So v Drumm - [2024] NZHC 354

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2211

[2024] NZHC 354

UNDER the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for review of a decision of the headmaster to remove the applicant from the roll of Mt Albert Grammar School

BETWEEN

SO by his Litigation Guardian, his mother Applicant

AND

PATRICK DRUMM and JOANNE MAREE WILLIAMS

Respondents

Hearing: 8 February 2024

Appearances:

R Cullen, self-represented applicant

P Robertson and K Griffiths for the Respondents

Judgment:

28 February 2024

JUDGMENT OF GORDON J

This judgment was delivered by me
on 28 February 2024 at 2.15 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Heaney & Partners, Auckland Copies to: R Cullen
Litigation Guardian

SO v DRUMM [2024] NZHC 354 [28 February 2024]

[1] Rhys Cullen has applied to be appointed litigation guardian of a minor SO who has brought judicial review proceedings against the respondents Patrick Drumm and Joanne Williams, the Principal1 and Associate Principal respectively of Mount Albert Grammar School (the school). In this judgment references to the respondent will be to Mr Drumm only.2

[2] Mr Cullen has known SO since early 2022 when SO began attending the youth development programme offering a gym, tutoring and life-skills, that Mr Cullen manages.

[3] Mr Cullen also applies to be appointed litigation guardian of two other minors, FO and SP, on the basis that there is an application that they be joined as plaintiffs to the judicial review proceedings brought by SO. That application to be joined has not yet been heard. There is limited evidence as to Mr Cullen’s connection with SP and little, if any, in relation to FO.

[4] Mr Drumm opposes the application for Mr Cullen to be appointed litigation guardian for all three minors. Mr Cullen says Mr Drumm and Ms Williams lack standing to oppose.

[5] I will first consider the application in relation to SO. Then, if necessary, I will consider the application in relation to FO and SP. The issues to be decided are:

(a)does Mr Drumm have standing to oppose Mr Cullen’s appointment; and

(b)is Mr Cullen a suitable litigation guardian for SO (having regard to the relevant provisions in the High Court Rules 2016 (HCR)).

1 Mr Drumm refers to himself as the Headmaster as well as the Principal. I will use the term Principal, as recognised in the Education and Training Act 2020.
2 The parties appear to agree that Ms Williams should be removed as a respondent (but an order to that effect has not yet been made). In a memorandum dated 28 August 2023 filed by Mr Cullen in support of his application to be appointed litigation guardian he says that he included Ms Williams as a respondent in the draft statement of claim filed with his application because he had been told by the school that Mr Drumm was on leave at that time and Ms…

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.

Continue reading So v Drumm

Details

AGLC: So v Drumm [2024] NZHC 354
Case: [2024] NZHC 354
Decision Date: 28 February 2024

CaseChat Overview and Summary

Rhys Cullen has applied to be appointed as the litigation guardian of SO, a minor student who has brought judicial review proceedings against Patrick Drumm and Joanne Williams, the Principal and Associate Principal of Mount Albert Grammar School. Mr Cullen has known SO since early 2022 when SO began attending a youth development programme that Mr Cullen manages. Mr Drumm opposes Mr Cullen’s appointment as litigation guardian, arguing that Mr Cullen lacks standing to oppose and is not suitable for the role. The key issues before the Court were whether Mr Drumm has standing to oppose Mr Cullen’s appointment and whether Mr Cullen is a suitable litigation guardian for SO.

The Court found that Mr Drumm did not have standing to oppose Mr Cullen’s appointment as litigation guardian. While a Principal may be reasonably connected to students at their school, the Court found that Mr Drumm was not reasonably connected to SO since SO is no longer on the school roll. However, the Court considered it appropriate to assess Mr Cullen’s suitability as litigation guardian on the evidence available.

The Court refused to appoint Mr Cullen as litigation guardian for SO, finding that Mr Cullen would not represent SO’s interests in a fair and competent manner nor that he did not have interests adverse to those of SO. The Court cited several reasons, including that the proceedings have been delayed by Mr Cullen’s application, that Mr Cullen has had increasingly fraught interactions with the school, and that Mr Cullen has ongoing litigation against the school. The Court also noted aspects of Mr Cullen’s character, including his deregistration as a medical practitioner and criminal convictions, that raised questions about his objectivity and suitability as litigation guardian.

Accordingly, the Court refused Mr Cullen’s application to be appointed litigation guardian for SO. SO’s mother, who was already appointed litigation guardian, remains in that role. The Court also refused Mr Cullen’s application to be appointed litigation guardian for the other two students, FO and SP. The respondent, as the successful party, is entitled to costs but these are reserved pending any agreement between the parties.

Orders