Taylor v Small
[2020] NZHC 1410
•22 June 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-864
[2020] NZHC 1410
UNDER The Declaratory Judgments Act 1908 IN THE MATTER
of an application for a Declaratory Judgment
BETWEEN
WILLIAM PETER TAYLOR AND SUSAN MARY TAYLOR
First Plaintiffs
AND
SCOTT KERRY JACKSON AND SARAH ANNE JACKSON
Second Plaintiffs
AND
RICHARD DONALD JOHNSTON AND RACHEL ELIZABETH JOHNSTON
Third Plaintiffs
AND
TREVOR FRANK SAVORY AND SALLIE ANN RENWICK
Fourth Plaintiffs
AND
GEOFFREY CLEMMENT SMALL AND ARIA SMALL
First Defendants
AND
BOMBAY INVESTMENTS LIMITED
Second Defendant
Hearing: 17 June 2020 Appearances:
G Steyn for Second & Fourth Plaintiffs First Defendants in person
Judgment:
22 June 2020
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 22 June 2020 at 3:30 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Grove Darlow & Partners, Auckland
TAYLOR v JACKSON [2020] NZHC 1410 [22 June 2020]
Introduction
[1] This proceeding is set down for trial over three days, commencing 27 July 2020. By application dated 5 June 2020 the first defendants apply for an order that the Court appoints counsel to assist the Court at trial. The second and fourth plaintiffs oppose the application.
[2] Mr Geoffrey Small and his wife Ms Aria Small (the first defendants), appear in person and are self-represented. Throughout the prior course of this extensive litigation the first defendants were represented by solicitors and counsel, however they have since terminated their engagement.
[3] In September 2019 the first and third plaintiffs discontinued their claims against the first and second defendants,1 leaving the second and fourth plaintiffs to pursue their claims against them.
The application
[4]The first defendants’ application is made on the grounds:
(a)that we are self-represented and don’t understand the procedures and wish to make it easier for the Judge to deal with the proceeding with Counsel assisting.
(b)the costs awarded to us from the High Court of Appeal [sic] have still not been received.
(c)due to Covid-19 [Mr Small’s] work has reduced significantly.
[5] The first defendants have not supported their application with an affidavit, however, in response to questions from the Court they say that although they have significant property assets, they do not have any available liquid funds with which to meet the legal fees required to engage and retain solicitors and counsel to represent them at the hearing scheduled to commence on 27 July 2020. Mr Small explained that he and his wife have already expended a considerable sum on lawyers’ fees and do not wish to continue to do so. They say however, that they have not applied for legal aid
1 Notice of discontinuance, 2 September 2019.
as they anticipate that their application would not succeed because of the value of their real estate assets.
[6] Mr Steyn, for the second and fourth plaintiffs, notes that in September 2019 Lang J directed a trial of the proceeding and scheduled the trial to commence on 4 May 2020. Mr Steyn says that although the second and fourth plaintiffs have filed further evidence and submissions in accordance with the Court’s timetable directions, the first defendants failed to do so.
[7] For reasons associated with the COVID-19 pandemic, the Court of its own motion adjourned the trial scheduled for 4 May 2020, and on 11 May set the new trial date of 27 July 2020.
[8] Mr Steyn says that while the second and fourth plaintiffs adopt a neutral position as regards the issue of the appointment of counsel to assist the Court, they oppose any appointment of counsel that would risk the trial scheduled for 27 July 2020 being delayed and further adjourned.
[9] Mr Steyn submits that the Court should not appoint counsel to assist the Court as a means of effectively providing legal aid to the first defendants by reason of their impecuniosity or their inability to understand the rules of procedure and law relevant to the proceeding.
The law
[10] Rule 10.22 of the High Court Rules 2016 contains the power to appoint counsel to assist the court. The decision to appoint is “quintessentially, a judicial discretion.”2
[11] The power is appropriately exercised where the case raises complex or difficult issues or to present opposing arguments from the point of view of a contradictor, so that both sides of the case can be heard and considered, where either there is no other party taking an active role in the proceeding as a contradictor, or where for some other reason the court considers that it would be assisted by hearing from counsel so as to
2 Erwood v Holmes [2017] NZHC 1278 at [40].
be fully informed as regards the availability and merit of any contrary arguments and contentions that should also be taken into account.
[12] In Erwood v Holmes, Moore J identified the following classes of case as warranting the appointment of counsel assisting:3
(a)…[W]here important issues may arise for determination but where a party to the proceedings has chosen not to participate…
(b)Where the case raises issues, the determination of which are likely to significantly affect the interest of a sector of society which is not a party to the proceedings…
(c)Where the case may involve complex issues of human rights or international law…
(d)…[W]here the case involves confidential information which cannot be disclosed to a defendant or [her or] his counsel.
He observed that the examples “emphasise that the core nature of the role and its primary purpose is to assist the Court rather than the parties to the litigation”.4
[13] In its 2012 review of the Judicature Act 1908, the Law Commission contemplated that the jurisdiction might be exercised where one of the parties was not represented by counsel, however it emphasised that:5
…care should be taken not to allow the role of counsel assisting the court to become a surrogate or parallel legal aid system. Where a party chooses to be self-represented, appointment of a friend of the court may be inappropriate. Similarly, where legal aid has been declined and the affected party seeks the appointment of counsel to assist the court, care must be taken not to undermine the legal aid decision.
Justice Moore reiterated this caution in Erwood v Holmes,6 observing further that:7
It must not be overlooked that counsel assisting are financed out of the public purse. Often there is a public interest in particular litigation which justifies the public expense associated with the appointment of counsel assisting. Where, however, the purpose of the appointment is primarily to streamline the case of
3 Erwood v Holmes [2017] NZHC 1278 at [39].
4 At [39].
5 Law Commission Review of the Judicature Act 1908 – Towards a Consolidated Courts Act (NZLC IP29) at 157 [15.27].
6 Erwood v Holmes [2017] NZHC 1278 at [36].
7 At [58].
a self-represented litigant in private litigation, the Court rightly hesitates before making such an appointment.
Discussion and decision
[14] The Court’s power to appoint counsel to assist the Court is not appropriately employed to provide a party with legal counsel simply because they have elected to be self-represented. The proper function of counsel to assist, is that of adopting a neutral position, and the role of counsel to assist the Court in a case such as the present would not extend to effectively representing the first defendants in place of their own counsel.
[15] The present case centres on a dispute between the parties over whether the first defendants’ construction of an equestrian facility on their property is in breach of a restrictive covenant and does not involve any aspect of public interest such as would lead the Court to consider there was justification for the appointment of counsel to assist.
[16] The applicants have failed to satisfy me that there is any evidential basis or cogent ground for the appointment of counsel to assist the Court at the hearing. Having elected to be self-represented and having chosen not to make an application for legal aid, the first defendants cannot secure representation by way of an order for the appointment of counsel to assist the Court.
[17] While this Court appreciates that there are significant financial barriers to civil justice,8 in circumstances where parties find that they are unable to themselves meet the costs of engaging professional legal representation, the amicus curiae jurisdiction of the Court is not to be employed as an alternative to making an application for legal aid.
8 Her Honour, Justice Helen Winkelmann, Chief High Court Judge (as she then was) “Access to Justice – Who needs lawyers” (Ethel Benjamin Address, 7 November 2014).
Result
[18] The application brought by the first defendants for an order of the Court appointing counsel to assist the court at the hearing on 27 July 2020 is accordingly declined.
[19]Costs on this application are reserved.
Paul Davison J