directions
Like his first application for an extension of time granted in September 2019, Mr Pool’s current application for a further extension of time will be determined on the papers by two judges.
If Mr Pool wishes to file any further submissions in support of his application, such submissions are to be filed and served by 11 March 2020.
Any submissions of the respondents in opposition are to be filed by 25 March 2020.
Solicitors:
Saunders & Co, Christchurch for Respondents
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