Remnant v Mills
[2020] NZHC 1937
•4 August 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2020-409-268
[2020] NZHC 1937
BETWEEN HEATHER IRENE REMNANT
Plaintiff
AND
JEFFREY HARGEN MILLS
Defendant
Hearing: On the papers Counsel:
C M Hanafin and A G Needham for Plaintiff S J Layburn and T J Flintoff for Defendant
Judgment:
4 August 2020
JUDGMENT OF ASSOCIATE JUDGE LESTER
(on application to appoint litigation guardian)
This judgment was delivered by me on 4 August 2020 at 4.15 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar 4 August 2020
REMNANT v MILLS [2020] NZHC 1937 [4 August 2020]
[1] The plaintiff, Ms Remnant, seeks summary judgment in respect of amounts payable under a relationship property agreement entered into at a mediation convened on 17 February 2020. The defendant, Mr Mills, was served on 22 June 2020. The first call of the summary judgment application is on 6 August 2020.
[2] Mr Mills’ present wife, Fleur Mills, has applied on a without notice basis to be appointed litigation guardian for her husband and to extend time for filing papers in opposition to the summary judgment application. That application was filed with the Court on 31 July 2020. Ms Mills calculates the notice of opposition had to be filed on 31 July 2020.
[3] Ms Mills explains in her affidavit (affirmed 31 July 2020), that Mr Mills wants to set aside the agreement reached at mediation on the grounds that at the time of the mediation his decision making capacity was impaired. Ms Mills seeks to be appointed litigation guardian on the grounds that she believes Mr Mills is not capable of understanding the issues involved in the litigation to be commenced in the Family Court or to give instructions to defend the present proceedings. The application to appoint a litigation guardian is made pursuant to r 4.30(1) High Court Rules 2016 which provides “an incapacitated person must have a litigation guardian as his or her representative in any proceeding, unless the court otherwise orders”.
[4]Rule 4.29 defines “incapacitated person” as:1
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.
[5] Ms Mills has obtained a specialist report from Dr Dominic Lim who is a Consultant Psychiatrist of Christchurch. Dr Lim’s scope of practice includes general and old age psychiatry. He has provided a lengthy report dated 13 July 2020 into Mr Mills’ capacity. Dr Lim was asked to address a number of specific questions, some
1 High Court Rules 2016, r 4.29.
of which go back to Mr Mills’ mental state at the time of the relationship property agreement, but there is a specific question as to Mr Mills’ present capacity is to make informed decisions and give instructions in respect of litigation covering financial, relationship and trust matters. Dr Lim at para 13.5.1 of his report says:
I consider that currently Jeff still retains overall the capacity to make such informed decisions and in particular, to give instructions on these matters; if he is in an optimal mental space and not under stress. However, he will need close supervision and assistance from a trusted individual, E.g. Fleur, to assist in arriving at such decisions. He will need time to work through options. He will need reminders regarding his vulnerability particular at the time when he is tired or on treatment.
[6] Accordingly, while the medical evidence does not in some ways meet the definition of incapacitated person, it identifies that when Mr Mills is under stress, as he is likely to be in the course of litigation, he may be unable, without assistance, to make informed decisions and give instructions in respect of the litigation.
[7] Mr Mills has filed an affidavit (affirmed 31 July 2020) supporting the application. He says he is not confident he can instruct his lawyer to run his case and that he has to rely on his wife. He expressly consents to his wife being appointed as litigation guardian in this proceeding and in an application to the Family Court to set aside the relationship property agreement.
[8] I do not have jurisdiction to appoint Fleur Mills litigation guardian in respect of the proposed Family Court application. There will need to be a separate application to that Court.
[9] It is clear Mr Mills seeks the assistance of his wife on a formal basis. Mr Mills may only need that assistance when under pressure or under the stress of litigation.
[10] In all the circumstances, I consider it appropriate that there be an order appointing Fleur Mills litigation guardian for Jeffrey Hargen Mills in respect of this proceeding. That order is made on the condition that while Mr Mills is lucid and able to make his own decisions, as appears will be the case in the absence of the stresses and pressures of litigation, Ms Mills is to defer to Mr Mills’ wishes.
[11] I am not prepared to deal with the application to extend time for filing of papers in opposition on a without notice basis. This matter is for call on Thursday 6 August 2020 and the timing of future steps is a matter on which Ms Remnant should be heard. A copy of this judgment is to be sent to Ms Remnant’s solicitors.
[12] Documents filed after this judgment should in the intituling, refer to Mr Mills, by his litigation guardian, Fleur Mills.
[13] Counsel for Mr Mills should be in a position, when this matter is called, to advise Ms Remnant’s counsel and the Court when the application to set aside the relationship property agreement will be filed.
Associate Judge Lester
Solicitors:
Wynn Williams, Christchurch
Layburn Hodgins, Christchurch
Copy to counsel:
Tracy Flintoff, Barrister, Christchurch
Copy to:
Fleur Mills, Litigation Guardian for Mr Mills
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